Exhibit 1.1
9,375,000 SHARES
CARRIER 1 INTERNATIONAL S.A.
COMMON STOCK (PAR VALUE $2 PER SHARE)
UNDERWRITING AGREEMENT
[______], 2000
[_____________], 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
Salomon Brothers International Limited
(as representatives of the several Underwriters
named in Schedule I hereto)
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇ Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
England
Dear Sirs and Mesdames:
Carrier 1 International S.A., a societe anonyme organized
under the laws of the Grand Duchy of Luxembourg (the "COMPANY"), proposes to
issue and sell, and certain shareholders of the Company (the "SELLING
SHAREHOLDERS") named in Schedule II hereto severally propose to sell, to the
several Underwriters named in Schedule I hereto (the "UNDERWRITERS") an
aggregate of 9,375,000 shares of common stock, par value $2 per share, of the
Company (the "FIRM SHARES") of which 7,500,000 shares are to be issued and sold
by the Company and 1,875,000 shares are to be sold by the Selling Shareholders,
each Selling Shareholder selling the amount set forth opposite such Selling
Shareholder's name in Schedule II hereto. The shares to be sold by the Selling
Shareholders other than Carrier One, LLC, a Delaware limited liability company
("CARRIER ONE LLC") (the "WARRANTHOLDERS") will be issued upon exercise of
outstanding warrants (the "WARRANTS").
The Company and the Selling Shareholders also severally
propose to sell to the several Underwriters up to an additional 1,125,000 and
281,250 shares (the "ADDITIONAL SHARES") of common stock, par value $2 per
share, if and to the extent that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
("MSIL"), after consultation with Salomon Brothers International Limited ("SBIL"
and together with MSIL, the "GLOBAL COORDINATORS") shall have determined to
exercise, on behalf of the Underwriters, the right to purchase such Additional
Shares granted to the Underwriters in Section 2 hereof, each Selling Shareholder
selling up to the amount of Additional Shares set forth opposite such Selling
Shareholder's name in Schedule II hereto. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "SHARES." All shares of
common stock, par value $2 per share, of the Company to be outstanding after
giving effect to the sales contemplated hereby, including the shares to be
retained by its existing shareholders, are hereinafter referred to as the "SHARE
CAPITAL." The Company and the Selling Shareholders are hereinafter collectively
referred to as the "SELLERS."
It is expected that after subscription for the Shares pursuant
to Section 4 and after the then existing share capital of the Company has been
admitted for trading on the Neuer Markt segment of the Frankfurt Stock Exchange
and before the ADRs referred to below have been admitted for trading on the
Nasdaq Stock Market, the Company, the Selling Shareholders and the Global
Coordinators, on behalf of the Underwriters, will enter into a Pricing Agreement
(the "PRICING AGREEMENT"), the form of which is attached as ANNEX A hereto,
which sets forth, among other things, the price to be paid per Share for the
Firm Shares and any Additional Shares to be purchased by the several
Underwriters provided they are able to agree on such terms and the other matters
set forth therein.
Shares shall be sold in the form of registered shares or, at
the election of the Underwriters to provide for the preferences of those
purchasing from them in the United States and Canada, in the form of American
Depositary Shares ("ADSS"), each Share being represented by five such ADSs. The
Company will enter into a Deposit Agreement dated the Closing Date (as defined
below) (the "DEPOSIT AGREEMENT") among the Company, Bankers Trust Company, as
depositary (the "DEPOSITARY") and the holders from time to time of American
Depositary Receipts ("ADRS") issued thereunder by the Depositary and evidencing
the ADSs. The ADSs and the ADRs will be issued in accordance with the Deposit
Agreement. The Shares represented by the ADSs to be delivered on the Closing
Date are to be deposited with the Depositary on or prior to such date against
the issuance of ADRs evidencing such ADSs.
The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-1 relating to
the Shares. The registration statement contains the U.S. prospectus, to be used
in connection with the offering and sale of Shares and ADSs in the United States
and Canada to United States and Canadian Persons (the "U.S. PROSPECTUS"). In
connection with the sale of the shares in Germany, the Company has filed with
the Frankfurt Stock Exchange a German language preliminary sales prospectus
which was approved (GEBILLIGT) by the Frankfurt Stock Exchange on [__________],
2000 (the "UNVOLLSTANDIGER VERKAUFSPROSPEKT") and published the day thereafter
and, prior to the Closing Date intends to publish a German language final sales
prospectus (the "VERKAUFSPROSPEKT") which will also serve as the listing
prospectus (UNTERNEHMENSBERICHT) relating to the Shares to be offered in
Germany. The Unvollstandiger Verkaufsprospekt and the Verkaufsprospekt are
hereinafter referred to as the "GERMAN PROSPECTUS". The international prospectus
to be used in connection with sales outside of the United States, Canada and
Germany (the "INTERNATIONAL PROSPECTUS") is identical to the U.S. Prospectus
except for the outside front cover page.
