Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions: (a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction. (b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares. (c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that: (i) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b); (ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect; (iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement; (iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act; (v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be; (vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws; (vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement; (viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements; (A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York; (x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus; (xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings; (xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect; (xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect; (xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect; (xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock; (xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and (xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. (or, in the case of a Registration Statement filed pursuant to Rule 462(b) under the Act, not later than 10:00 P.M.), New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company Company, any Selling Stockholder or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwiseother), business, prospects, properties, net worth worth, or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, Shares or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder Stockholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, misleading if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date Date, an opinion of ▇▇▇▇▇▇▇ Holland & Berlin, CharteredKnight, counsel for the Company, Company and the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders")Stockholders, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses (and any amendment or supplement thereto), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a Material Adverse Effect;
(ii) Each Subsidiary which is a Florida corporation or partnership is either (i) a corporation duly incorporated or organized, validly existing and in good standing in Florida or (ii) a partnership duly organized and validly existing under the applicable laws of the State of Florida and the status of each such Subsidiary is active; to the knowledge of such counsel, each Subsidiary has the requisite corporate or partnership power to own and operate its property and assets and to transact the business in which it is engaged except where the failure to own or operate such property or assets or transact such business would not have a Material Adverse Effect; each Subsidiary which is a Delaware corporation is duly incorporated, validly existing and in good standing under the laws of the State of Delaware; and each Subsidiary is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a Material Adverse Effect;
(iii) To the knowledge of such counsel, the authorized and outstanding Capital Stock of the Company is as set forth under the caption "Capitalization" in the Prospectuses; and the authorized Capital Stock of the Company conforms in all material respects as to legal matters to the descriptions thereof contained in the Prospectuses under the caption "Description of Capital Stock"; all of the outstanding shares of capital stock of or ownership interests in each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights;
(iv) All the shares of Capital Stock of the Company outstanding prior to the issuance of the Shares to be issued and sold by the Company hereunder, have been duly authorized and validly issued, and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights;
(v) The Shares to be issued and sold to the U.S. Underwriters by the Company hereunder have been duly authorized and, when issued and delivered to the U.S. Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights that entitle or will entitle any person to acquire any securities of the Company upon the issuance thereof by the Company;
(vi) The form of certificates for the Shares conforms to the requirements of the Delaware General Corporation Law;
(vii) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the best knowledge of such counselcounsel after reasonable inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(iiviii) The Company has corporate power and authority to enter into this Agreement and to issue, sell and deliver the Shares, and this Agreement has been duly authorized, executed and delivered by the Company;
(ix) Neither the issuanceoffer, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting this Agreement, or compliance by the Company with all the provisions of this Agreement and the International Underwriting Agreement, hereof nor consummation by the Company of the transactions contemplated hereby conflicts or by the International Underwriting Agreement will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreementby-laws, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statementorganizational documents, or, except as disclosed in the Registration Statement, will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under of the Subsidiaries or any such agreement, indenture, lease agreement or other instrument, which breach default or other event would have a Material Adverse Effectdocument relating to the Capital Stock of the Company, nor will any such action result in any violation of any existing law, regulation, ruling rule (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order ruling or court decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary the Subsidiaries or any of their respective properties, which violation would have a Material Adverse Effect;
(iiix) No consent, approval, authorization or other orderorder of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting this Agreement;
(ivxi) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, statements and the notes thereto and the schedules and other financial and statistical data included therein or omitted therefromtherein, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(vxii) To the knowledge of such counsel, (A) other than as described or contemplated in the ProspectusesProspectuses (or any supplement thereto), there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary of the Subsidiaries, or to which the Company's Company or any Subsidiary's properties are of the Subsidiaries, or any of their property, is subject, which, if adversely determined, would reasonably which are required to be expected to have a Material Adverse Effect, described in the Registration Statement or Prospectuses (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vixiii) The U.S. Underwriting AgreementOther than with respect to federal, state or local broadcasting, licensing or communications law or regulatory matters, the International Underwriting statements in the Registration Statement and Prospectuses, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate and present fairly the information required to be shown;
(xiv) This Agreement and the Custody Agreements Agreement have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders Stockholders and are valid and binding agreements of each TG Selling Shareholder Stockholder enforceable against each TG Selling Shareholder Stockholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such lawsterms;
(viixv) Each TG To the knowledge of such counsel, each Selling Shareholder Stockholder has full legal right, power and authorityauthorization, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder Stockholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting this Agreement;
(viiixvi) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting this Agreement and the Custody Agreement by the TG Selling Shareholders Stockholders and the consummation of the transactions contemplated hereby and thereby will not conflict with, constitute violate, result in a breach of, of or constitute a default under the terms or provisions of any material agreement, indenture, lease mortgage or other instrument known to such counsel to which any TG Selling Shareholder Stockholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be or any law, rule, or regulation applicable to any TG Selling Shareholder Stockholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting AgreementsStockholder;
(Axvii) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon Upon delivery of the Additional Shares pursuant to be sold by such TG Selling Shareholder hereunder this Agreement and payment of the purchase price therefor as contemplated herein contemplated, each of the U.S. Underwriters will receive acquire good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledgelien, lienclaim, security interest, or other encumbrance, claim restriction on transfer or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used other defect in Section 8-302 of the Uniform Commercial Code in effect in the State of New Yorktitle;
(xxviii) The Section 214 Switched Voice Authorization, Company is not an "investment company" or a company "controlled by an investment company" within the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each meaning of the Investment Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 19341940, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xviixix) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, accuracy or completeness or fairness of the statements in the Registration StatementStatement or the Prospectuses, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company)thereof, and no facts have nothing has come to the attention of such counsel that would lead has caused them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates date and as of the Closing Date or the Option Closing Date, as the case may be, 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 or that any amendment or supplement to the Prospectuses, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included in the Registration Statement or the Prospectuses).
(d) You shall have received on the Closing Date an opinion of Anth▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇q., General Counsel to the Company, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company and each of the Subsidiaries has full corporate or partnership power and authority, and all necessary governmental authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental regulatory officials and bodies (except where the failure so to have any such authorizations, approvals, orders, licenses, certificates, franchises or permits, individually or in the aggregate, would not have a Material Adverse Effect), to own their respective properties and to conduct their respective businesses as now being conducted, as described in the Prospectuses;
(ii) Except as disclosed in the Prospectuses, all the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any lien, adverse claim, security interest, equity, or other encumbrance;
(iii) This Agreement is a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms (it being noted, without expressing any opinion with regard to the federal securities laws and regulations, that the Commission has expressed the view that indemnification against securities law liabilities is against public policy) and subject to the qualification that the enforceability of the Company's obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles;
(iv) Each of the Company and the Subsidiaries has all corporate or partnership power and authority, as the case may be, to execute, deliver and perform each of the Transaction Documents to which it is a party, to perform all of its obligations thereunder and to consummate the transactions contemplated thereby;
(v) Neither the Company nor any of the Subsidiaries is in violation of its certificate or articles of incorporation or by-laws, or other organizational documents, or to the knowledge of such counsel after reasonable inquiry, is in default (and no event has occurred which with notice or lapse of time, or both, would constitute a default) in the performance of any obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness;
(vi) Except as disclosed in the Registration Statement and the Prospectuses, to the knowledge of such counsel, neither the offer, sale or delivery of the Shares, the execution, delivery or performance of this Agreement and the other Transaction Documents, compliance by the Company or the Subsidiaries (to the extent a party thereto) with the provisions hereof or thereof nor consummation by the Company or the Subsidiaries (to the extent a party thereto) of the transaction contemplated hereby or thereby, conflict or will conflict with or constitute or will constitute a breach of, or a default under the certificate or articles of incorporation or by-laws, or other organizational documents, of the Company or any of the Subsidiaries or any agreement, indenture, lease or other instrument to which the Company or any of the Subsidiaries is a party or by which any of them or any of their respective properties is bound or will re
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Paxson Communications Corp)
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your reasonable opinion, as Representatives of the several U.S. Underwriters, would materially, materially and adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder Stockholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your reasonable opinion, as Representatives of the several U.S. Underwriters, materially and adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇from ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇ (▇▇▇, corporate counsel for the "TG Company and the Selling Shareholders")Stockholders, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Registration Statement and all post-effective amendments, if any, have has become effective under the Act and the Prospectus was filed on the date specified in such opinion pursuant to the subsection set forth in such opinion of Rule 424(b) of the rules and regulations of the Commission under the Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or proceeding for that purpose are pending before has been instituted or contemplated threatened by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions Each of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles valid and legally binding obligation of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effectenforceable against the Company in accordance with its terms;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described made in the Prospectuses under the captions "Risk Factors -- Substantial Government RegulationBusiness," "Description of Capital Stock," "Description of Indebtedness," "Certain Transactions" and "Business -- Government Regulation Overview.Underwriting," For the purpose insofar as they purport to constitute summaries of making this statementcertain terms of documents referred to therein, we have relied upon our discussions with management constitute accurate summaries of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention terms of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a documents in all material fact or omitted respects;
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of on the Company or and the Subsidiaries Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder Stockholder which makes any statement of material fact made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements of material fact therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ counsel for the Company and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders")Stockholders, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, in substantially the form of Exhibit A hereto.
(d) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the U.S. Underwriters, dated the Closing Date, with respect to the effect that:Registration Statement and the Prospectuses and such other related matters as you may reasonably request.
(e) You shall have received a letter addressed to you, as Representatives of the several U.S. Underwriters, and dated the date hereof and the Closing Date from Price Waterhouse LLP, independent certified public accountants, substantially in the forms heretofore approved by you.
(i) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no No stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that purpose are pending before or shall have been taken or, to the knowledge of the Company, shall be contemplated by the CommissionCommission at or prior to the Closing Date; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither there shall not have been any material change in the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws capital stock of the Company or its Subsidiaries or nor any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed increase in the Registration Statement, will result in the creation short-term or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under any such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part long-term debt of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal ordinary course of business) from that set forth or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described contemplated in the Registration Statement or the Prospectuses (or to be filed any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as an exhibit to of which information is given in the Registration Statement that and the Prospectuses (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement and Prospectuses (or any amendment or supplement thereto), any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Company and the Subsidiaries taken as a whole; and (iv) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date (except to the extent they expressly relate to an earlier date), and you shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (or, at the Company's option, such other officers as are not described or filed as requiredacceptable to you), as to the case may be;effect set forth in this Section 10(f) and in Section 10(g) hereof.
(vig) The U.S. Underwriting Agreement, Company shall not have failed in any material respect at or prior to the Closing Date to have performed or complied with any of its agreements contained in this Agreement or the International Underwriting Agreement and required to be performed or complied with by it hereunder at or prior to the Custody Agreements Closing Date.
(h) All the representations and warranties of the Selling Stockholders contained in this Agreement shall be true and correct in all material respects, on and as of the date hereof and on and as of the Closing Date (except to the extent they expressly relate to an earlier date), as if made on and as of the Closing Date, and you shall have each been duly executed received a certificate, dated the Closing Date and delivered signed by or on behalf of each of Selling Stockholder to the TG Selling Shareholders effect set forth in this Section 10(h) and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that Section 10(i) hereof.
(i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium The Selling Stockholders shall not have failed in any material respect at or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and prior to the discretion of the court before which the proceedings may be brought and (iii) rights Closing Date to indemnity and contribution thereunder may be limited by Federal have performed or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or complied with any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into agreements contained in this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation and required to be performed or complied with by them at or prior to the Closing Date.
(j) The Sellers shall have furnished or caused to be furnished to you such further certificates and documents as you shall have reasonably requested.
(k) The Common Stock shall have been listed or approved for listing subject to notice of issuance, on the New York Stock Exchange.
(l) The closing of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization Reclassification and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance Stock Split (as defined in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except Prospectuses) as described in the Prospectuses shall have occurred.
(m) The closing under the captions "Risk Factors -- Substantial Government Regulation" International Underwriting Agreement shall have occurred concurrently with the closing hereunder on the Closing Date, unless such closing shall have failed to occur solely as a result of the failure to occur of the closing hereunder.
(n) The closing of the Acquisition of Falconite under the Stock Purchase Agreement shall have occurred concurrently with the closing hereunder on the Closing Date. All such opinions, certificates, letters and "Business -- Government Regulation Overview." For other documents will be in compliance with the purpose of making this statement, we have relied upon our discussions with management provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Company or any Selling Stockholder and our review of any portions delivered to you, as Representatives of the opinions of local U.S. Underwriters, or to counsel of Australiafor the U.S. Underwriters, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, shall be deemed a representation and the United Kingdom specifically regarding the provision of international call-back service provided warranty by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, Selling Stockholders or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Dateparticular Selling Stockholder, as the case may be, contained an untrue statement to each U.S. Underwriter as to the statements made therein. The several obligations of a material fact the U.S. Underwriters to purchase Additional Shares hereunder are subject to the satisfaction on and as of any Option Closing Date of the conditions set forth in this Section 10, except that, if any Option Closing Date is other than the Closing Date, the certificates, opinions and letters referred to in this Section 10 shall be dated the Option Closing Date in question and the opinions or omitted letters called for by paragraphs (c), (d) and (e) shall be revised to reflect the sale of Additional Shares.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (National Equipment Services Inc)
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares and the Firm Warrants hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Offered Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. (or, in the case of a Registration Statement filed pursuant to Rule 462(b) under the Act, not later than 10:00 P.M.), New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and be in effect and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company Company, any Selling Securityholder or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwiseother), business, prospects, properties, net worth worth, or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, Offered Shares or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder Securityholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make 36 the statements therein not misleading, misleading if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Offered Shares.
(c) You shall have received on the Closing Date Date, an opinion of Holland & Knight, counsel for the Company and Second Crys▇▇▇ ▇▇▇▇▇▇▇, ▇.P., Jame▇ & Berlin▇. ▇▇▇▇▇▇, Chartered▇▇an ▇. ▇▇▇▇▇▇▇, counsel for the Company▇▇n ▇▇▇ Hoke▇, the Gratzons▇▇▇▇▇▇ ▇. ▇▇▇, Anth▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ S. Will▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the "TG Selling ShareholdersManagement Stockholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses (and any amendment or supplement thereto), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify does not have a Material Adverse Effect;
(ii) Each Subsidiary which is a Florida corporation or partnership is either (i) a corporation duly incorporated or organized, validly existing and in good standing in Florida or (ii) a partnership duly organized and validly existing under the applicable laws of the State of Florida and the status of each such Subsidiary is active; to the knowledge of such counsel, each Subsidiary has the requisite corporate or partnership power to own and operate its property and assets and to transact the business in which it is engaged except where the failure to own or operate such property or assets or transact such business would not have a Material Adverse Effect; each Subsidiary which is a Delaware corporation is duly incorporated, validly existing and in good standing under the laws of the State of Delaware; and each Subsidiary is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business 37 requires such registration or qualification, except where the failure so to register or qualify does not have a Material Adverse Effect;
(iii) To the knowledge of such counsel after reasonable inquiry, the authorized and outstanding Capital Stock of the Company is as set forth under the caption "Capitalization" in the Prospectuses; and the authorized Capital Stock of the Company conforms in all material respects as to legal matters to the descriptions thereof contained in the Prospectuses under the caption "Description of Capital Stock"; all of the outstanding shares of capital stock of or ownership interests in each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights;
(iv) All the shares of Capital Stock of the Company outstanding prior to the issuance of the Shares to be issued and sold by the Company hereunder and the Warrant Shares have been duly authorized and validly issued and are fully paid and nonassessable and were not issued in violation of any preemptive or similar rights; the Warrant Shares have been validly reserved for issuance[; when issued upon exercise of the Warrants, the Warrant Shares will be duly authorized and validly issued and will be fully paid and non-assessable and will not be issued in violation of any preemptive or similar rights];
(v) The Offered Shares to be issued and sold to the U.S. Underwriters by the Company hereunder (including the Warrant Shares) have been duly authorized and, when issued and delivered to the U.S. Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and free of any preemptive or similar rights that entitle or will entitle any person to acquire any securities of the Company upon the issuance thereof by the Company;
(vi) The form of certificates for the Offered Shares conforms to the requirements of the Delaware General Corporation Law;
(vii) The Registration Statement and all post-effective amendments, if any, have become effective 38 under the Act and, to the knowledge of such counselcounsel after reasonable inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(iiviii) The Company has corporate power and authority to enter into this Agreement and to issue, sell and deliver the Offered Shares, and this Agreement has been duly authorized, executed and delivered by the Company;
(ix) Neither the issuanceoffer, sale or delivery of the Underwritten Offered Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting this Agreement, or compliance by the Company with all the provisions of this Agreement and the International Underwriting Agreement, hereof nor consummation by the Company of the transactions contemplated hereby conflicts or by the International Underwriting Agreement will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreementby-laws, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statementorganizational documents, or, except as disclosed in the Registration Statement, will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under of the Subsidiaries or to the knowledge of such counsel after reasonable inquiry any such agreement, indenture, lease agreement or other instrument, which breach default or other event would have a Material Adverse Effectdocument relating to the Capital Stock of the Company, nor will any such action result in any violation of any existing law, regulation, ruling rule (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order ) or decree known to the knowledge of such counsel after reasonable inquiryinquiry judgment, to be ruling or court decree applicable to the Company, any Subsidiary the Subsidiaries or any of their respective properties, which violation would have a Material Adverse Effect;
(iiix) No consent, approval, authorization or other orderorder of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Offered Shares) for the valid issuance and sale of the Offered Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting this Agreement;
(ivxi) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, statements and the notes thereto and the schedules and other financial and statistical data included therein or omitted therefromtherein, as to which such counsel need not 39 express any opinion) comply as to form in all material respects with the requirements of the Act;
(vxii) To the knowledge of such counselcounsel after reasonable inquiry, (A) other than as described or contemplated in the ProspectusesProspectuses (or any supplement thereto), there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary of the Subsidiaries, or to which the Company's Company or any Subsidiary's properties are of the Subsidiaries, or any of their property, is subject, which, if adversely determined, would reasonably which are required to be expected to have a Material Adverse Effect, described in the Registration Statement or Prospectuses (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vixiii) The U.S. Underwriting AgreementOther than with respect to federal, state or local broadcasting, licensing or communications law or regulatory matters, the International Underwriting statements in the Registration Statement and Prospectuses, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate and present fairly the information required to be shown;
(xiv) This Agreement and the Custody Agreements Agreement have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders Management Stockholders and are valid and binding agreements of each TG Selling Shareholder Management Stockholder enforceable against each TG Selling Shareholder Management Stockholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such lawsterms;
(viixv) Each TG Selling Shareholder To the knowledge of such counsel after reasonable inquiry, each Management Stockholder has full legal right, power and authorityauthorization, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder Management Stockholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting this Agreement;
(viiixvi) The To the knowledge of such counsel after reasonable inquiry the execution and delivery of the U.S. Underwriting Agreement, the International Underwriting this Agreement and the Custody Agreement by the TG Selling Shareholders Management Stockholders and the consummation of the transactions 40 contemplated hereby and thereby will not conflict with, constitute violate, result in a breach of, of or constitute a default under the terms or provisions of any material agreement, indenture, lease mortgage or other instrument known to such counsel to which any TG Selling Shareholder Management Stockholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be or any law, rule, or regulation applicable to any TG Selling Shareholder Management Stockholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting AgreementsManagement Stockholder;
(Axvii) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon Upon delivery of the Additional Offered Shares and the Warrants pursuant to be sold by such TG Selling Shareholder hereunder this Agreement and payment of the purchase price therefor as herein contemplatedcontemplated herein, and assuming that each purchasing U.S. Underwriter shall have purchased the Offered Shares and the Warrants in good faith without notice of the any adverse claim, such U.S. Underwriters Underwriter will receive acquire good and marketable title to its ratable share of the Additional Offered Shares purchased by it from such TG Selling Shareholder, and Warrants free and clear of any pledgelien, lienclaim, security interest, or other encumbrance, claim restriction on transfer or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used other defect in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiarytitle; and
(xviixviii) The Section 214 Switched Voice Authorization, Company is not an "investment company" or a company "controlled by an investment company" within the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws meaning of the countries in which they operateInvestment Company Act of 1940, as amended. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such Such counsel shall also state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, accuracy or completeness or fairness of the statements in the Registration StatementStatement or the Prospectuses, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company)thereof, and no facts have nothing has come to the attention of such counsel that would lead has caused them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates date and as of the Closing Date or the Option Closing Date, as the case may be, 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 or that any amendment or supplement to the Prospectuses, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the 41 circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial and statistical data included in the Registration Statement or the Prospectuses).
(d) You shall have received on the Closing Date an opinion of Anth▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇q., General Counsel to the Company, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company and each of the Subsidiaries has full corporate or partnership power and authority, and all necessary governmental authorizations, approvals, orders, licenses, certificates, franchises and permits of and from all governmental regulatory officials and bodies (except where the failure so to have any such authorizations, approvals, orders, licenses, certificates, franchises or permits, individually or in the aggregate, would not have a Material Adverse Effect), to own their respective properties and to conduct their respective businesses as now being conducted, as described in the Prospectuses;
(ii) Except as disclosed in the Prospectuses, all the outstanding shares of capital stock of each of the Subsidiaries are owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any lien, adverse claim, security interest, equity, or other encumbrance;
(iii) This Agreement is a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms (it being noted, without expressing any opinion with regard to the federal securities laws and regulations, that the Commission has expressed the view that indemnification against securities law liabilities is against public policy) and subject to the qualification that the enforceability of the Company's obligations hereunder may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors' rights generally and by general equitable principles; 42
(iv) Each of the Company and the Subsidiaries has all corporate or partnership power and authority, as the case may be, to execute, deliver and perform each of the Transaction Documents to which it is a party, to perform all of its obligations thereunder and to consummate the transactions contemplated thereby;
(v) Neither the Company nor any of the Subsidiaries is in violation of its certificate or articles of incorporation or by-laws, or other organizational documents, or to the knowledge of such counsel after reasonable inquiry, is in default (and no event has oc
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Paxson Communications Corp)
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your reasonable opinion, as Representatives of the several U.S. Underwriters, would materially, materially and adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder Stockholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your reasonable opinion, as Representatives of the several U.S. Underwriters, materially and adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇from ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇ (▇▇▇, corporate counsel for the "TG Company and the Selling Shareholders")Stockholders, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Registration Statement and all post-effective amendments, if any, have has become effective under the Act and the Prospectuses were filed on the date specified in such opinion pursuant to the subsection set forth in such opinion of Rule 424(b) of the rules and regulations of the Commission under the Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings or proceeding for that purpose are pending before has been instituted or contemplated threatened by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions Each of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles valid and legally binding obligation of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effectenforceable against the Company in accordance with its terms;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described made in the Prospectuses under the captions "Risk Factors -- Substantial Government RegulationBusiness," "Description of Capital Stock," "Description of Indebtedness," "Certain Transactions" and "Business -- Government Regulation Overview.Underwriting," For the purpose insofar as they purport to constitute summaries of making this statementcertain terms of documents referred to therein, we have relied upon our discussions with management constitute accurate summaries of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention terms of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a documents in all material fact or omitted respects;
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. P.M., New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwiseother), business, prospects, properties, net worth worth, or results of operations of the Company or and the Subsidiaries taken as a whole not contemplated by the Prospectuses, which in your reasonable opinion, as Representatives of the several U.S. Underwriters, would materially, materially adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date and any Option Closing Date an opinion of Cozen and ▇'▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, Company and the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date Date, and any Option Closing Date, as the case may be, and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses, and is in the process of qualifying in the jurisdictions set forth on Annex A to such opinion;
(ii) Each of the Subsidiaries organized under the laws of the United States or a state thereof ("U.S. Subsidiary") is either (A) a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its organization, or (B) a limited partnership duly organized under the laws of the Commonwealth of Pennsylvania;
(iii) The authorized and, to such counsel's knowledge, outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectuses; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectuses under the caption "Description of Capital Stock";
(iv) To the knowledge of such counsel, all the shares of capital stock of the Company outstanding prior to the issuance of the Shares to be issued and sold by the Company pursuant to the Underwriting Agreements have been duly authorized and validly issued, and are fully paid and nonassessable;
(v) The Underwritten Shares to be issued and sold to the U.S. Underwriters and Managers by the Company under the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized and, when issued and delivered to the U.S. Underwriters and Managers against payment therefor in accordance with the terms of the U.S. Underwriting Agreement and the International Underwriting Agreement, respectively, will be validly issued (assuming certificates for such Shares have been validly countersigned by the transfer agent for the Common Stock), fully paid and nonassessable and free of any (A) statutory preemptive rights or (B) to the knowledge of such counsel, similar rights that entitle or will entitle any person to acquire any Shares upon the issuance thereof by the Company;
(vi) The form of certificates for the Shares conforms to the requirements of the Pennsylvania Business Corporation Law of 1988, as amended;
(vii) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and and, to such counsel's knowledge, any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(iiviii) The Company has the requisite corporate power and authority to enter into the U.S. Underwriting Agreement and the International Underwriting Agreement and to issue, sell and deliver the Underwritten Shares to be sold by it to the U.S. Underwriters and Managers as provided therein, and each of the U.S. Underwriting Agreement and the International Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(ix) Neither the Company nor, to the knowledge of such counsel, any of the U.S. Subsidiaries is (A) in violation of its respective certificate of incorporation or bylaws or other organizational documents or (B) to the knowledge of such counsel, in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness that is filed as an exhibit to the Registration Statement, except as may be disclosed in the Prospectuses or where any such default or defaults in the aggregate would not, singularly or in the aggregate, have a Material Adverse Effect;
(x) None of the offer, issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance by the Company of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor or consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws or other organizational document of the Company or its any of the U.S. Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they it or any of their its properties is bound and that is made filed as an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will will, to such counsel's knowledge, result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of the U.S. Subsidiaries under any such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effectnor, nor to such counsel's knowledge, will any such action result in any violation of any existing law, regulation, ruling law or regulation (assuming compliance with all applicable state securities and or Blue Sky laws and foreign laws), or any ruling, judgment, injunction, order or decree of any court or governmental entity or instrumentality known to such counsel after reasonable inquirycounsel, to be and applicable to the Company, any Subsidiary the U.S. Subsidiaries or any of their respective properties, which violation would have a Material Adverse Effect;
(iiixi) No consent, approval, authorization or other orderorder of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or the Exchange Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Sharesforeign laws) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(ivxii) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefromtherein, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(vxiii) To the knowledge of such counsel, (A) other than as described or contemplated in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary of the U.S. Subsidiaries, or to which the Company's , the U.S. Subsidiaries or any Subsidiary's of their respective properties are is subject, which, if adversely determined, would reasonably which are required to be expected to have a Material Adverse Effect, described in the Registration Statement or Prospectuses (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiaryof the U.S. Subsidiaries, of a character that are required to be described in the Registration Statement or the Prospectuses (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vixiv) The To the knowledge of such counsel, the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements Agreement have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such lawsShareholders;
(viixv) The statements in the Registration Statement and Prospectuses, under the caption "Shares Eligible for Future Sale," insofar as they refer to statements of law or legal conclusions, are accurate in all material respects;
(xvi) Except as described in the Prospectuses, such counsel does not know of any outstanding option, warrant or other right calling for the issuance of, and such counsel does not know of any commitment, plan or arrangement to issue, any share of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company; and, except as described in the Prospectuses, such counsel does not know of any holder of any security of the Company or any other person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or permit them to underwrite the sale of, any of the Shares or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of Common Stock or other securities of the Company;
(xvii) The Company is not now and upon the sale of the Shares to be issued and sold in accordance herewith and upon application of the net proceeds from such sale as described in the Prospectuses under the caption "Use of Proceeds" will not be an "investment company" within the meaning of the 1940 Act;
(xviii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by lawlaw (except such as may be required under state securities or Blue Sky laws or foreign laws), to sell, assign, transfer and deliver good and marketable valid title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting this Agreement and the International Underwriting Agreement;
(viiixix) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting this Agreement and the Custody Agreement sale of the Shares by each Selling Shareholder to the TG Underwriters, and compliance by such Selling Shareholders Shareholder with the terms of this Agreement, including the delivery to the Underwriters of certificates evidencing such shares and the consummation execution and delivery to the U.S. Underwriters of a stock power in blank, have been duly authorized by all necessary action on the transactions contemplated thereby part of such Selling Shareholder and, to the knowledge of such counsel, do not, and will not not, conflict with, constitute or result in a breach of any of the terms and provisions of, or constitute a default under (I) any statute, rule or regulation (assuming compliance with all applicable state securities and Blue Sky laws or foreign laws) relating to such Selling Shareholder or its legal status in each case, that in the experience of such counsel are normally applicable to transactions of the type provided for in this Agreement, (II) any material agreementjudgment, indentureorder, lease rule, injunction or regulation of any court or governmental agency or body, domestic or foreign, known to such counsel or (III) any material contract, agreement or other instrument known to such counsel to which any TG such Selling Shareholder is a party or by which any of them it or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreementsits properties are subject;
(Axx) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon Upon delivery of the Additional Shares to be sold by such TG the Selling Shareholders pursuant to this Agreement and payment therefor as contemplated herein, the Underwriters will have acquired all rights of the Selling Shareholder hereunder and payment of in the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledgesecurity interest, mortgage, lien, security interestpledge, encumbrance, claim encumbrance or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictionsclaim. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration StatementStatement (except to the extent set forth in paragraphs (iii) and (xv) above), such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but and nothing has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted to state a material fact required to be stated or, necessary to make the statements therein, in the case of the Prospectuses, in the light of the circumstances under which they were made, not misleading or that any amendment or supplement to the Prospectuses, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated in the Prospectuses or necessary in order to make the statements therein, in the case of the Prospectuses, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no statement with respect to the financial statements, financial schedules, pro forma financial statements and the notes thereto and other financial and statistical data included in the Registration Statement or the Prospectuses). In rendering their opinion as aforesaid, counsel may, as to factual matters, rely, to the extent such counsel deems proper, upon written certificates or statements of officers of the Company and the Selling Shareholders. The foregoing opinion may be limited to the federal laws of the United States of America and the Commonwealth of Pennsylvania, and counsel rendering the foregoing opinion may rely as to questions of fact upon the representations of the Selling Shareholders as set forth in this Agreement and in the Custody Agreement.
(d) You shall have received on the Closing Date and any Option Closing Date an opinion of Blake, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and/or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Stirling Seals (as appropriate), Canadian counsel for the Canadian Subsidiary, dated the Closing Date and any Option Closing Date, as the case may be, and addressed to you, as Representatives of the several U.S. Underwriters, t
Appears in 1 contract
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of on the Company or and the Subsidiaries Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇Millbank, Tweed, ▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (counsel for the "TG Selling Shareholders")Company, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, in the form set forth on Schedule II hereof.
(d) You shall have received on the Closing Date an opinion of Nida & ▇▇▇▇▇▇▇, counsel for the Company, dated the Closing Date and addressed to you, as Representatives for the several U.S. Underwriters, in the form set forth on Schedule III hereof.
(e) You shall have received on the Closing Date opinions of foreign counsel, dated the Closing Date, concerning the Company's material foreign Subsidiaries in forms reasonably satisfactory to the effect that:Representatives of the several U.S. Underwriters and addressed to you, as Representatives of the several U.S. Underwriters.
(f) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the U.S. Underwriters, dated the Closing Date, in the form set forth on Schedule IV herefo.
(g) You shall have received letters addressed to you, as Representatives of the several U.S. Underwriters, and dated the date hereof and the Closing Date from KPMG Peat Marwick LLP, independent certified public accountants, substantially in the forms heretofore approved by you.