The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the U.S. Prospectus and the
International Prospectus in the respective forms first used to confirm sales
of Shares or ADSs and the German Prospectus are hereinafter collectively
referred to as the "PROSPECTUS." If the Company has filed an abbreviated
registration statement to register additional shares of common stock pursuant to
Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"),
then any reference herein to the term "REGISTRATION STATEMENT" shall be deemed
to include such Rule 462 Registration Statement. A registration statement on
Form F-6 relating to the ADSs has also been filed with the Commission (such
registration statement, as amended at the time it becomes effective, including
the exhibits thereto, is hereinafter referred to as the "ADS REGISTRATION
STATEMENT"). Unless the context otherwise requires, any reference herein to the
term "REGISTRATION STATEMENT" shall be deemed to include such ADS Registration
Statement.
The Underwriters have agreed to reserve a portion of the
Shares (in the form of Shares or ADSs) to be purchased under this Agreement for
sale to persons who are associated with the Company or its affiliates
(collectively, "PARTICIPANTS"), as set forth in the Prospectus under the heading
"Underwriters." The reservation of the shares for sale to the Participants is
referred to in this Agreement as the "DIRECTED SHARE PROGRAM". The Shares (in
the form of Shares or ADSs) to be sold pursuant to the Directed Share Program
are referred to hereinafter as the "DIRECTED SHARES." Any Directed Shares not
orally confirmed for purchase by any Participants by the end of the business day
on which this Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus.
The Board of Directors of the Company is authorized pursuant
to Article 5 of the articles of association of the Company (the "ARTICLES OF
ASSOCIATION") to increase the share capital of the Company within five years
from May 28, 1999 through the issuance of additional shares so that the total
share capital of the Company would be 55,000,000 shares, or $110,000,000 (the
"AUTHORIZED CAPITAL").
It is contemplated that the Board of Directors, or a duly
authorized committee thereof, by a resolution to be dated the date hereof, will
determine to increase the share capital of the Company with respect to the Firm
Shares, by $15,000,000, and issue 7,500,000 shares of common stock par value $2
per share with full dividend entitlement for the fiscal year 2000, which shares
shall be subscribed for by MSIL, on behalf of the other Underwriters, at a
subscription price of $2 per Firm Share (the "SUBSCRIPTION PRICE") pursuant to
the terms and conditions of this Agreement. It is further contemplated that the
Board of Directors, or a duly authorized committee thereof, by a resolution to
be dated on any Option Closing Date (as defined below), will determine to
increase the share capital of the Company with respect to the Additional Shares
to be sold by Company, by the aggregate Subscription Price for such Additional
Shares and issue such Additional Shares with full dividend entitlement for the
fiscal year 2000, which shares shall be subscribed for out of the aggregate
Share Offer Price of such Shares on the Option Closing Date pursuant to the
terms and conditions of this Agreement.
1. REPRESENTATIONS AND WARRANTIES.
(I) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) At or before the time of the execution of the
Pricing Agreement, the Registration Statement shall have become
effective; no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission.
(b) (i) The Registration Statement, on the date
hereof and when it becomes effective, and as amended or supplemented,
if applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the U.S. Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (iii) the German Prospectus complies and, as
amended or supplemented, if applicable, will comply in all material
respects with all applicable laws of Germany and all applicable rules
and regulations of any competent German government, regulatory or stock
exchange authority, (iv) neither the U.S. Prospectus nor the
International Prospectus contains or, as amended or supplemented, if
applicable, will contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and (v) the German Prospectus does not contain an untrue
statement of, or omit to state, a fact which is material for the
assessment of an investment in the shares (UNRICHTIGE ODER
UNVOLLSTANDIGE ANGABEN, WELCHE FUR DIE BEURTEILUNG DER WERTPAPIERE
WESENTLICH SIND), all within the meaning of Section 13 of the German
Securities Sales Prospectus Act and Section 45 of the German Stock
Exchange Act, except that the representations and warranties set forth
in this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Global Coordinators expressly for use therein.