(i) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no No stop order suspending the effectiveness of the Registration Statement has shall have been issued and no proceedings for that purpose are pending before or shall have been taken or, to the knowledge of the Company, shall be contemplated by the CommissionCommission at or prior to the Closing Date; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither there shall not have been any material change in the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws capital stock of the Company or its Subsidiaries or nor any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed increase in the Registration Statement, will result in the creation short-term or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary under any such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part long-term debt of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal ordinary course of business) from that set forth or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described contemplated in the Registration Statement or the Prospectuses (or to be filed any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as an exhibit to of which information is given in the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed Prospectuses (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement and delivered by Prospectuses (or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcyany amendment or supplement thereto), insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect change in the State condition (financial or other), business, prospects, properties, net worth or results of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each operations of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in ; and (iv) all the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" representations and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management warranties of the Company contained in this Agreement shall be true and our review of any portions correct on and as of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, date hereof and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates on and as of the Closing Date as if made on and as of the Closing Date, and you shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the chief financial officer of the Company (or such other officers as are acceptable to you), to the effect set forth in this Section 8(h) and in Section 8(i) hereof.
(i) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(j) The Company shall have furnished or caused to be furnished to you such further certificates and documents as you shall have reasonably requested.
(k) The Common Stock shall have been listed or approved for listing, subject to notice of issuance, on the Nasdaq National Market.
(l) The closing under the International Underwriting Agreement shall have occurred on the Closing Date concurrently with the closing hereunder. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any executive officer of the Company and delivered to you, as Representatives of the U.S. Underwriters, or to counsel for the U.S. Underwriters, shall be deemed a representation and warranty by the Company to each U.S. Underwriter as to the statements made therein. The several obligations of the U.S. Underwriters to purchase Additional Shares hereunder are subject to the satisfaction on and as of any Option Closing Date of the conditions set forth in this Section 8, except that, if any Option Closing Date is other than the Closing Date, the certificates, opinions and letters referred to in this Section 8 shall be dated the Option Closing DateDate in question and the opinions or letters called for by paragraphs (c), as (d), (e), (f) and (g) shall be revised to reflect the case may be, contained an untrue statement sale of a material fact or omitted Additional Shares.
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase and pay for the Firm U.S. Shares hereunder are and the Additional U.S. Shares, as provided herein, shall be subject to the accuracy of the representations and warranties of the Company and Medaphis herein contained, as of the date hereof and as of the Closing Date (for purposes of this Section 8 "Closing Date" shall refer to the Closing Date for the Firm U.S. Shares and any Additional Closing Date, if different, for the Additional U.S. Shares), to the absence from any certificates, opinions, written statements or letters furnished to you or to Simp▇▇▇ ▇▇▇▇▇▇▇ & ▇art▇▇▇▇ ("▇nderwriters' Counsel") pursuant to this Section 8 of any misstatement or omission, to the performance by the Company of its obligations hereunder, and to the following additional conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the The Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. P.M., New York City time, on the date hereof, of this Agreement or at such later time and date and time as shall be have been consented to in writing by you; if the Company shall have elected to rely upon Rule 430A or Rule 434 of the Regulations, and all filings, if any, required by Rules 424 and 430A under the Act U.S. Prospectus shall have been filed with the Commission in a timely madefashion in accordance with Section 5(a) hereof; and, at or prior to the Closing Date no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been instituted or, to the knowledge of the Company initiated or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to At the effective date of this Agreement, there Closing Date you shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in received the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ King & Berlin, CharteredSpalding, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters and in form and substance satisfactory to Underwriters' Counsel, to the effect that:
(i) The Registration Statement Company has been duly organized and all post-effective amendments, if any, have become effective is validly existing as a corporation in good standing under the Act andlaws of its jurisdiction of incorporation. The Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its properties (owned, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before leased or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(blicensed) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreementnature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or compliance by in good standing which will not in the aggregate have a material adverse effect on the Company. The Company with has all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenturerequisite corporate authority to own, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their and license its respective properties is bound and that is made an exhibit to the Registration Statement, or, except conduct its business as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities now being conducted and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, U.S. Prospectus.
(ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder The Company has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor an authorized capital stock as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed set forth in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted U.S.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Healthcare Recoveries Inc)
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder Initial U.S. Securities under the U.S. Underwriting Agreement are subject to the satisfaction of each of the following conditions:
(a) If, at All the time this representations and warranties of the Company contained in the U.S. Underwriting Agreement shall be true and correct in all material respects on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) If the Company is executed and delivered, it is necessary for the required to file a Rule 462(b) Registration Statement or a post-effective amendment thereto to be declared effective before after the offering effectiveness of the Shares may commence, the U.S. Underwriting Agreement such Rule 462(b) Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. by 10:00 P.M., New York City time, on the date hereof, or at such later date of the U.S. Underwriting Agreement and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding proceedings for that purpose shall have been instituted commenced or shall be pending before or, to the knowledge of the Company or any U.S. UnderwriterCompany's knowledge, threatened contemplated by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of a certificate dated the Closing Date, signed by ▇. ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, and ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ in their capacities as the Chief Executive Officer and ▇▇▇▇▇ ▇▇▇▇▇▇ Chief Financial Officer of the Company, confirming the matters set forth in Sections 6(t), 8(a) and 8(b) and that the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by the Company on or prior to the Closing Date.
(d) Since the "TG Selling Shareholders"respective dates as of which information is given in the U.S. Prospectus other than as set forth in the U.S. Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the U.S. Underwriting Agreement), (i) there shall not have occurred any change or any development involving a prospective change in the condition, financial or otherwise, or the earnings, business, management or operations of the Company or IndiaWorld, (ii) there shall not have been any change or any development involving a prospective change in the capital stock or in the long-term debt of the Company or IndiaWorld and (iii) neither the Company nor IndiaWorld shall have incurred any liability or obligation, direct or contingent, the effect of which, in any such case described in clause 8(d)(i), 8(d)(ii) or 8(d)(iii), in your judgment, is material and adverse to the Company and, in your reasonable judgement, makes it impracticable to market the U.S. Securities on the terms and in the manner contemplated in the U.S. Prospectus.
(e) You shall have received on the Closing Date opinions (satisfactory to you and United States counsel for the U.S. Underwriters), dated the Closing Date Date, of M.G. Ramachandran, Indian counsel for the Company, and addressed Bhaishanker Kanga and Girdharlal, Indian counsel to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Registration Statement Each of the Company and all post-effective amendments, if any, have become effective IndiaWorld has been duly incorporated and is validly existing and in good standing as a company under the Act laws of India and has all corporate power and authority necessary to conduct its businesses and to own, lease and operate its properties as described or contemplated in the U.S. Prospectus. The Company has no subsidiaries other than IndiaWorld.
(ii) The Company has an equity and issued capitalization as set forth in the U.S. Prospectus and such capitalization complies with Indian law. The summary of the charter documents and Indian law set forth in the U.S. Prospectus is accurate and complete in all material respects. The authorized share capital of the Company (including the Equity Shares, U.S. Securities and the ADRs) conforms to the description thereof under the headings "Description of Equity Shares" and "Description of American Depositary Shares" in the U.S. Prospectus.
(iii) The shares of capital stock of the Company outstanding prior to the issuance of the Equity Shares represented by the U.S. Securities have been duly and validly authorized, are validly issued and outstanding, are fully paid and nonassessable, conform to the description thereof contained in the U.S. Prospectus and, to the knowledge best of such counsel's knowledge after due inquiry, no stop order suspending the effectiveness of the Registration Statement has have been issued in compliance with the registration and no proceedings for that purpose are pending before or contemplated qualification requirements of Indian securities laws. The Equity Shares represented by the Commission; U.S. Securities and any required filing of the Prospectuses deposited pursuant to Rule 424(b) has been made the Deposit Agreement in accordance with Rule 424(b);
the U.S. Underwriting Agreement (iithe "Deposited Shares") Neither have been duly and validly authorized by the issuanceCompany, sale or delivery of and when such Equity Shares are issued and delivered upon payment in accordance with the Underwritten Shares, nor the execution, delivery or performance terms of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by such Equity Shares will be duly and validly issued and outstanding, fully paid, and nonassessable, rank pari passu with the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, orEquity Shares outstanding, except as disclosed specifically indicated to the contrary in the Registration StatementU.S. Prospectus, and will result in the creation or imposition of not be subject to any lien, charge encumbrance, preemptive right, equity, call right or encumbrance upon any property other claim, and there are no restrictions on the voting or assets transfer of the Company Deposited Shares, the U.S. Securities or any Subsidiary under any such agreementthe ADRs, indentureexcept as described in the U.S. Prospectus. The Deposited Shares, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable when deposited pursuant to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by Deposit Agreement in accordance with the U.S. Underwriting Agreement;, will continue to be validly issued and outstanding and fully paid and nonassessable and will entitle the holders thereof to the rights specified in the U.S. Securities, the ADRs and the Deposit Agreement. The form of certificate for the Equity Shares conforms to the requirements of Indian law and the charter documents of the Company, and the U.S. Securities and the ADRs conform to the requirements of the Deposit Agreement.
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements All of the Act;
(v) To the knowledge outstanding shares of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to capital stock of IndiaWorld have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed authorized and delivered by validly issued and are fully paid, non-assessable and not subject to any preemptive or on behalf of each similar rights. As of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery date of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation Company owns 24.5% of the transactions contemplated thereby will not conflict withoutstanding shares of capital stock of IndiaWorld and has the right to acquire the remaining 75.5% by June 30, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and 2000. Upon payment of the purchase price therefor as herein contemplated, each for the remaining 75.5% of the U.S. Underwriters outstanding shares of capital stock of IndiaWorld, the Company will receive good and marketable title to its ratable share own 100% of the Additional Shares purchased by it from such TG Selling Shareholder, outstanding shares of capital stock of IndiaWorld free and clear of any security interest, mortage, pledge, lien, security interest, encumbrance, claim or equity, assuming .
(v) There are neither any preemptive nor other similar rights to subscribe for or to purchase any of the Deposited Shares or the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice AuthorizationSecurities, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") or except for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries rights that have been duly and validly issued and are in full force and effectwaived, and no proceedings to revoke nor any restrictions on the voting or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation transfer of any of the terms and conditions of any of its FCC Telecommunications LicensesEquity Shares, is not in violation of the Communications Act of 1934either case, as amended, and is not in violation of any FCC rules and regulations, except pursuant to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, charter documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary agreement known to us to which the Company is required in connection with a party, and the issuance deposit of such Equity Shares pursuant to the Deposit Agreement will not give rise to any such preemptive or sale of the Common Stock;other similar rights or restrictions.
(xvivi) Neither the issuance The Company has full power and sale of the Common Stock nor the performance by the Company of authority to enter into and perform its obligations under the U.S. Underwriting Agreement or and the International Underwriting Deposit Agreement will result in a violation of (together, the Communications Act"Principal Agreements") and to file the Registration Statement, or any applicable rules or ADS Registration Statement and the regulations promulgated under Rule 462(b) Registration Statement with the Communications ActCommission. The Principal Agreements have been duly authorized, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on executed and delivered by the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization assuming they are valid and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with binding agreements under the laws of the countries in State of New York by which they operate. Although we do not provide legal services are expressed to be governed, and under the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japanfederal securities laws, the Netherlands, Sweden, Switzerland, Principal Agreements constitute valid and the United Kingdom specifically regarding the provision binding agreements of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any enforceable in accordance with their terms subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of any such jurisdictionsgeneral applicability relating to or affecting creditors' rights and to general equity principles, save that the said Principal Agreements will only be admissible in evidence in India for the purposes of enforcement if they are duly stamped in accordance with the Indian Stamp Act, 1899 and the Tamil Nadu Stamp Act, 1957 within three months from the date of their first receipt in India with the proper stamp duty chargeable thereon. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility forThe Deposit Agreement, the accuracy, completeness or fairness of U.S. Securities and the statements ADRs conform to the description thereof in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted U.S.
Appears in 1 contract
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase hereunder and under the Firm Shares hereunder applicable U.S. Terms Agreement are subject to the accuracy, as of the date hereof and at Closing Time, of the representations and warranties of the Company and the Operating Partnership herein contained, to the performance by the Company and the Operating Partnership of their respective obligations hereunder, and to the following further conditions:
(a) If, at At the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; applicable Closing Time (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to under the knowledge of the Company 1933 Act or any U.S. Underwriter, proceedings therefor initiated or threatened by the Commission, (ii) the rating assigned by any nationally recognized statistical rating organization to any Preferred Shares of the Company and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations indebtedness of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, Operating Partnership as Representatives of the several date of the applicable U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) Terms Agreement shall not have been lowered since such date nor shall any event or development relating to or involving such rating organization have publicly announced that it has placed any Preferred Shares of the Company or and any officer or director indebtedness of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or whichOperating Partnership on what is commonly termed a "watch list" for possible downgrading, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will there shall not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the your attention of such counsel any facts that would lead them cause you to believe that the Registration Statement U.S. Prospectus, together with the applicable Prospectus Supplement, at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as it was required to be delivered to purchasers of the Closing Date or the Option Closing DateU.S. Underwritten Securities, as the case may be, contained included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading.
(b) At Closing Time, you shall have received:
(A) The Company has been duly formed as a real estate investment trust under the laws of the State of Texas. The Company has power and authority to own, lease and operate its properties, to conduct the business in which it is engaged or proposes to engage as described in the U.S. Prospectus, and to enter into and perform its obligations under this Agreement, the Partnership Agreement, the applicable U.S. Terms Agreement and the Warrant Agreement, if any (collectively, the "LISTED AGREEMENTS"). According to the County Clerk of Tarrant County, Texas, the Restated Declaration of Trust of the Company is recorded in Volume 12645, beginning at Page 1811, in the records of the County Clerk. The Restated Declaration of Trust is in effect, and no dissolution, revocation or forfeiture proceedings regarding the Company have been commenced. The Company is duly qualified as a foreign organization to transact business and is in good standing in New York and 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 to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company, the Operating Partnership, the Subsidiaries and the Residential Development Corporations considered as one enterprise.
(B) The Operating Partnership has been duly formed and is validly existing as a limited partnership in good standing under the Delaware Act. The Operating Partnership has full partnership power and authority to own, lease and operate its properties, to conduct the business in which it is engaged or proposes to engage as described in the U.S. Prospectus and to enter into and perform its obligations under this Agreement and the Listed Agreements to which it is a party. The Operating Partnership is duly qualified or registered as a foreign partnership and is in good standing in Texas, Colorado, Arizona, New Mexico, Louisiana, Nebraska and each other jurisdiction in which such qualification or registration is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify or register would not have a material adverse effect on the condition, financial or otherwise, or the earnings,
(C) Each of Crescent Real Estate Funding I, L.P., Crescent Real Estate Funding II, L.P., Crescent Real Estate Funding III, L.P., Crescent Real Estate Funding IV, L.P., Crescent Real Estate Funding V, L.P., Crescent Real Estate Funding VI, L.P. and any other Subsidiary that would be considered a "Significant Subsidiary" as defined in Article 1, Rule 1--02 of Regulation S-X promulgated pursuant to the 1933 Act (collectively, the "Significant Subsidiaries") has been organized and is validly existing as a corporation, limited partnership or limited liability company, as the case may be, in good standing under the laws of its respective state of organization, with full corporate, partnership or limited liability company (as the case may be) power and authority to own, lease and operate its properties, to conduct the business in which it is engaged or proposes to engage as described in the U.S. Prospectus, and to enter into and perform its obligations under any Listed Agreements to which it is a party. Each of the Significant Subsidiaries and the Residential Development Corporations is duly qualified as a foreign corporation, limited partnership or limited liability company, 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 to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, assets, business affairs or business prospects of the Company, the Operating Partnership, the Significant Subsidiaries and the Residential Development Corporations considered as one enterprise. All of the issued and outstanding shares of capital stock of each of the corporate Significant Subsidiaries have been duly authorized and validly issued and are fully paid and non-assessable. The ownership by the Company, the Operating Partnership and the Significant Subsidiaries of the shares of capital stock or limited partnership or equity interests, as the case may be, of each of the Significant Subsidiaries is as described in the U.S. Prospectus and such ownership is free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(D) The authorized, issued and outstanding shares of beneficial interest of the Company are as set forth in the U.S.
Appears in 1 contract
Sources: u.s. Purchase Agreement (Crescent Real Estate Equities Inc)
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(ai) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(bii) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting material adverse effect on the condition (condition, financial or otherwise), earnings, business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries and its subsidiaries taken as a whole, not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, opinion would materially, materially adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(ciii) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇ (, counsel for the "TG Selling Shareholders")Company and LaSalle Re, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, you to the effect that:
(i1) The Registration Statement This Agreement is a valid and binding agreement of the Company.
(2) On the Closing Date, all post-effective amendments, if any, have become effective under of the Act and, outstanding shares of capital stock of the Company and LaSalle Re (including the Shares) conformed in all material respects to the description thereof contained in the Prospectuses; to the knowledge of such counsel, the Shares are not subject to any contractual pre-emptive or other similar rights; the form of certificates for the Shares conforms to the requirements of the Nasdaq National Market; and the Shares have been approved for quotation on the Nasdaq National Market.
(3) To the knowledge of such counsel there is no legal or governmental action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, contemplated or threatened against the Company or any of its subsidiaries or any injunction, restraining order or order of any nature by a court of competent jurisdiction, arising out of or in connection with the consummation of the transactions contemplated by this Agreement.
(4) The Registration Statement and each post-effective amendment, if any, is effective under the Act and the Rules and Regulations and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof or preventing or suspending the use of any Prepricing Prospectus has been issued under the Act or the Rules and no Regulations or proceedings for that purpose therefor initiated or threatened or are pending before or contemplated by the Commission; , and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);such rule.
(ii5) Neither Statements set forth in the issuanceProspectuses under the headings "Risk Factors", sale or delivery "Management's Discussion and Analysis of Financial Condition and Results of Operations", "Business", "Management", "Certain Transactions", "Description of Capital Stock" and in the Underwritten Shares, nor the execution, delivery or performance Registration Statement under Items 14 and 15 of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions Part II of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim insofar as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they statements constitute a summary of the legal matters, documents or proceedings or refer to statements of regulation, law or legal conclusions referred to therein, therein fairly present the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions information called for with respect to such legal matters, documents or proceedings and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerlandstatements, and the United Kingdom specifically regarding the provision of international call-back service are accurate in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overviewall material respects." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Lasalle Re Holdings LTD)
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Securities Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise)Effect, business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act Securities Act, the Canadian Securities Laws or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & BerlinDuMoulin, Chartered, Canadian counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company has been duly incorporated and validly exists as a corporation under the Company Act of British Columbia and is in good standing with respect to the filing of its annual returns with the office of the Registrar of Companies for the Province of British Columbia, with all corporate power and authority to own its properties and conduct its business as described in the Registration Statement and the Prospectuses;
(ii) With such exceptions as are not material, the Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each jurisdiction in Canada in which it owns or leases properties, or conducts any business, so as to require such qualification and in which the failure to so qualify would have a Material Adverse Effect (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of other counsel and upon certificates of public official or officers of the Company, provided that such counsel shall state that they believe that both you and they are justified in so relying upon such opinions and certificates);
(iii) The Company has an authorized capitalization as set forth in the Prospectuses, and all postof the issued share capital of the Company has been duly and validly authorized and issued and is fully paid and non-effective amendmentsassessable and conforms to the descriptions thereof contained in the Prospectuses;
(iv) The Shares to be issued and sold to the U.S. Underwriters and Canadian Underwriters by the Company under this Agreement and the Canadian Underwriting Agreement have been duly authorized and when issued and delivered to the U.S. Underwriters and Canadian Underwriters against payment therefor in accordance with the terms of this Agreement and the Canadian Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any (A) preemptive rights or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights that entitle or will entitle any person to acquire any Common Shares upon the issuance thereof by the Company;
(v) The Company has the corporate power and authority to enter into this Agreement and the Canadian Underwriting Agreement and to issue, sell and deliver the Shares to be sold by it to the U.S. Underwriters and Canadian Underwriters as provided herein and therein, and each of this Agreement and the Canadian Underwriting Agreement have been duly authorized, executed and delivered by the Company (to the extent, in the case of this Agreement, execution and delivery is governed by the laws of British Columbia) and, in the case of the Canadian Underwriting Agreement, is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to the qualifications that its enforceability is subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the enforcement of creditors' rights generally and that specific performance and injunctive relief may not be available and except to the extent that the rights to indemnity and contribution provided for therein may be limited by applicable law or the public policy underlying such law;
(vi) To the best of such counsel's knowledge and other than as set forth in the Prospectuses, there are no legal or governmental proceedings pending to which the Company is a party or of which any property of the Company is the subject which, if any, determined adversely to the Company would individually or in the aggregate have become effective under the Act a Material Adverse Effect; and, to the knowledge best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement such proceedings are threatened by governmental authorities or threatened by others; and such counsel has been issued and no proceedings for not received notice that purpose any such proceeding or investigations are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b)governmental authorities or threatened by others;
(iivii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting this Agreement or the International Canadian Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Canadian Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Canadian Underwriting Agreement conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any Subsidiary is a party or by which they it is bound or to which any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will result in the creation or imposition of any lien, charge or encumbrance upon any its property or assets of the Company or any Subsidiary under any such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effectis subject, nor will any such action result in any violation of the provisions of the organizational documents of the Company or any existing lawstatute or any order, regulation, ruling (assuming compliance with all rule or regulation of any court or governmental agency or body of the Province of British Columbia or Canada applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to therein having jurisdiction over the Company, any Subsidiary Company or any of their its properties, which violation would have a Material Adverse Effect;
(iiiviii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part A final expedited review receipt has been obtained in respect of the Company Canadian Final PREP Prospectus (except as defined in the Canadian Underwriting Agreement) from the British Columbia Securities Commission pursuant to the Expedited Review System (as defined in the Canadian Underwriting Agreement) and all necessary documents have been filed, all necessary proceedings have been taken and all necessary authorizations, approvals, permits, consents and orders have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of Canadian Securities Laws to permit the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statementsbe issued, schedulesoffered, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed sold and delivered by or on behalf of in each of the TG Selling Shareholders and are valid and binding agreements provinces of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited Canada by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying through persons registered under such laws;
(vii) Each TG Selling Shareholder has full legal right; and no other consent, power and authorityapproval, and authorization, order, registration or qualification of or with any approval court or governmental agency or body of Canada or any province thereof is required by law, to sell, assign, transfer and deliver good and marketable title to for the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of this Agreement or the U.S. Canadian Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and Company or the consummation by the Company of the transactions contemplated thereby will by this Agreement or the Canadian Underwriting Agreement (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of other counsel, provided that such counsel shall state that they believe that both you and they are justified in so relying upon such opinions);
(ix) The Company is not conflict within violation of its organizational documents or, constitute a breach ofto the best of such counsel's knowledge, in default in the performance or a default under observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument known to such counsel to which any TG Selling Shareholder it is a party or by which it or its properties may be bound that is material to the Company and its subsidiaries, taken as a whole;
(x) No stamp duty, registration or documentary taxes, duties or similar charges are payable under the laws of the Province of British Columbia or the laws of Canada applicable therein in connection with the authorization, execution and delivery of this Agreement and the Canadian Underwriting Agreement;
(xi) Under the laws of the Province of British Columbia and the laws of Canada applicable therein and under the practice of the courts of the Province of British Columbia, all as at the date hereof, such courts would give effect to the choice by the Company of New York law as the law governing this Agreement, subject to proof of such laws as a question of fact, provided that a court of British Columbia will not recognize or apply any law of the State of New York to the extent, if any, that such law is found by the court:
(A) to be procedural in nature; (B) to be of a revenue, expropriatory or penal nature; or (C) to be inconsistent with public policy in British Columbia;
(xii) The U.S. Underwriters are each entitled to ▇▇▇ as plaintiff in the courts of the Province of British Columbia for the enforcement of their rights against the Company in respect of this Agreement, PROVIDED that, in the case of any U.S. Underwriter which is a corporation that carries on business in British Columbia, such corporation is duly registered to carry on such business under the Company Act (British Columbia). Subject to the foregoing, access to the courts of the Province of British Columbia will not be subject to any conditions which are not applicable to nationals or residents of Canada or domestic corporations, except that the furnishing of security for costs in such proceedings may be required;
(xiii) A court of competent jurisdiction in British Columbia will entertain suit upon a final and conclusive judgment in personam on the merits respecting the enforcement of this Agreement, against the Company for a sum certain in money by any federal or state court located in the City of New York that is not impeachable as void or voidable under the internal laws of the State of New York and will enforce such judgment in such suit without reconsideration of the merits, PROVIDED that:
(A) service of process is made in compliance with the provisions of this Agreement;
(B) such judgment is not obtained by fraud or in violation of the rules of natural justice and that the enforcement thereof would not be inconsistent with public policy, as such term is understood under the laws of British Columbia;
(C) the enforcement of such judgment does not constitute, directly or indirectly, the enforcement of foreign revenue, expropriatory or penal laws;
(D) no new admissible evidence relevant to the action is discovered prior to the rendering of judgment by such court in British Columbia;
(E) an action to enforce the judgment is commenced within six years of the date of the judgment;
(F) such judgment, if a default judgment, does not contain any manifest error on the face of such judgment; and
(G) enforcement would not be contrary to any order made by the Attorney-General of Canada under the FOREIGN EXTRATERRITORIAL MEASURES ACT (CANADA) or any order made by the Competition Tribunal under the COMPETITION ACT (CANADA) in respect of certain judgments (as therein defined). At the date thereof, no such orders are outstanding which would affect the enforcement of any such judgment; and
(H) under the Currency Act (Canada), a British Columbia court may only give judgment in Canadian dollars;
(xiv) The statements set forth in the U.S. Prospectus under the caption "Certain Canadian Federal Tax Consequences" are hereby confirmed, the statements set forth in the Basic Prospectus and in the Canadian Prospectus under the captions "Description of Share Capital", insofar as they constitute matters of law or legal conclusions, are accurate and correct and the attributes of the Common Shares conform in all material respects to the descriptions thereof set forth in the Prospectuses; and
(xv) The statements set forth in the Canadian Prospectus under the caption "Eligibility for Investment" are hereby confirmed (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of other counsel, provided that such counsel shall state that they believe that both you and they are justified in so relying upon such opinions). In rendering their opinion as aforesaid, counsel may, as to factual matters, rely upon written certificates or statements of officers of the Company and, as to matters of law, may rely upon an opinion or opinions (including the opinion delivered pursuant to paragraph (d)), each dated the Closing Date, of other counsel retained by them or the Company as to laws of any jurisdiction other than the Province of British Columbia, provided that (1) each such other counsel is reasonably acceptable to the Representatives, (2) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representatives and is, in form and substance reasonably satisfactory to them and their assets counsel, and (3) counsel shall state in their opinion that they believe that they and the U.S. Underwriters are justified in relying thereon..
(d) You shall have received on the Closing Date an opinion of Thelen, Marrin, ▇▇▇▇▇▇▇ & Bridges LLP, U.S. counsel for the Company, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation; and all of the issued shares of capital stock of each Significant Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable, and (except for directors' qualifying shares and except as otherwise set forth in the Prospectuses) are owned directly or property is boundindirectly by the Company, free and clear of all liens, encumbrances, equities or violate any statute, law, regulation, court order or decree known to claims (such counsel being entitled to be applicable to any TG Selling Shareholder or to any rely in respect of the property opinions in this clause upon opinions of other counsel and in respect to matters of fact upon certificates of officers of the Company or assets its subsidiaries, provided that such counsel shall state that they believe that both you and they are justified in relying upon such opinions and certificates);
(ii) Each Significant Subsidiary is duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any TG Selling Shareholder, except for any business so as to require such conflicts, breaches, defaults or violations that qualification and in which the failure to so qualify would not have a Material Adverse Effect on the ability of (such TG Selling Shareholder counsel being entitled to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery rely in respect of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence opinion in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the clause upon opinions of local other counsel and in respect of Australiamatters of fact upon certificates of officers of Significant Subsidiaries and state officials, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates provided that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated they believe that both you and they are justified in their opinion, to determine independently, relying upon such opinions and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the officers' certificates);
(iii) The Registration Statement and the Prospectusesall post-effective amendments, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company)if any, and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted become effective
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several respective obligations of the several U.S. Underwriters to purchase the Firm Shares hereunder are subject to the accuracy, when made and as of each Closing Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to each of the following additional terms and conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the The Registration Statement or a and any post-effective amendment thereto has become effective under the Act; if the Registration Statement has not become effective prior to be declared effective before the offering of Execution Time, unless the Shares may commenceU.S. Underwriters agree in writing to a later time, the Registration Statement or such post-effective amendment shall have will become effective not later than 5:30 (i) 6:00 P.M. New York City time, time on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filingsof determination of the public offering price, if anysuch determination occurred at or prior to 3:00 P.M. New York City time on such date or (ii) 2:00 P.M. on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 P.M. New York City time on such date; if required by Rules 424 and 430A under Rule 424(b), the Act Prospectuses shall have been timely madefiled with the Commission in accordance with Section 5(a) hereof, 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 430(A)(a)(3); no stop order suspending the effectiveness of the Registration Statement Stop Order shall have been issued and prior to that time no proceeding for that purpose shall have been instituted or, to the knowledge of the Company initiated or any U.S. Underwriter, threatened by the Commission, and ; any request of the Commission for inclusion of additional information (to be included in the Registration Statement or the Prospectuses or otherwise) otherwise shall have been complied with to your reasonable satisfaction.
(b) Subsequent to with; and the effective date of this Agreement, there Company shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects filed with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal Commission any amendment or governmental proceedings pending or threatened against the Company or any Subsidiary or supplement to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or without the consent of the Underwriters. If the Company has elected to be filed as an exhibit rely upon Rule 430A of the Act, the price of the Shares and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Registration Statement that are not described or filed as required, as the case may be;
(viCommission for filing pursuant to Rule 424(b) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders Act within the prescribed time period, and are valid prior to the applicable Closing Date the Company shall have provided evidence satisfactory to the U.S. Underwriters of such timely filing, or a post-effective amendment providing such information shall have been prepared, filed and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder declared effective in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights the requirements of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion Rule 430A of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the ProspectusAct. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted 16
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several obligations of the several U.S. Underwriters to purchase and pay for the Firm Company Shares hereunder are and the Selling Stockholder Shares as provided herein, shall be subject to the accuracy, as of the date hereof and the Closing Date and any later date on which Option Shares are to be purchased, as the case may be, of the representations and warranties of the Company and the Selling Stockholders herein, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to the following additional conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the The Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time2:00 P.M., San Francisco Time, on the date hereoffollowing the date of this Agreement, or at such later date and time as shall be consented to in writing by you, ; and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement thereof shall have been issued and no proceeding for that purpose shall have been instituted initiated or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses Prospectus or otherwise) shall have been complied with to your reasonable satisfactionthe satisfaction of U.S. Underwriters' Counsel.
(b) Subsequent to the effective date of All corporate proceedings and other legal matters in connection with this Agreement, there shall not have occurred (i) any changethe form of Registration Statement and the Prospectus, or any development involving a prospective changeand the registration, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise)authorization, businessissue, prospects, properties, net worth or results sale and delivery of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating shall have been satisfactory to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters' Counsel, materially adversely affect and such counsel shall have been furnished with such papers and information as they may reasonably have requested to enable them to pass upon the market for the Sharesmatters referred to in this subsection.
(c) You shall have received on the Closing Date and on any later date on which Option Shares are purchased, as the case may be, the following opinion of Pillsbury Madison & Sutro LLP, counsel for the Company, and with respect to subparagraph (v) below, an opinion of from Aoki, ▇▇▇▇▇▇▇▇▇▇▇ & BerlinNomoto, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), each dated the Closing Date and or such later date addressed to you, as Representatives the U.S. Underwriters and with reproduced copies or signed counterparts thereof for each of the several U.S. Underwriters, to the effect that:
(i) The Registration Statement Company has been duly incorporated and all post-effective amendments, if any, have become effective is validly existing as a corporation in good standing under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness laws of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing State of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b)Nevada;
(ii) Neither The Company has the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenturecorporate power to own, lease or other instrument and operate its property and to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except conduct its business as disclosed described in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse EffectProspectus;
(iii) No consentThe Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, approvalif any, authorization in which the ownership or other orderleasing of its property or the conduct of its business requires such qualification, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required except where the failure so to qualify would not have a material adverse effect on the part condition (financial or otherwise), earnings, operations, business or business prospects of the Company (except and its subsidiaries considered as have been obtained under one enterprise. To such counsel's knowledge, the Act Company does not own or such as may be required under state securities control, directly or Blue Sky laws governing the purchase indirectly, any corporation, association or other entity other than Etec Systems Japan, Ltd., Etec France, Etec GmbH and distribution of the Shares) for the valid issuance Etec Korea, Etec Systems Limited, Etec Polyscan, Inc., a Nevada corporation, and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;Etec Systems International, a Nevada corporation.