(c) The Company has been duly incorporated, is
validly existing as a societe anonyme under the laws of Luxembourg, has
the corporate power and authority to own its property and to conduct
its business as described in the Prospectus and is duly qualified to
transact business and is in good standing, if applicable, in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing, if
applicable, would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly
incorporated, organized or formed, as applicable, is validly existing
and, if applicable, in good
standing under the laws of the jurisdiction of its incorporation or
organization, has the corporate or company power and authority to own
its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and, if applicable, is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing, if applicable, would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole; all of the issued
capital stock or membership interests of each subsidiary of the Company
has been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed
and delivered by the Company.
(f) The Deposit Agreement has been duly authorized,
and when executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Depositary, will be a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, liquidation, "GESTION CONTROLEE," "SURSIS DE
PAIEMENT," "CONCORDAT" or similar laws affecting creditors' rights
generally and general principles of equity and (ii) the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Pricing Agreement has been duly authorized by
the Company and, when executed and delivered by the Company and
assuming due authorization, execution and delivery by the other parties
thereto, will be a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject
to (i) applicable bankruptcy, insolvency, liquidation, "GESTION
CONTROLEE," "SURSIS DE PAIEMENT," "CONCORDAT" or similar laws affecting
creditors' rights generally and general principles of equity and (ii)
the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) Upon valid issuance by the Depositary of ADRs
evidencing ADSs against the deposit of Shares in respect thereof in
accordance with the Deposit Agreement and upon payment by the
Underwriters for the ADSs evidenced thereby, such ADSs will be duly and
validly issued and persons in whose names such ADRs are registered will
be entitled to the rights specified therein and in the Deposit
Agreement; and the Deposit Agreement, the ADSs and the ADRs conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(i) The authorized capital stock of the Company
conforms as to legal matters to the description thereof contained in
the Prospectus and, except as described
in the Prospectus or as otherwise advised to the Underwriters in
writing with respect to securities issued after the date of the
Prospectus, there are no outstanding securities convertible into, or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, any shares of capital
stock or any securities that share in the net profits of the Company or
are entitled to any proceeds upon liquidation of the Company.
(j) The shares of common stock (including the Shares
to be sold by Carrier One LLC) outstanding prior to the subscription of
the Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable.
(k) The Shares to be sold by the Company and the
Warrantholders have been duly authorized and, when issued and delivered
against receipt of payment therefor in accordance with this Agreement,
will be, validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or
similar rights; the Company has duly authorized the deposit of Shares
to be deposited with the Depositary against issuance of ADRs evidencing
ADSs; and, upon payment therefor on the Closing Date, the Shares and
the ADSs will be free from any restriction on transfer or subsequent
transfer, except as described in the Prospectus or in this Agreement.
(l) The execution and delivery by the Company of, and
the performance by the Company of its obligations under, this
Agreement, the Pricing Agreement and the Deposit Agreement, the deposit
of Shares with the Depositary against the issuance of ADRs evidencing
ADSs to be delivered pursuant to this Agreement and the issuance and
delivery of the Shares pursuant to this Agreement, will not contravene
any provision of applicable law (except as would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole or
except in so far as indemnity and contribution is limited by applicable
law or public policy) or the Articles of Association of the Company or
any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Pricing Agreement or the Deposit Agreement, to effect dividend payments
on any Shares or for the Depositary to convert such payments, if made
other than in U.S. dollars, to U.S. dollars for distribution to holders
of ADSs, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Shares and the ADSs and other than those already obtained from the
Frankfurt Stock Exchange and the Nasdaq Stock Market and under the
securities laws of The Netherlands, the Securities Act and the
Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and those as may
be required for the listing of the Company's Share Capital on the Neuer
Markt segment of the Frankfurt Stock Exchange, assuming compliance by
the Underwriters with the provisions of Section 9(ii) hereof.