(iv) The Registration Statement and Company owns all of the Prospectuses and any supplements or amendments thereto shares of capital stock of its subsidiaries (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinionqualifying shares required under local law) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equityequitable interest;
(v) Etec Systems Japan, assuming Ltd., a subsidiary of the Company, has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires, to the best knowledge of such counsel, such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries considered as one enterprise;
(vi) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein; the issued and outstanding shares of capital stock of the Company have been duly and validly authorized and issued, are fully paid and nonassessable, and have not been issued in violation of any preemptive right, co-sale right, registration right, right of first refusal or other similar right;
(vii) The Firm Shares or the Option Shares, as the case may be, to be issued by the Company pursuant to the terms of this Agreement will be, upon issuance and delivery against payment therefor in accordance with the terms hereof, and the shares to be sold by the Selling Stockholders are, duly authorized and validly issued and fully paid and nonassessable, and have not been issued in violation of any preemptive right, registration right, co-sale right, right of first refusal or other similar right and the shareholders of the Company have no preemptive or, to such counsel's knowledge, other rights to purchase any of these Shares.
(viii) The Company has the corporate power and authority to enter into this Agreement and to issue, sell and deliver to the U.S. Underwriters acquire the Additional Firm Shares without notice of any adverse claim or the Option Shares, as such term is used in Section 8-302 the case may be, to be issued and sold by it hereunder;
(ix) This Agreement has been duly authorized by all necessary corporate action on the part of the Uniform Commercial Code in effect in Company and has been duly executed and delivered by the State Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of New Yorkthe Company, except insofar as indemnification and contribution provisions may be limited by applicable law or equitable principles, and except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally or by general equitable principles;
(x) The Section 214 Switched Voice AuthorizationRegistration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement have been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Act;
(xi) The Registration Statement, the Section 214 Private Line AuthorizationProspectus, and the Section 214 Facilities Authorization (as such terms are defined documents incorporated by reference in the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) are and financial data derived therefrom as to which such counsel need express no opinion) as of the only telecommunications regulatory licenseseffective date of the Registration Statement, permitscomplied as to form in all material respects with requirements of the Act and the applicable Rules and Regulations, authorizationsand any further amendment or supplement to any such incorporated document made by the Company prior to such effective date (other than the financial statements and related schedules therein, consents as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Exchange Act, and approvals the rules and regulations of the Commission thereunder;
("Telecommunications Licenses"xii) required from The terms and provisions of the Federal Communications Commission (the "FCC") for each capital stock of the Company and the Subsidiaries to conduct its business conform in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except all material respects to the extent that such violation is disclosed description thereof contained in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xixiii) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements The information in the Prospectus under the captions caption "Risk Factors - Substantial Government Regulation-United StatesShares Eligible for Future Sale" to the extent that it constitutes matters of law or legal conclusions, has been reviewed by such counsel and "Business-Government Regulation" is correct in all material respects, and the forms of certificates evidencing the Common Stock comply with Nevada law;
(xiv) The description in the Registration Statement and the Prospectus of the charter and bylaws of the Company and of statutes and contracts are accurate in all material respects and fairly summarize in all material respects all matters referred present the information required to thereinbe presented by the Act or the Rules and Regulations;
(xv) To such counsel's knowledge, and there are no material omissions under such captions with respect agreements, contracts, leases or documents of a character required to such legal matters, documents be described or referred to in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which are not described or referred to therein and proceedingsfiled as required;
(xiixvi) Each The performance of this Agreement and the consummation of the Company transactions herein contemplated (other than performance of the Company's indemnification and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services contribution obligations hereunder, concerning which no opinion need be expressed) will not, (a) result in any state to conduct its business violation of the Company's charter or bylaws, or (b) result in the manner described in material breach or contemplated by violation of any of the Prospectus except where terms and provisions, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument filed as an exhibit to the failure Registration Statement, or any applicable statute, rule or regulation known to obtain such licenses and/or file counsel or any order, writ or decree known to such tariffs would not have, individually counsel of any court or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree governmental agency or order that has been issued by the FCC against body having jurisdiction over the Company or any Subsidiary of its subsidiaries, or over any actionof their properties or operations; provided however, proceeding that no opinion need be rendered concerning state securities or investigation Blue Sky laws;
(xvii) No authorization, approval or consent of any governmental authority or agency is necessary in connection with the consummation of the transactions herein contemplated except such as have been obtained under the Act or such as may be required under state, foreign, or other securities or Blue Sky laws or by the National Association of Securities Dealers, Inc. in connection with the purchase and the distribution of the Shares by the U.S. Underwriters;
(xviii) There are no legal or governmental proceedings pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary of its subsidiaries of a character which are required to be disclosed in the Registration Statement or otherwise whichthe Prospectus, if by the subject of an unfavorable decisionAct or the applicable Rules and Regulations, ruling or finding, would have a Material Adverse Effectother than those described therein;
(xivxix) There To such counsel's knowledge, except as set forth in the Prospectus, neither the Company nor any of its subsidiaries is no outstanding adverse judgmentpresently in material breach of, injunctionor in default under, decree any bond, debenture, note or order that has been issued by other evidence of indebtedness or any state public utility commission ("PUC") against contract, indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any Subsidiary of its subsidiaries is a party or by which any actionof its property is bound that is material to the financial condition, proceeding earnings, operations, business or investigation pending before or, to counsel's knowledge, threatened by any state PUC against business prospects of the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effectand its subsidiaries considered as one enterprise;
(xvxx) No licenseExcept as set forth in the Registration Statement and Prospectus, permitno holders of Common Stock or other securities of the Company have registration rights with respect to securities of the Company and, consentexcept as set forth in the Registration Statement and Prospectus, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part all holders of securities of the Company or any Subsidiary is required in connection with the issuance of its subsidiaries having rights to registration of such shares of Common Stock, or sale other securities, because of the Common Stock;
(xvi) Neither the issuance and sale filing of the Common Stock nor the performance Registration Statement by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Acthave, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services respect to the Company offering contemplated thereby, waived such rights or its Subsidiaries regarding the application or interpretation such rights have expired by reason of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management lapse of the Company time following notification of the Company's operations and compliance with applicable FCC requirements and reviewing any portions of intent to file the opinions of local counsel of AustraliaRegistration Statement, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance or have included securities in the provision Registration Statement pursuant to the exercise of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. rights; In addition, such counsel shall state that although counsel has they have not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, verified the accuracy, accuracy or completeness or fairness of the statements contained in the Registration StatementStatement or the Prospectus, such counsel nothing has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead which (i) caused them to believe that the Registration Statement that, at the time the Registration Statement became effective, or the ProspectusesRegistration Statement (other than the financial statements including supporting schedules and financial data derived therefrom, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, to which such counsel need express no comment) contained an any 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, or that at the Closing Date or any later date on which the Option Shares are to be purchased, as the case may be, the Registration Statement, the Prospectus, or any document incorporated by reference in the Prospectus (except as aforesaid) contained any 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, in light of the circumstances under which they were made, not misleading or (ii) caused them to believe that the Registration Statement and the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom as to which such counsel need express no opinion) as of the effective date of the Registration Statement, failed to comply as to form in all material respects with the requirements of the Act and the applicable Rules and Regulations. Counsel rendering the foregoing opinions may rely as to questions of law not involving the laws of the United States or the States of California and Nevada upon opinions of local counsel satisfactory to U.S. Underwriters' Counsel (or such local counsel may deliver separate opinions directly to the U.S. Underwriters in lieu of inclusion of such matters in the foregoing opinion), and as to questions of fact upon representations or certificates of officers of the Company, the Selling Stockholders or officers of the Selling Stockholders (when the Selling Stockholder is not a natural person), and of government officials, in which case their opinion is to state that they are so relying and that they have no knowledge of any material misstatement or inaccuracy in such opinions, representations or certificate. Copies of any opinion, representation or certificate so relied upon shall be delivered to you, as Representatives of the U.S. Underwriters, and to U.S. Underwriters' Counsel.
(d) You shall have received on the Closing Date and on any later date on which Option Shares are to be purchased, as the case may be, the following opinion of Skjerven, Morrill, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇, patent counsel to the Company, dated the Closing Date or such later date, to the effect that:
(i) The Company is listed in the records of the United States Patent and Trademark Office ("PTO") as the holder of record of the patent applications listed in Exhibit A to such opinion (the "Patent Applications"), and such counsel shall state that number of such Patent Applications, listed on Exhibit B to such opinion, which have been allowed or indicated as containing allowable subject matters. To the best of such counsel's knowledge, written assignments to the Company of all ownership interests in the Patent Applications have been duly authorized, executed and delivered by all of the inventors in accordance with their terms. To the best of such counsel's knowledge, there is no claim of any party other than the Company to any ownership interest or lien with respect to any of the Patent Applications;
(ii) to such counsel's knowledge, other than in connection with assertions or inquiries made by patent office examiners in the ordinary course of the prosecution of the Company's Patent Applications and except as set forth on Exhibit C to such opinion, there is no pending or threatened in writing any action, suit, proceeding or claim by others (A) challenging the validity or scope of the Patent Applications held by or licensed to the Company, or (B) asserting that any third party patent is infringed by the activities of the Company described in the Prospectus or by the manufacture, use or sale of any of the Company's products or other items made and used according to the Patent Applications held by or licensed to the Company;
(iii) to such counsel's knowledge and except as set forth on Exhibit D to such opinion, there is not pending or threatened in writing any action, suit, proceeding or cl
Appears in 1 contract
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement registration statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement registration statement or such post-effective amendment shall have become effective not later than 5:30 P.M. P.M., New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement registration statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement registration statement or the Prospectuses prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwiseother), business, prospects, properties, net worth worth, or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, materially adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date Date, an opinion of ▇▇▇▇▇▇▇ Sidley & Berlin, CharteredAustin, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses (and any amendment or supplement thereto), and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature of its properties or the conduct of its business requires such registration or qualification, except where the failure so to register or qualify could not be reasonably expected to have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole;
(ii) Each of United States Cellular Corporation, United States Cellular Operating Company, United States Cellular Investment Company, TDS Telecommunications Corporation and Aerial Communications, Inc. (the "Significant Subsidiaries") is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its organization, with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses (and any amendment or supplement thereto); and all the outstanding shares of capital stock of each of the Significant Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and are owned by the Company directly, or indirectly through one of the other Subsidiaries, free and clear of any perfected security interest, or, to the knowledge of such counsel, any other security interest, lien, adverse claim, equity or other encumbrance;
(iii) The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectuses; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectuses under the caption "Description of Capital Stock";
(iv) All the shares of capital stock of the Company outstanding prior to the issuance of the Shares to be issued and sold by the Company hereunder, have been duly authorized and validly issued, and are fully paid and nonassessable;
(v) The Underwritten Shares to be issued and sold to the U.S. Underwriters and the Managers by the Company hereunder and under the International Underwriting Agreement have been duly authorized and, when issued and delivered to the U.S. Underwriters and the Managers against payment therefor in accordance with the terms hereof and the terms of the International Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive, or to the knowledge of such counsel, similar rights that entitle or will entitle any person to acquire any Shares upon the issuance thereof by the Company;
(vi) The form of certificates for the Shares conforms to the requirements of the Delaware General Corporation Law;
(vii) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the best knowledge of such counselcounsel after reasonable inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(iiviii) The Company has corporate power and authority to enter into this Agreement and the International Underwriting Agreement and to issue, sell and deliver the Underwritten Shares to be sold by it to the U.S. Underwriters and the Managers as provided herein and therein, and each of this Agreement and the International Underwriting Agreement has been duly authorized, executed and delivered by the Company;
(ix) To the knowledge of such counsel, neither the Company nor any of the Significant Subsidiaries is in violation of its respective certificate or articles of incorporation or bylaws, or other organizational documents, or is in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness, except as may be disclosed in the Prospectuses;
(x) Neither the issuanceoffer, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting this Agreement or the International Underwriting Agreement, or compliance by the Company with all the provisions of this Agreement and the International Underwriting Agreement, hereof or thereof nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement thereby conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws bylaws, or other organizational documents, of the Company or its any of the Significant Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary of the Significant Subsidiaries is a party or by which they any of them or any of their respective properties is bound and that is made an exhibit to the Registration StatementStatement or to any Incorporated Document, oror is known to such counsel, except as disclosed in the Registration Statement, or will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effectof the Subsidiaries, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquirycounsel, to be applicable to the Company, any Subsidiary the Significant Subsidiaries or any of their respective properties, which violation would have a Material Adverse Effect;
(iiixi) No consent, approval, authorization or other orderorder of, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act and the Exchange Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Underwritten Shares to the U.S. Underwriters and the Managers as contemplated by this Agreement and the U.S. International Underwriting Agreement;
(ivxii) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, statements and the notes thereto and the schedules and other financial and statistical data included therein or omitted therefromtherein, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act; and each of the Incorporated Documents (except for the financial statements and the notes thereto and the schedules and other financial and statistical data included therein, as to which counsel need not express any opinion) complied as to form in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder at the time filed;
(vxiii) To the knowledge of such counsel, (A) other than as described or contemplated in the ProspectusesProspectuses (or any supplement thereto), there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary of the Subsidiaries, or to which the Company's Company or any Subsidiary's properties are of the Subsidiaries, or any of their property, is subject, which, if adversely determined, would reasonably which are required to be expected to have a Material Adverse Effect, described in the Registration Statement or Prospectuses (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiaryinstruments, of a character that are required to be described in the Registration Statement or the Prospectuses (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement or any Incorporated Document that are not described or filed as required, as the case may be;
(vixiv) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed statements in the Registration Statement and would Prospectuses, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, including, but not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to thereinlimited to, the statements in the Prospectus under the captions heading "Risk Factors - Substantial Government Regulation-United States" and Federal Income Tax Consequences"Business-Government Regulation" , are accurate in all material respects and present fairly summarize in all material respects all matters referred the information required to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effectbe shown;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part Upon delivery of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance Underwritten Shares pursuant to this Agreement and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement and payment therefor as contemplated herein the Underwriters and the Managers will result in a violation acquire good and marketable title to the Shares free and clear of the Communications Actany lien, claim, security interest, or any applicable rules other encumbrance, restriction on transfer or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiaryother defect in title; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel Such opinion shall additionally state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers including review and other representatives discussion of the Companycontents of all Incorporated Documents), and no facts have nothing has come to the attention of such counsel that would lead has caused them to believe that the Registration Statement (including the Incorporated Documents) at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates date and as of the Closing Date or the Option Closing Date, as the case may be, 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 or that any amendment or supplement to the Prospectuses, as of its respective date, and as of the Closing Date or the Option Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need express no opinion with respect to the financial statements and the notes thereto and the schedules and other financial data included in the Registration Statement or the Prospectuses or any Incorporated Document). Such opinion shall be limited to the laws of the State of New York, the State of Illinois, the General Corporation Law of the State of Delaware and the federal law of the United States (other than the Communications Act of 1934, as amended (the "Communications Act"), and the rules and regulations thereunder).
(d) You shall have received on the Closing Date, an opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, special counsel for the Company, dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, the Federal Communications Commission (the "FCC"), is necessary or required for the due authorization, execution or delivery by the Company of this Agreement or the International Underwriting Agreement or for the performance by the Company of the transactions contemplated under the Prospectuses, this Agreement, or the International Underwriting Agreement.
(ii) The execution and delivery of this Agreement and the International Underwriting Agreement, the issuance of the Underwritten Shares, the compliance by the Company with all of the provisions of this Agreement and the International Underwriting Agreement, and the consummation of the transactions contemplated herein, therein and in the Registration Statement and the Prospectuses (including the issuance and sale of the Underwritten Shares) do not and will not, to such counsel's knowledge, conflict with or result in any violation of, or the creation of any lien, charge or encumbrance upon, the property or assets of the Company or, to such counsel's knowledge, its Subsidiaries, under the Communications Act or any rule, regulation, judgment, order or administrative or court decree issued, enacted or promulgated thereunder; neither will any such action conflict with or have a material adverse effect on any of the certificates, authorities, licenses or permits, if any, issued or to be issued by the FCC to the Company or, to such counsel's knowledge, any of the Company's Subsidiaries that enable them to carry on the business and operations now operated by them and which are material to the business of the Company and its consolidated subsidiaries considered as one enterprise.
(iii) The information in the Registration Statement or the Prospectuses purporting to describe FCC regulatory matters or the Communications Act, to the extent that it constitutes matters of law, summaries of legal matters or legal conclusions, has been reviewed by such counsel and is correct in all material respects.
(iv) Although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy or completeness of the statements in the Registration Statement, nothing has come to the attention of such counsel that has caused them to believe that the descriptions of FCC regulatory matters and the Communications Act contained in the Registration Statement (including the Incorporated Documents) at the time the Registration Statement became effective, or the Prospectuses, as of their date and as of the Closing Date or the Option Closing Date, as the case may be, 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 there
Appears in 1 contract
Sources: Underwriting Agreement (Telephone & Data Systems Inc)
Conditions of U. S. UnderwritersUNDERWRITERS' ObligationsOBLIGATIONS. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto or an Abbreviated Registration Statement to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-post- effective amendment or Abbreviated Registration Statement shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting material adverse effect on the condition (financial or otherwise), businessearnings, prospects, properties, net worth business or results of operations of the Company or the Subsidiaries and its subsidiaries, considered as one enterprise, not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, Shares or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, CharteredCoie, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation validly existing and in good standing under the laws of the State of Washington.
(ii) This Agreement has been duly authorized, executed and delivered by the Company.
(iii) The Underwritten Shares have been duly authorized and when issued and delivered to the U.S. Underwriters and Managers against payment therefor in accordance with the terms of this Agreement and the International Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any preemptive rights.
(iv) The form of certificates for the Shares conforms to the requirements of the Washington Business Corporation Act.
(v) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the best knowledge of such counselcounsel after reasonable inquiry, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);.
(iivi) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed The statements in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses under the captions "Description of Capital Stock," "Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders" and any supplements or amendments thereto (except for the financial statements, schedules, "Information Not Required in Prospectus -- Indemnification of Directors and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except Officers," to the extent that such violation is disclosed in the Registration Statement statements constitute matters of law or legal conclusions, have been reviewed by such counsel and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to present the information disclosed therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;.
(xiivii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in Except as previously made or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Dateobtained, as the case may be, contained under the Act or as may be required under securities or blue sky laws of any jurisdiction governing the purchase and distribution of the Underwritten Shares, and except for any Governmental Approval pursuant to laws, rules and regulations governing insurance companies, as to which such counsel has not been requested to render an untrue statement opinion, no Governmental Approval is necessary or required in connection with the execution or delivery by the Company of a material fact this Agreement or omitted the Shares, as applicable, or the performance by the Company of the transactions contemplated thereby. The term "Governmental Approval" means any filing with, or authorization, approval, consent, license, order, registration, qualification or decree of any Governmental Authority pursuant to Applicable Laws (as defined below). The term "Applicable Laws" means only those laws, rules and regulations of the state of Washington and of the United States of America which, in such counsel's experience, are ordinarily applicable to transactions of the type contemplated by this Agreement. The term "Governmental Authority" means any Washington or federal legislative, judicial, administrative or regulatory body under Applicable Laws.
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several obligations of the several U.S. Underwriters to purchase and pay for the Firm Shares hereunder are Stock shall be subject to the performance by the Company and by the Selling Securityholders of all their respective obligations to be performed hereunder at or prior to the Closing Date or any later date on which Option Stock is to be purchased, as the case may be, and to the following further conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the The Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by youeffective, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement thereof shall have been issued and no proceeding for that purpose proceedings therefor shall have been instituted or, to the knowledge of the Company be pending or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent The legality and sufficiency of the sale of the Stock hereunder and the validity and form of the certificates representing the Stock, all corporate proceedings and other legal matters incident to the effective date foregoing, and the form of this Agreement, there shall not have occurred the Registration Statement and of the Prospectus (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting except as to the condition (financial or otherwisestatements contained therein), businessshall have been approved at or prior to the Closing Date by ▇▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ International, prospects, properties, net worth or results of operations of counsel for the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters.
(c) You shall have received from Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., would materially, adversely affect the market U.S. counsel for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or certain of the Selling Securityholders, an opinion, addressed to the U.S. Underwriters and their dated the Closing Date, covering the matters set forth in Annex B hereto, and if Option Stock is purchased at any date after the Closing Date, an additional opinion from such counsel, requires addressed to the making U.S. Underwriters and dated such later date, confirming that the statements expressed as of the Closing Date in such opinion remain valid as of such later date.
(d) You shall have received from ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, U.K. counsel for the Company, an opinion, addressed to the U.S. Underwriters and dated the Closing Date, covering the matters set forth in Annex C hereto, and if Option Stock is purchased at any addition date after the Closing Date, an additional opinion from such counsel, addressed to or change the U.S. Underwriters and dated such later date, confirming that the statements expressed as of the Closing Date in such opinion remain valid as of such later date.
(e) You shall be satisfied that (i) as of the Effective Date, the statements made in the Prospectuses in order Registration Statement and the Prospectus were true and correct and neither the Registration Statement nor the Prospectus omitted to state a any material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein therein, respectively, not misleading, if amending (ii) since the Effective Date, no event has occurred which should have been set forth in a supplement or supplementing amendment to the Prospectuses Prospectus which has not been set forth in such a supplement or amendment, (iii) since the respective dates as of which information is given in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, there has not been any material adverse change or any development involving a prospective material adverse change in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, and, since such dates, except in the ordinary course of business, neither the Company nor any of its subsidiaries has entered into any material transaction not referred to reflect such event in the Registration Statement in the form in which it originally became effective and the Prospectus contained therein, (iv) neither the Company nor any of its subsidiaries has any material contingent obligations which are not disclosed in the Registration Statement and the Prospectus, (v) there are not any pending or development wouldknown threatened legal proceedings to which the Company or any of its subsidiaries is a party or of which property of the Company or any of its subsidiaries is the subject which are material and which are not disclosed in the Registration Statement and the Prospectus, (vi) there are not any franchises, contracts, leases or other documents which are required to be filed as exhibits to the Registration Statement which have not been filed as required, (vii) the representations and warranties of the Company and the Selling Securityholders herein are true and correct in your opinionall material respects as of the Closing Date or any later date on which Option Stock is to be purchased, as Representatives of the several U.S. Underwriterscase may be, materially adversely affect and (viii) there has not been any material change in the market for securities in general or in political, financial or economic conditions from those reasonably foreseeable at the Sharestime of execution of this Agreement as to render it impracticable in your reasonable judgment to make a public offering of the Stock, or a material adverse change in market levels for securities in general (or those of companies in particular) or financial or economic conditions which render it inadvisable to proceed.
(cf) You shall have received on the Closing Date an opinion and on any later date on which Option Stock is purchased a certificate, dated the Closing Date or such later date, as the case may be, and signed by the Chief Executive Officer and the Chief Financial Officer of the Company, stating that the respective signers of said certificate have carefully examined the Registration Statement in the form in which it originally became effective and the Prospectus contained therein and any supplements or amendments thereto, and that the statements included in clauses (i) through (vii) of paragraph (e) of this Section 9 are true and correct.
(g) You shall have received from KPMG a letter, addressed to the U.S. Underwriters and dated the Closing Date and any later date on which Option Stock is purchased, confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published rules and regulations thereunder and based upon the procedures described in their letter delivered to you concurrently with the execution of this Agreement (herein called the Original Letter), but carried out to a date not more than three business days prior to the Closing Date or such later date on which Option Stock is purchased (i) confirming, to the extent true, that the statements and conclusions set forth in the Original Letter are accurate as of the Closing Date or such later date, as the case may be, and (ii) setting forth any revisions and additions to the statements and conclusions set forth in the Original Letter which are necessary to reflect any changes in the facts described in such Original Letter since the date of such Original Letter or to reflect the availability of more recent financial statements, data or information. The letters shall not disclose any change, or any development involving a prospective change, in or affecting the business or properties of the Company or any of its subsidiaries which, in your sole judgment, makes it impractical or inadvisable to proceed with the public offering of the Stock or the purchase of the Option Stock as contemplated by the Prospectus.
(h) You shall have been furnished evidence in usual written or telegraphic form from the appropriate authorities of the several jurisdictions, or other evidence satisfactory to you, of the qualification referred to in paragraph (f) of Section 6 hereof.
(i) Prior to the Closing Date, the Stock to be issued and sold by the Company and sold by the Selling Securityholders in the U.S. Offering shall have been duly authorized for listing by the Nasdaq National Market upon official notice of issuance and the Stock to be issued and sold by the Company and sold by the Selling Securityholders in the International Offering shall have been duly authorized for listing by EASDAQ.
(j) On or prior to the Closing Date, you shall have received from all Selling Securityholders and all directors and officers of the Company agreements, in form reasonably satisfactory to ▇▇▇▇▇▇▇▇▇ & Berlin▇▇▇▇▇ LLC, Charteredstating that without the prior written consent of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC on behalf of the U.S. Underwriters, counsel such person or entity will not, for a period of 90 days following the Companycommencement of the public offering of the Stock by the U.S. Underwriters, directly or indirectly, (i) sell, offer, contract to sell, make any short sale, pledge, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise transfer or dispose of any shares of Common Stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire Common Stock or (ii) enter into any swap or other agreement that transfers, in whole or in part, any of the Gratzonseconomic consequences or ownership of Common Stock, ▇whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
(k) The International Underwriting Agreement shall not have been terminated and all of the conditions set forth in Sections 8 and 9 thereof shall have been satisfied or waived. All the agreements, opinions, certificates and letters mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (International, counsel for the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, shall be satisfied that they comply in form and scope. In case any of the conditions specified in this Section 9 shall not be fulfilled, this Agreement may be terminated by you by giving notice to the effect that:
(i) The Registration Statement Company and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of Selling Securityholders. Any such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws termination shall be without liability of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares Selling Securityholders to the U.S. Underwriters as contemplated by and without liability of the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating Underwriters to the Company or any Subsidiarythe Selling Securityholders; provided, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as requiredhowever, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights the event of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreementtermination, the International Underwriting Agreement Company agrees to indemnify and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of hold harmless the U.S. Underwriters will receive good and marketable title from all costs or expenses incident to its ratable share the performance of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each obligations of the Company and the Subsidiaries Selling Securityholders under this Agreement, including all costs and expenses referred to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each paragraphs (i) and (j) of the Company and the Subsidiaries have been duly and validly issued and are in full force and effectSection 6 hereof, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries (ii) if this Agreement is not in violation terminated by you because of any of the terms and conditions of any of its FCC Telecommunications Licensesrefusal, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents inability or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or the Selling Securityholders to perform any Subsidiary is required agreement herein, to fulfill any of the conditions herein, or to comply with any provision hereof other than by reason of a default by any of the U.S. Underwriters, the Company will reimburse the U.S. Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overviewtransactions contemplated hereby." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted
Appears in 1 contract
Conditions of U. S. Underwriters' Obligations. The several respective obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the accuracy, when made and on each Delivery Date, of the representations and warranties of the Company and the Selling Stockholders contained herein, to the performance by the Company and the Selling Stockholders of their respective obligations hereunder and to the following additional terms and conditions:
(a) If, at The Prospectus shall have been timely filed with the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commenceCommission in accordance with Section 6(a) hereof, the Registration Statement or such and all post-effective amendment amendments to the Registration Statement shall have become effective not later than 5:30 P.M. New York City timeeffective, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, filings required by Rules Rule 424 and Rule 430A under of the Act Rules and Regulations shall have been timely mademade and no such filings shall have been made without the consent of the Representatives; no stop order suspending the effectiveness of the Registration Statement or any amendment or supplement thereto or suspending the qualification of the Shares for offering or sale in any jurisdiction shall have been issued and issued; no proceeding proceedings for that purpose the issuance of any such order shall have been instituted or, to the knowledge of the Company initiated or any U.S. Underwriter, threatened by the Commission, threatened; and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to your reasonable their satisfaction.
(b) Subsequent to the effective date of this Agreement, there No U.S. Underwriter shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of been advised by the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, adversely affect the market for the Shares, or (ii) any event or development relating shall have discovered and disclosed to or involving the Company that the Registration Statement or the Prospectus or any officer amendment or director supplement thereto contains an untrue statement of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or fact which, in the opinion of the Company and its Representatives or in the opinion of counsel or to the U.S. Underwriters and their counselUnderwriters, requires the making of any addition to is material or change in the Prospectuses in order omits to state a fact which, in the opinion of the Representatives or in the opinion of counsel to the U.S. Underwriters, is material fact and is required by the Act or any other law to be stated therein or is necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the International Underwriting Agreement, the Custody Agreements, the Powers of Attorney, the Shares, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall have received on be reasonably satisfactory in all material respects to counsel for the Closing Date an opinion of Underwriters, and the Company and
(d) Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇ ▇▇▇▇▇▇▇ & Berlinll have furnished to the Company their written opinion, Chartered, as counsel for the Company, addressed to the GratzonsCompany and dated on or before the First Delivery Date, in form and substance satisfactory to the Representatives, regarding certain tax matters relating to the Merger.
(e) Jone▇, ▇▇y, Reav▇▇ & ▇▇▇▇ogu▇ ▇▇▇ll have furnished to the Representatives their written opinion, as counsel for the Company, addressed to the U.S. Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representatives, with respect to the matters set forth in Exhibit B hereto.
(f) Jone▇, ▇▇y, Reav▇▇ & ▇ogu▇ ▇▇▇ll have furnished to the Representatives their written opinion, as counsel for the Selling Stockholders, addressed to the U.S. Underwriters and dated such Delivery Date, in form and substance satisfactory to the Representatives, with respect to the matters set forth in Exhibit C hereto.
(g) The Representatives shall have received from Bake▇ & ▇▇ ott▇, ▇.L.P., counsel for the U.S. Underwriters, such opinion or opinions, dated such Delivery Date, with respect to the issuance and ▇▇▇▇▇ ▇▇▇▇▇▇ sale of the Shares, the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives shall have received from KPMG Peat Marwick LLP a letter, in form and substance satisfactory to the Representatives, addressed to the U.S. Underwriters and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants' "comfort letters" to U.S. Underwriters in connection with registered public offerings.
(i) With respect to the letter of KPMG Peat Marwick LLP referred to in the preceding paragraph and delivered to the Representatives concurrently with the execution of this Agreement (the "TG Selling Shareholdersinitial letter"), the Company shall have furnished to the Representatives a letter (the "bring-down letter") of such accountants, addressed to the U.S. Underwriters and dated such Delivery Date (i) confirming that they are independent public accountants within the Closing meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date of
(j) On each Delivery Date, there shall have been furnished to the Representatives a certificate, dated such Delivery Date and addressed to youthe Representatives, as Representatives signed on behalf of the several U.S. UnderwritersCompany by its Chief Executive Officer and its Chief Financial Officer, to the effect that:
that (i) The Registration Statement the representations, warranties and all post-effective amendmentsagreements of the Company contained in this Agreement are true and correct, as if any, have become effective under the Act and, to the knowledge made at and as of such counselDelivery Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be complied with or satisfied at or prior to such Delivery Date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued issued, and no proceedings proceeding for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale initiated or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
threatened; (iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part signers of the Company (except as said certificate have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of carefully examined the Registration Statement and the Prospectuses, including general review Prospectus and discussion of the contents thereof but has made no independent check any amendments or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company)supplements thereto, and no facts have come such documents contain all statements and information required to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effectivebe included therein, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an do not include any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) since the Effective Date there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth; and (v) no event contemplated by subsection (l) of this Section 9 in respect of the Company or the Subsidiaries shall have occurred.