(m) This Agreement, the Pricing Agreement and the
Deposit Agreement, and any other document required to be furnished
hereunder or thereunder, is in proper legal form under the laws of
Luxembourg for the enforcement thereof against the Company in
Luxembourg without further action on the part of the Underwriters
(except that if any such document were to be exhibited before a
Luxembourg court or a Luxembourg public authority ("AUTORITE
CONSTITUEE"), registration thereof may be ordered, in which case a
registration duty would become payable and a translation thereof into
French or German may need to be produced); and to ensure the validity,
enforceability or admissibility in evidence in Luxembourg of this
Agreement, the Pricing Agreement, the Deposit Agreement or any other
document required to be furnished hereunder or thereunder, it is not
necessary that this Agreement, the Pricing Agreement, the Deposit
Agreement or such related document be submitted to, filed, recorded, or
registered with any court or other authority in Luxembourg or that any
tax, imposition or charge be paid on or in respect of this Agreement,
the Pricing Agreement, the Deposit Agreement or such related document
with respect to the institution of any judicial proceeding to enforce
this Agreement, the Pricing Agreement or the Deposit Agreement in
Luxembourg or in order to be able to enforce a foreign judgment with
respect thereto in Luxembourg (except that if any such document were to
be exhibited before a Luxembourg court or a Luxembourg public authority
("AUTORITE CONSTITUEE"), registration thereof may be ordered, in which
case a registration duty would become payable and a translation thereof
into French or German may need to be produced).
(n) There has not occurred any material adverse
change, or any development involving a prospective material adverse
change, in the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus as in effect on the date
hereof (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement).
(o) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its subsidiaries
is a party or to which any of the properties of the Company or any of
its subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(p) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(q) The Company is not and, after giving effect to
the offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(r) The Company and its subsidiaries (i) are in
compliance with any and all applicable Luxembourg, foreign and U.S.
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(s) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for cleanup, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(t) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
as in effect on the date hereof, (i) the Company and its subsidiaries
have not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company and its subsidiaries, except in each case as described
in the Prospectus as in effect on the date hereof.
(u) The Company and its subsidiaries have good and
marketable title
in fee simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries, in each case except as
described in the Prospectus.
(v) No material labor dispute with the employees of
the Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent, except as described in the Prospectus; and
the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that would reasonably be expected to have
a material adverse effect on the Company and its subsidiaries, taken as
a whole.
(w) The Company and its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any of
its subsidiaries has been refused any insurance coverage applied for;
and neither the Company nor any of its subsidiaries has any reason to
believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, except as described in
the Prospectus.
(x) Except as set forth in the Prospectus, each of
the Company and its subsidiaries (i) have paid all fees required by any
Luxembourg, U.S. and foreign national, regional or local governmental
authorities, all self-regulatory organizations and all courts and
tribunals and (ii) have all necessary permits, licenses,
authorizations, consents, orders, certificates and approvals of and
from, and has made all necessary declarations and filings and has paid
all required fees with, all applicable Luxembourg, U.S. federal, state
and local, foreign and supranational governmental, administrative and
regulatory authorities, self-regulatory organizations and courts and
other tribunals to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the
Prospectus, except in each case under this paragraph (y) to the extent
that the failure to pay such fees or to obtain such permits, licenses,
authorizations, consents, orders, certificates or approvals or to make
such declarations or filings would not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the Company
and its subsidiaries taken as a whole; neither the Company nor its
subsidiaries has received any notice of proceedings which remain
unresolved relating to revocation or modification of any such permits,
licenses, authorizations, consents, orders, certificates or approvals,
nor is the Company or its subsidiaries in violation of, or in default
under, any such permits, licenses, authorizations, consents, orders,
certificates or approvals which proceedings, violations and defaults,
singly or in the aggregate, would reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(y) The Company and each of its subsidiaries maintain
a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(z) Except as described in the Prospectus, no
Luxembourg stamp or other issuance or transfer taxes or duties or
capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters in Luxembourg or any political subdivision
or taxing authority thereof or therein in connection with the deposit
with the Depositary or its nominee of Shares by the Company against the
issuance of the ADRs evidencing ADSs, the purchase by the Underwriters
of the Shares (including Shares in the form of ADSs), the sale and
delivery by the Underwriters of the Shares or ADSs, the execution and
delivery of this Agreement, the Pricing Agreement and the Deposit
Agreement, or the consummation of the transactions contemplated hereby
and thereby, save that registration may be ordered and a registration
duty might become payable if this Agreement, the Pricing Agreement or
the Deposit Agreement were to be exhibited before a Luxembourg court or
a Luxembourg official authority (AUTORITE CONSTITUEE); although, in
practice, such registration is rarely ordered.