(k) The Selling Stockholders shall have furnished to the Representatives on each Delivery Date a certificate, dated such Delivery Date, signed by or on behalf of the Selling Stockholder to the effect that the representations, warranties and agreements of the Selling Stockholder contained herein are true and correct as of such Delivery Date and that the Selling Stockholder has complied with all agreements contained herein to be performed by the Selling Stockholder at or prior to such Delivery Date.
(l) Since the Effective Date, neither the Company nor any of the Subsidiaries shall have sustained any material loss or interference with its business by fire, flood, explosion, accident or other calamity, whether or not covered by insurance, or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree which is materially adverse to the Company or the Subsidiaries; nor shall there have been a change in the capital stock, short-term debt or long-term debt of the Company or the Subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, operations, business, prospects, management, capitalization, financial condition, results of operations or net worth of the Company or the Subsidiaries, which loss, litigation, change or development, in the judgement of the Representatives, shall render it impractical or inadvisable to proceed with the payment for and delivery of the Shares.
(m) Subsequent to the execution and delivery of this Agreement, there shall not have occurred any of the following: (i) trading in securities generally on the NYSE or the American
(n) The NYSE shall have approved the Shares for listing, subject only to official notice of issuance and evidence of satisfactory distribution.
(o) The Representatives shall have been furnished by the Company such additional documents and certificates as the Representatives or counsel for the U.S. Underwriters may reasonably request.
(p) Simultaneously with the closing hereunder on the First Delivery Date, the closing of the International Underwriting Agreement shall have occurred. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory in form and substance to the Representatives and to counsel for the U.S. Underwriters. The Company shall furnish to the Representatives conformed copies of such opinions, certificates, letters and other documents in such number as they shall reasonably request. If any of the conditions specified in this Section 9 shall not have been fulfilled, when and as required by this Agreement, this Agreement and all obligations of the U.S. Underwriters hereunder may be canceled at, or at any time prior to, each Delivery Date, by the Representatives. Any such cancellation shall be without liability of the U.S. Underwriters to the Company, the Selling Stockholders or any of their affiliates. Notice of such cancellation shall be given to the Company in writing, or by telegraph or telephone and confirmed in writing.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Iri International Corp)
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto (including pursuant to Rule 462(b)) to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. P.M., New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(bc) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of on the Company or and the Subsidiaries Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, materially adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company Company, the Subsidiaries, or any officer or director of the Company or any Selling Shareholder the Subsidiaries which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(cd) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders")a certificate, dated the Closing Date Date, signed on behalf of the Company by any two officers (for the purpose of this subsection (d) "officer" shall mean the Chairman of the Board, the President, any Vice President, the Chief Financial Officer, the Treasurer, the Secretary or Assistant Secretary) in form and addressed substance reasonably satisfactory to you, as Representatives of the several U.S. Underwritersconfirming, to the effect that:
(i) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(v) To the knowledge of such counsel, (A) other than as described in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary or to which the Company's or any Subsidiary's properties are subject, which, if adversely determined, would reasonably be expected to have a Material Adverse Effect, and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiary, of a character that are required to be described in the Registration Statement or the Prospectuses or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or Date, the Option matters set forth in paragraphs (a), (b), and (c) of this Section 8, certain incumbency matters and that, as of the Closing Date, as the case may be, contained an untrue statement obligations of a material fact the Company to be performed hereunder on or omitted prior thereto have been duly performed.
Appears in 1 contract
Sources: u.s. Underwriting Agreement (Adelphia Communications Corp)
Conditions of U. S. Underwriters' Obligations. The several obligations of the U.S. Underwriters to purchase the Firm Shares hereunder are subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or any U.S. Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your reasonable satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwiseother), business, prospects, properties, net worth worth, or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your opinion, as Representatives of the several U.S. Underwriters, would materially, materially adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of Cozen and ▇'▇▇▇▇▇▇▇ & Berlin, Chartered, counsel for the Company, Company and the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated and validly subsisting under the laws of the Commonwealth of Pennsylvania with full corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses, [and is duly registered and qualified to conduct its business and is in good standing in each jurisdiction or place where the nature or the conduct of the business transacted or property owned or leased by it makes such registration or qualification necessary, except where the failure so to register or qualify or be in good standing would not have a Material Adverse Effect];
(ii) Each of the Subsidiaries is either (A) a corporation duly organized and validly existing in good standing under the laws of the jurisdiction of its organization, or (B) a limited partnership duly organized under the laws of the Commonwealth of Pennsylvania; [with full corporate power and authority to own, lease, and operate its properties and to conduct its business as described in the Registration Statement and the Prospectuses (and any amendment or supplement thereto); and all the outstanding shares of capital stock of each of the Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable, and are owned by the Company directly, free and clear of any perfected security interest, or, to the best knowledge of such counsel after reasonable inquiry, any other security interest, lien, adverse claim, equity or other encumbrance];
(iii) The authorized and outstanding capital stock of the Company is as set forth under the caption "Capitalization" in the Prospectuses; and the authorized capital stock of the Company conforms in all material respects as to legal matters to the description thereof contained in the Prospectuses under the caption "Description of Capital Stock";
(iv) All the shares of capital stock of the Company outstanding prior to the issuance of the Shares to be issued and sold by the Company pursuant to the Underwriting Agreements have been duly authorized and validly issued, are fully paid and nonassessable;
(v) The Underwritten Shares to be issued and sold to the U.S. Underwriters and Managers by the Company under the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized and when issued and delivered to the U.S. Underwriters and Managers against payment therefor in accordance with the terms of the U.S. Underwriting Agreement and the International Underwriting Agreement, will be validly issued, fully paid and nonassessable and free of any (A) preemptive rights or (B) to the best knowledge of such counsel after reasonable inquiry, similar rights that entitle or will entitle any person to acquire any Shares upon the issuance thereof by the Company;
(vi) The form of certificates for the Shares conforms to the requirements of the Pennsylvania Business Law of 1988, as amended;
(vii) The Registration Statement and all post-effective amendments, if any, have become effective under the Act and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending before or contemplated by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(iiviii) The Company has the requisite corporate power and authority to enter into the U.S. Underwriting Agreement and the International Underwriting Agreement and to issue, sell and deliver the Underwritten Shares to be sold by it to the U.S. Underwriters and Managers as provided therein, and each of the U.S. Underwriting Agreement and the International Underwriting Agreement have been duly authorized, executed and delivered by the Company and is a legal, valid and binding agreement of the Company,
(ix) Neither the Company nor any of the Subsidiaries is (A) in violation of its respective certificate of incorporation or bylaws or other organizational documents or (B) to the knowledge of such counsel, in default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note or other evidence of indebtedness, except as may be disclosed in the Prospectuses or where any such default or defaults in the aggregate would not, singularly or in the aggregate, have a Material Adverse Effect;
(x) Neither the offer, issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement conflicts or will conflict with or constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws or other organizational document of the Company or its any of the Subsidiaries or any material agreement, indenture, lease or other instrument known to such counsel to which the Company or any Subsidiary is a party or by which they it or any of their its properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary of the Subsidiaries under any such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effectnor, nor to such counsel's knowledge will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), or any ruling, judgment, injunction, order or decree of any court or governmental entity or instrumentality known to such counsel after reasonable inquirycounsel, to be and applicable to the Company, any Subsidiary the Subsidiaries or any of their respective properties, which violation would have a Material Adverse Effect;
(iiixi) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state or foreign securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(ivxii) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for the financial statements, schedules, and notes thereto and other financial and statistical data included therein or omitted therefromtherein, as to which such counsel need not express any opinion) comply as to form in all material respects with the requirements of the Act;
(vxiii) To the knowledge of such counsel, (A) other than as described or contemplated in the Prospectuses, there are no legal or governmental proceedings pending or threatened against the Company or any Subsidiary of the Subsidiaries, or to which the Company's , the Subsidiaries or any Subsidiary's properties of their respective properties, is subject which are subject, which, if adversely determined, would reasonably required to be expected to have a Material Adverse Effect, described in the Registration Statement or Prospectuses (or any amendment or supplement thereto) and (B) there are no agreements, contracts, indentures, leases or other instruments relating to the Company or any Subsidiaryof the Subsidiaries, of a character that are required to be described in the Registration Statement or the Prospectuses (or any amendment or supplement thereto) or to be filed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vixiv) The To the knowledge of such counsel, the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements Agreement have each been duly authorized, executed and delivered by or on behalf of each of the TG Selling Shareholders [and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to creditors' rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal or state securities laws or the public policy underlying such laws];
(viixv) To the best knowledge of such counsel after reasonable inquiry and except as set forth in the Prospectuses, neither the Company nor any of the Subsidiaries is in violation of any Laws or of any ruling, judgment, injunction, order or decree of any court or governmental agency or body having jurisdiction over the Company or any of the Subsidiaries which violation or violations would not, singularly or in the aggregate, have a Material Adverse Effect;]
(xvi) The Company and each of the Subsidiaries has all necessary orders, consents, approvals, permits, licenses, franchises and authorizations of and from all regulatory authorities to conduct their respective businesses as described in the Registration Statement and Prospectuses, except, in any case, where the failure to so possess would not, singularly or in the aggregate, have a Material Adverse Effect, and to the best of such counsel's knowledge after due inquiry, neither the Company nor the Subsidiaries has received any actual notification from any regulatory authority to the effect that any additional approval is required to be obtained by the Company or the Subsidiaries;]
(xvii) The statements in the Registration Statement and Prospectuses, insofar as they are descriptions of contracts, agreements or other legal documents, or refer to statements of law or legal conclusions, are accurate in all material respects and present fairly the information required to be shown;
(xviii) Except as described in the Prospectuses, such counsel does not know of any outstanding option, warrant or other right calling for the issuance of, and such counsel does not know of any commitment, plan or arrangement to issue, any share of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company; and such counsel does not know of any holder of any security of the Company or any other person who has the right, contractual or otherwise, to cause the Company to sell or otherwise issue to them, or permit them to underwrite the sale of, any of the Shares or the right to have any Common Stock or other securities of the Company included in the Registration Statement or the right, as a result of the filing of the Registration Statement, to require registration under the Act of Common Stock or other securities of the Company;
(xix) The Company is not now and upon the sale of the Shares to be issued and sold in accordance herewith and upon application of the net proceeds from such sale as described in the Prospectuses under the caption "Use of Proceeds" will not be an "investment company" within the meaning of the 1940 Act;
(xx) The Company and the Subsidiaries own or possess all patents, trademarks, trademark registrations, service marks, service ▇▇▇▇ registrations, trade names, copyrights, licenses, inventions, trade secrets and rights described in the Prospectuses as being owned by them or any of them or, to the best knowledge of such counsel after reasonable inquiry, necessary for the conduct of their respective businesses, except where the failure to so own or possess would not, singularly or in the aggregate, have a Material Adverse Effect, and such counsel is not aware of any claim to the contrary or any challenge by any other person to the rights of the Company and the Subsidiaries with respect to the foregoing;]
(xxi) Each TG Selling Shareholder has full legal right, power and authorityauthorization, and any approval required by lawlaw (except such as may be required under state or foreign securities or Blue Sky laws), to sell, assign, transfer and deliver good and marketable valid title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viiixxii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting this Agreement and the Custody Agreement sale of the Shares by each Selling Shareholder to the TG Underwriters, and compliance by such Selling Shareholders Shareholder with the terms of this Agreement, including the delivery to the Underwriters of certificates evidencing such shares and the consummation execution and delivery to the Underwriters of a stock power in blank, have been duly authorized by all necessary action on the transactions contemplated thereby part of such Selling Shareholder and to the knowledge of such counsel, do not, and will not not, conflict with, constitute or result in a breach of any of the terms and provisions of, or constitute a default under (I) any statute, rule or regulation (assuming compliance with all applicable state securities and Blue Sky laws) relating to such Selling Shareholder or its legal or regulatory status in each case, that in the experience of such counsel are normally applicable to transactions of the type provided for in this Agreement, (II) any material agreementjudgment, indentureorder, lease rule, injunction or regulation of any court or governmental agency or body, domestic or foreign, known to such counsel as having jurisdiction over such Selling Shareholder or any of its respective properties or (III) any material contract, agreement or other instrument known to such counsel to which any TG such Selling Shareholder is a party or by which any of them or any of their assets or property is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder or to any of the property or assets of any TG Selling Shareholder, except for any such conflicts, breaches, defaults or violations that would not have a Material Adverse Effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in violation of the Communications Act of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC or, to such counsel's knowledge, threatened by the FCC against the Company or any Subsidiary or otherwise which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing with, the FCC or with any state PUC on the part of the Company or any Subsidiary is required in connection with the issuance or sale of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance by the Company of its obligations under the U.S. Underwriting Agreement or the International Underwriting Agreement will result in a violation of the Communications Act, or any applicable rules or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writ, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, except as described in the Prospectuses under the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management of the Company and our review of any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and the Prospectuses, including general review and discussion of the contents thereof but has made no independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company), and no facts have come to the attention of such counsel that would lead them to believe that the Registration Statement at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, contained an untrue statement of a material fact or omitted
Appears in 1 contract
Conditions of U. S. Underwriters' -------------------------------- Obligations. The several obligations of the several U.S. Underwriters to purchase the Firm Shares ----------- hereunder are subject to the accuracy of the representations and warranties of the Company herein contained, to the performance by the Company of its obligations hereunder, and to the following further conditions:
(a) If, at the time this Agreement is executed and delivered, it is necessary for the The Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City timeon the date hereof, or with the consent of the Global Coordinator, at a later time and date, not later, however, than 5:30 P.M. on the first business day following the date hereof, or at such later time and date as may be approved by a majority in interest of the several U.S. Underwriters; and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; at Closing Time no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been instituted or, to under the knowledge of the Company 1933 Act or any U.S. Underwriter, proceedings therefor initiated or threatened by the Commission, and any request on the part of the Commission for additional information (to be included in the Registration Statement or the Prospectuses or otherwise) shall have been complied with to your the reasonable satisfactionsatisfaction of U.S. counsel to the Underwriters. If the Company has elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the Securities and any price-related information previously omitted from the effective Registration Statement pursuant to such Rule 430A shall have been transmitted to the Commission for filing in accordance with Rule 424(b) of the 1933 Act Regulations within the prescribed time period and prior to Closing Time the Company shall have provided evidence satisfactory to the Global Coordinator of such timely filing, or a post-effective amendment providing such information shall have been promptly filed and declared effective in accordance with the requirements of Rule 430A of the 1933 Act Regulations.
(b) Subsequent to At Closing Time the effective date of this Agreement, there U.S. Representatives shall not have occurred received:
(i) any change, or any development involving a prospective change, that would have a Material Adverse Effect in or affecting the condition (financial or otherwise), business, prospects, properties, net worth or results of operations of the Company or the Subsidiaries not contemplated by the Prospectuses, which in your The favorable opinion, dated as Representatives of the several U.S. UnderwritersClosing Time, would materially, adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Company or any officer or director of the Company or any Selling Shareholder which makes any statement made in the Prospectuses untrue in any material respect or which, in the opinion of the Company and its counsel or the U.S. Underwriters and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Representatives of the several U.S. Underwriters, materially adversely affect the market for the Shares.
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ Debevoise & Berlin, Chartered, counsel for the Company, the Gratzons, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (special counsel for the "TG Selling Shareholders"), dated the Closing Date and addressed to you, as Representatives of the several U.S. UnderwritersCompany, to the effect that:
(i1) The Company and each of its Significant Subsidiaries have been duly incorporated and are validly existing and in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and in good standing as foreign corporations in the jurisdictions identified by such counsel; all outstanding shares of capital stock of the subsidiaries of the Company are owned by the Company directly, or indirectly through wholly owned subsidiaries, subject to the lien created under the Security Agreement; the Company and each of its Significant Subsidiaries have all corporate power and authority necessary to own or hold their respective properties and to conduct their respective businesses as described in the Prospectuses;
(2) Except as described in the Prospectuses (including the documents incorporated by reference therein), there are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any shares of the Class A Common Stock pursuant to the Company's Restated Certificate of Incorporation, as amended, or Amended and Restated By-laws, each as in effect on the date of such opinion, or any agreement or other outstanding instrument to which the Company is a party known to such counsel, except for restrictions arising under the Amended and Restated Stockholders' Agreement dated as of February 5, 1992;
(3) The Securities to be purchased by the U.S. Underwriters and the International Managers from the Company have been duly authorized for issuance and sale to the U.S. Underwriters pursuant to this Agreement and the U.S. Pricing Agreement and to the International Managers pursuant to the International Purchase Agreement and the International Pricing Agreement, respectively, and, when issued and delivered by the Company and upon payment therefor by the U.S. Underwriters and the International Managers pursuant to this Agreement and the U.S. Pricing Agreement and the International Purchase Agreement and the International Pricing Agreement, respectively, will be validly issued and fully paid and non-assessable; the Class A Common Stock conforms in all material respects as to legal matters to the description of the Class A Common Stock of the Company contained in the Prospectuses under the caption "Description of Capital Stock"; the authorized capital stock of the Company and, to the belief of such counsel based on the review and other procedures referred to in the penultimate paragraph of this Section 5(b)(i) and subject to such paragraph, the outstanding shares of capital stock of the Company as of the respective dates set forth in the Prospectuses were as set forth in the Prospectuses; and the statements made in the Prospectuses under the caption "Description of Capital Stock," insofar as they purport to summarize the terms of the Company's capital stock (including the Class A Common Stock), fairly present in all material respects the information called for with respect thereto by the 1933 Act Regulations;
(4) The Registration Statement and all post-effective amendments, if any, have become was declared effective under the Act as of the date and time specified in such opinion, the Prospectuses were filed with the Commission pursuant to the subparagraph of Rule 424(b) of the 1933 Act Regulations specified in such opinion on the date specified therein and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings proceeding for that purpose are is pending before or contemplated threatened by the Commission; and any required filing of the Prospectuses pursuant to Rule 424(b) has been made in accordance with Rule 424(b);
(ii) Neither the issuance, sale or delivery of the Underwritten Shares, nor the execution, delivery or performance of the U.S. Underwriting Agreement or the International Underwriting Agreement, or compliance by the Company with all provisions of this Agreement and the International Underwriting Agreement, nor consummation by the Company of the transactions contemplated hereby or by the International Underwriting Agreement constitutes or will constitute a breach of, or a default under, the certificate or articles of incorporation or bylaws of the Company or its Subsidiaries or any material agreement, indenture, lease or other instrument to which the Company or any Subsidiary is a party or by which they or any of their properties is bound and that is made an exhibit to the Registration Statement, or, except as disclosed in the Registration Statement, will 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 such agreement, indenture, lease or other instrument, which breach default or other event would have a Material Adverse Effect, nor will any such action result in any violation of any existing law, regulation, ruling (assuming compliance with all applicable state securities and Blue Sky laws), judgment, injunction, order or decree known to such counsel after reasonable inquiry, to be applicable to the Company, any Subsidiary or any of their properties, which violation would have a Material Adverse Effect;
(iii) No consent, approval, authorization or other order, or registration or filing with, any court, regulatory body, administrative agency or other governmental body, agency, or official is required on the part of the Company (except as have been obtained under the Act or such as may be required under state securities or Blue Sky laws governing the purchase and distribution of the Shares) for the valid issuance and sale of the Shares to the U.S. Underwriters as contemplated by the U.S. Underwriting Agreement;
(iv5) The Registration Statement and the Prospectuses and any supplements or amendments thereto (except for that no opinion need be expressed as to the financial statements, schedules, and notes thereto statements and other financial and statistical data included therein or omitted therefrom, as to which such counsel need not express any opinioninformation contained therein) comply as to form in all material respects with the requirements of the ActAct and the 1933 Act Regulations; and the documents incorporated by reference in the Prospectuses (except that no opinion need be expressed as to the financial statements and other financial and statistical information contained therein), when they were filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations;
(v6) To the knowledge Such counsel does not know of such counselany litigation or any governmental proceeding, (A) other than as described in the Prospectuses, there are no legal inquiry or governmental proceedings investigation pending or threatened against the Company or any Subsidiary of its subsidiaries (other than any litigation or governmental proceeding, inquiry or investigation under the Communications Act of 1934, as amended (the "Communications Act") or the rules and regulations of the FCC, as to which such counsel need express no opinion) which (individually or in the Company's or any Subsidiary's properties are subject, which, if adversely determined, would aggregate) is reasonably be expected likely to have a Material Adverse Effectmaterial adverse effect on the Company and its subsidiaries taken as a whole, or adversely affect the consummation of this Agreement, the U.S. Pricing Agreement, the International Purchase Agreement and the International Pricing Agreement or the performance by the Company of its obligations hereunder or thereunder;
(B7) there are no agreements, contracts, indentures, leases Such counsel does not know of any contracts or other instruments relating documents which are required to be filed as exhibits to the Registration Statement by the 1933 Act or the 1933 Act Regulations which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the 1933 Act Regulations;
(8) To such counsel's knowledge, neither the Company nor any of its Significant Subsidiaries is in violation of its corporate charter or by-laws, or in default under any material agreement, indenture or instrument (except, in the case of any such material agreement, indenture or instrument, for any such violation or default which would not have a material adverse effect on the Company and its subsidiaries taken as a whole);
(9) The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
(10) This Agreement has been duly authorized, executed and delivered by the Company; the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby by the Company will not conflict with, or result in the creation or imposition of any lien, claim, encumbrance, preemptive rights or any claim of any third party upon any of the assets of the Company or any Subsidiaryof its subsidiaries pursuant to the terms of, of or constitute a character that are required to be described in the Registration Statement material default under, any agreement, indenture or the Prospectuses or to be filed instrument listed as an exhibit to the Registration Statement that are not described or filed as required, as the case may be;
(vi) The U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreements have each been duly executed and delivered by or on behalf of each of the TG Selling Shareholders and are valid and binding agreements of each TG Selling Shareholder enforceable against each TG Selling Shareholder in accordance with their respective terms except that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyances, moratorium or other similar laws now or hereafter in effect relating to rights of creditors and other obligees generally, (ii) the remedy of specific performance and other forms of equitable relief may be subject to certain equitable defenses and principles and to the discretion of the court before which the proceedings may be brought and (iii) rights to indemnity and contribution thereunder may be limited by Federal Company or state securities laws or the public policy underlying such laws;
(vii) Each TG Selling Shareholder has full legal right, power and authority, and any approval required by law, to sell, assign, transfer and deliver good and marketable title to the Additional Shares which such TG Selling Shareholder has agreed to sell pursuant to the U.S. Underwriting Agreement and the International Underwriting Agreement;
(viii) The execution and delivery of the U.S. Underwriting Agreement, the International Underwriting Agreement and the Custody Agreement by the TG Selling Shareholders and the consummation of the transactions contemplated thereby will not conflict with, constitute a breach of, or a default under any material agreement, indenture, lease or other instrument known to such counsel to which any TG Selling Shareholder its subsidiaries is a party or by which any of them the Company or any of their assets or property its subsidiaries is bound, or violate any statute, law, regulation, court order or decree known to such counsel to be applicable to any TG Selling Shareholder bound or to which any of the property properties or assets of the Company or any TG Selling Shareholderof its subsidiaries is subject, except for any where such conflictsconflict, breacheslien, defaults claim, encumbrance, preemptive right, third party claim or violations that default would not have a Material Adverse Effect material adverse effect on the ability of such TG Selling Shareholder to consummate the transactions contemplated by the Underwriting Agreements;
(A) Each TG Selling Shareholder has full right power, and authority to enter into this Agreement, the International Underwriting Agreement, the respective Powers of Attorneys and the Custody Agreements, and (B) upon delivery of the Additional Shares to be sold by such TG Selling Shareholder hereunder and payment of the purchase price therefor as herein contemplated, each of the U.S. Underwriters will receive good and marketable title to its ratable share of the Additional Shares purchased by it from such TG Selling Shareholder, free and clear of any pledge, lien, security interest, encumbrance, claim or equity, assuming the U.S. Underwriters acquire the Additional Shares without notice of any adverse claim as such term is used in Section 8-302 of the Uniform Commercial Code in effect in the State of New York;
(x) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, and the Section 214 Facilities Authorization (as such terms are defined in the Prospectus) are the only telecommunications regulatory licenses, permits, authorizations, consents and approvals ("Telecommunications Licenses") required from the Federal Communications Commission (the "FCC") for each of the Company and the Subsidiaries to conduct its business subsidiaries taken as a whole, or result in the manner described in the Prospectus. The FCC Telecommunications Licenses currently held by each of the Company and the Subsidiaries have been duly and validly issued and are in full force and effect, and no proceedings to revoke or restrict such FCC Telecommunications Licenses are pending or, to our knowledge, threatened. Each of the Company and the Subsidiaries is not in violation of any of the terms and conditions of any of its FCC Telecommunications Licenses, is not in a violation of the Communications Act corporate charter or by-laws of 1934, as amended, and is not in violation of any FCC rules and regulations, except to the extent that such violation is disclosed in the Registration Statement and would not have a Material Adverse Effect. Each of the Company and the Subsidiaries has in effect with the FCC all international switched, international private line and/or United States domestic interexchange service tariffs necessary to conduct its business in the manner described in the Prospectus;
(xi) To the extent they constitute a summary of legal matters, documents or proceedings referred to therein, the statements in the Prospectus under the captions "Risk Factors - Substantial Government Regulation-United States" and "Business-Government Regulation" are accurate in all material respects and fairly summarize in all material respects all matters referred to therein, and there are no material omissions under such captions with respect to such legal matters, documents and proceedings;
(xii) Each of the Company and the Subsidiaries has obtained all state Telecommunications Licenses and filed all tariffs required for the provision of telecommunications services in any state to conduct its business in the manner described in or contemplated by the Prospectus except where the failure to obtain such licenses and/or file such tariffs would not have, individually or in the aggregate, a Material Adverse Effect;
(xiii) There is no outstanding adverse judgment, injunction, decree or order that has been issued by the FCC against the Company or any Subsidiary or any action, proceeding or investigation pending before the FCC of its subsidiaries or, to such counsel's knowledge, threatened by any material order, rule or regulation of any court or governmental agency having jurisdiction over the FCC against Company, any of its subsidiaries or their property (except that such counsel need not express any opinion as to the Company provisions relating to indemnity and contribution or as to any Subsidiary order, rule or otherwise whichregulation of the FCC); and no consent, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xiv) There is no outstanding adverse judgment, injunction, decree authorization or order that has been issued by any state public utility commission ("PUC") against the Company or any Subsidiary or any action, proceeding or investigation pending before or, to counsel's knowledge, threatened by any state PUC against the Company or any Subsidiary which, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect;
(xv) No license, permit, consent, approval, order or authorization of, or filing or registration with, the FCC any court or with any state PUC on the part of the Company or any Subsidiary governmental agency is required in connection with for the issuance or sale execution, delivery and performance of the Common Stock;
(xvi) Neither the issuance and sale of the Common Stock nor the performance this Agreement by the Company of its obligations under Company, except such as may be required by the U.S. Underwriting Agreement or 1933 Act, the International Underwriting Agreement will result in a violation of 1934 Act, the Communications ActAct or state securities laws, or any applicable rules except where the failure to obtain such consent, authorization or the regulations promulgated under the Communications Act, or, to counsel's knowledge, any order, writor to effect such filing or registration, judgment, injunction, decree or award of the FCC binding on the Company or any Subsidiary; and
(xvii) The Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization and the Section 214 Facilities Authorization require the Company and its Subsidiaries to provide any international call-back service using uncompleted call signaling in a manner that is consistent with the laws of the countries in which they operate. Although we do would not provide legal services to the Company or its Subsidiaries regarding the application or interpretation of any non-U.S. law and although we have performed no due diligence in this regard other than discussing with management of the Company the Company's operations and compliance with applicable FCC requirements and reviewing any portions of the opinions of local counsel of Australia, France, Germany, Hong Kong, Japan, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service in certain jurisdictions in which the Company operates, we are not aware of any non-compliance in the provision of international call-back service by the Company with the laws of any of these foreign jurisdictions in which the Company operates that would constitute a violation of the Section 214 Switched Voice Authorization, the Section 214 Private Line Authorization, or the Section 214 Facilities Authorization and have a Material Adverse Effect material adverse effect on the Company and its Subsidiaries, subsidiaries taken as a whole, except as described in ; and
(11) Neither the Prospectuses under Company nor any of its subsidiaries is an "investment company" within the captions "Risk Factors -- Substantial Government Regulation" and "Business -- Government Regulation Overview." For the purpose of making this statement, we have relied upon our discussions with management meaning of the Investment Company Act and our review of any portions the rules and regulations of the opinions Commission thereunder. Such counsel shall have stated that, while they have not themselves checked the accuracy and completeness of local counsel of Australiaor otherwise verified, France, Germany, Hong Kong, Japanand are not passing upon and assume no responsibility for the accuracy or completeness of, the Netherlands, Sweden, Switzerland, and the United Kingdom specifically regarding the provision of international call-back service provided by the Company, without any further inquiry or any independent review of any laws of any such jurisdictions. In addition, such counsel shall state that although counsel has not undertaken, except as otherwise indicated in their opinion, to determine independently, and does not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, such counsel has participated in the preparation of the Registration Statement and or the Prospectuses, including general except to the limited extent stated in paragraph (3) above, in the course of their review and discussion of the contents thereof of the Registration Statement and Prospectuses with certain officers and employees of the Company and its independent accountants, but has made no without independent check or verification thereof (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company)verification, and no facts have come to the their attention of such counsel that would lead which cause them to believe that the Registration Statement (other than the financial statements and other financial and statistical information contained therein, as to which they need express no belief) at the time the Registration Statement became effective, or the Prospectuses, as of their respective dates and as of the Closing Date or the Option Closing Date, as the case may be, 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 contained therein not misleading, or that the Prospectuses (other than the financial statements and other financial and statistical information contained therein, as to which they need express no belief), as of their dates and as of the Closing Time, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of officers of the Company and public officials. In rendering the opinion set forth in paragraph (1) above concerning the corporate power and authority of each of the Significant Subsidiaries, such counsel may assume that the relevant laws of jurisdictions other than New York and Delaware do not differ materially from the corresponding laws of the State of New York or the General Corporation Law of the State of Delaware, and in rendering the opinion set forth in such paragraph concerning the ownership of the outstanding shares of capital stock of the subsidiaries of the Company, such counsel may rely exclusively upon a review of the stock transfer records for each such subsidiary and a certificate of an officer of the Company. In rendering the opinion set forth in paragraph (4) above, such counsel may rely exclusively on telephone advice received from the staff of the Commission. In rendering the opinion set forth in paragraph (6) above, such counsel may rely exclusively upon discussions with attorneys at Debevoise & ▇▇▇▇▇▇▇▇ who work on the matters with respect to which such firm has represented the Company and upon a certificate of an officer of the Company. In rendering the opinion set forth in paragraph (7) above as to the filing of all contracts or other documents which are required to be filed by the 1933 Act or the 1933 Act Regulations, such counsel may, as to factual matters, rely on a certificate of an officer of the Company.
(ii) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, as special FCC counsel to the Company, shall have furnished to the U.S. Representatives their opinion addressed to the Underwriters and dated as of the Closing Time to the effect that with respect to matters arising under the Communications Act and the rules and regulations of the FCC:
(1) No approval is required under the Communications Act or the rules and regulations of the FCC in connection with the issuance and sale of the Class A Common Stock;
(2) The Company and its subsidiaries have such authorizations, approvals, orders, licenses, franchises, certificates and permits appropriate or necessary under the Communications Act and the rules and regulations of the FCC to conduct their broadcasting business, and such authorizations,
Appears in 1 contract
Sources: u.s. Purchase Agreement (Infinity Broadcasting Corp)