(aa) The Company and its obligations under this
Agreement, the Pricing Agreement and the Deposit Agreement are or will
be subject to civil and commercial law and to suit and neither the
Company nor any of its properties, assets or revenues has any right of
immunity under Luxembourg, U.S. federal or New York law from any legal
action, suit or proceeding, from the giving of any relief in any such
legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any Luxembourg, New York or U.S. federal court, from
service of process, attachment upon or prior to judgment, or attachment
in aid of execution of judgment, or from execution of a judgment, or
other legal process or proceeding for the giving of any relief or for
the enforcement of a judgment, in any such court, with respect to its
obligations, liabilities or any other matter under or arising out of or
in connection with this Agreement, the Pricing Agreement or the Deposit
Agreement; and, to the extent
that the Company or any of its properties, assets or revenues may have
or may hereafter become entitled to any such right of immunity in any
such court in which proceedings may at any time be commenced, to the
extent permitted by law the Company has waived or will waive such right
and has consented or will consent to such relief and enforcement as
provided in Section 15 of this Agreement, in Article 4 of the Pricing
Agreement and in Section 706 of the Deposit Agreement.
(bb) The Company has the power to submit, and
pursuant to this Agreement, the Pricing Agreement and the Deposit
Agreement, has or will have legally, validly, effectively and
irrevocably submitted, to the personal jurisdiction of any federal or
state court in the State of New York, Borough of Manhattan, The City of
New York, and has the power to designate, appoint and empower, and
pursuant to this Agreement, the Pricing Agreement and the Deposit
Agreement, has or will have legally, validly and effectively
designated, appointed and empowered, an agent for service of process in
any suit or proceeding based on or arising under this Agreement, the
Pricing Agreement and the Deposit Agreement in any federal or state
court in the State of New York, Borough of Manhattan, The City of New
York, as provided in Section 15 of this Agreement, in Article 4 of the
Pricing Agreement and in Section 706 of the Deposit Agreement.
(cc) The financial statements contained in the U.S.
Prospectus comply as to form in all material respects with the
accounting requirements of the Securities Act and the related published
rules and regulations.
(dd) Any final judgment for a fixed or readily
calculable sum of money rendered by any court of the State of New York
or of the United States located in the State of New York having
jurisdiction under its own domestic laws in respect of any suit, action
or proceeding against the Company based upon this Agreement, the
Pricing Agreement or the Deposit Agreement would be declared
enforceable against the Company by the courts of Luxembourg without
reexamination, review of the merits of the cause of action in respect
of which the original judgment was given or relitigation of the matters
adjudicated upon or payment of any stamp, registration, or similar tax
or duty, save that registration may be ordered and a registration duty
might become payable if this Agreement, the Pricing Agreement or the
Deposit Agreement were to be exhibited before a Luxembourg court or a
Luxembourg official authority (AUTORITE CONSTITUEE); although, in
practice, such registration is rarely ordered. The Company is not aware
of any reason why the enforcement in Luxembourg of such a judgment in
respect of this Agreement, the Pricing Agreement or the Deposit
Agreement would be contrary to public policy in Luxembourg or any
political subdivision thereof.
(ee) The choice of laws of the State of New York as
the governing law of this Agreement, the Pricing Agreement and the
Deposit Agreement is a valid and effective choice of law and in an
action brought before a court of competent
jurisdiction in Luxembourg, the laws of the State of New York would be
recognized and applied by such court.
(ff) Based upon its current and anticipated
composition of income and assets, and its activities (assuming
consummation of the offering pursuant to the Prospectus and the use of
the net proceeds therefrom as contemplated under the caption entitled
"Use of Proceeds" in the Prospectus), the Company does not expect as of
the date hereof to be with respect to 2000, and does not expect to
become thereafter, a passive foreign investment company as defined in
Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the
"CODE") or a "foreign personal holding company" within the meaning of
Section 552 of the Code.
(gg) The Company did not face any material Year 2000
Problem (that is, the computer hardware and software applications used
by the Company and its subsidiaries have functioned after December 31,
1999 at least as effectively as they did on or before such date); as a
result of a review of its operations to evaluate the extent to which
the business or operations of the Company will be effected by the Year
2000 Problem, the Company (i) has no reason to believe, and does not
believe, that (1) there are any issues related to the Year 2000 Problem
that are of a character required to be described in the Registration
Statement or the Prospectus which have not been accurately described in
the Registration Statement or Prospectus and (2) the Year 2000 Problem
will have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, or result in any material loss
or interference with the business or operations of the Company and its
subsidiaries, taken as a whole; and (ii) reasonably believes, after due
inquiry, that the suppliers, vendors, customers or other material third
parties used or served by the Company and such subsidiaries have
addressed the Year 2000 Problem, except to the extent that a failure to
address the Year 2000 Problem by any supplier, vendor, customer or
material third party would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(hh) Except as described in the Prospectus, there are
no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Shares registered pursuant to the Registration
Statement other than rights which have been waived.
(ii) The Registration Statement, the Prospectus and
any preliminary prospectus comply, and any amendments or supplements
thereto will comply, in all material respects with any applicable laws
or regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, assuming
compliance by the Underwriters with the provisions of Section 9(ii)
hereof.
(jj) No consent, approval, authorization or order of,
or qualification with, any governmental body or agency, other than
those which have been obtained or will be obtained prior to the Closing
Date, is required in connection with the offering of the Directed
Shares in any jurisdiction where the Directed Shares are being offered,
assuming compliance by the Underwriters with the provisions of Section
9(ii) hereof.
(kk) The Company (1) has not offered or sold and will
not offer or sell, directly or indirectly, any Shares to the public in
France, and (2) offers and sale of Shares in France will be made in
accordance with Article 6 of the Ordinance n*.67-833 dated September
28, 1967, as amended, and Decree n*.98-880 dated October 1, 1998
relating to offers to a limited number of investors and/or qualified
investors. In addition, the Company will not distribute or cause to be
distributed in France the Prospectus, any preliminary prospectus or any
offering material relating to the Shares other than to investors to
whom offers and sales of Shares in France may be made as described
above, assuming compliance by the Underwriters with the provisions of
Section 9(ii) hereof.
(ll) The Company has not offered, or caused MSIL or
any of its affiliates to offer, Shares to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence
(i) a customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company, or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
(mm) C1 Indirect Millennium Sub LLC has been duly
organized, is validly existing and in good standing under the laws of
Delaware and has the power and authority to own its property. C1
Indirect Millennium Sub LLC has duly authorized the purchase of the New
Firm Shares under Section 8 of this Agreement in the event this
Agreement is terminated in accordance with its terms. The performance
by C1 Indirect Millennium Sub LLC of its obligations under Section 8 of
this Agreement will not contravene any provision of applicable law or
the Articles of Association of the Company, the limited liability
company agreement or other organizational documents of C1 Indirect
Millennium Sub LLC or any agreement or other instrument binding upon
the Company or any of its subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over the Company or any subsidiary, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the purchase of the New Firm Shares by C1
Indirect Millennium Sub LLC under Section 8 of this Agreement.
(II) REPRESENTATIONS AND WARRANTIES OF THE SELLING
SHAREHOLDERS. Each Selling
Shareholder represents and warrants to and agrees with each of the Underwriters
that:
(a) This Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Shareholder.
(b) The Pricing Agreement has been duly authorized by
such Selling Shareholder and, when executed and delivered, will be a
valid and binding agreement of such Selling Shareholder, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and general
principles of equity.
(c) If such Selling Shareholder is a Warrantholder,
the execution and delivery by such Warrantholder of, and the
performance by such Warrantholder of its obligations under, this
Agreement, the Pricing Agreement and its Irrevocable Power of Attorney
and Custody Agreement (each, a "POWER OF ATTORNEY AND CUSTODY
AGREEMENT"), effective as of February 18, 2000 and signed by such
Warrantholder and The Chase Manhattan Bank as Custodian (the
"CUSTODIAN"), will not contravene any provision of applicable law
(except in so far as indemnity and contribution is limited by
applicable law and public policy), or any certificate of incorporation,
bylaws or other equivalent organizational documents of such
Warrantholder, or any agreement or other instrument binding upon such
Warrantholder that is material to such Warrantholder or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over such Warrantholder, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is required for the performance by such Warrantholder of its
obligations under this Agreement, the Pricing Agreement or the Power of
Attorney and Custody Agreement of such Warrantholder, except such as
may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Shares and the ADSs
and other than those already obtained from the Frankfurt Stock Exchange
and the Nasdaq Stock Market, and under the securities laws of The
Netherlands, the Securities Act, the Exchange Act and those as may be
required for the listing of the Company's Share Capital on the Neuer
Markt segment of the Frankfurt Stock Exchange.
(d) In the case of Carrier One LLC, the execution and
delivery by Carrier One LLC of, and the performance by Carrier One LLC
of its obligations under, this Agreement and the Pricing Agreement will
not contravene any provision of applicable law (except in so far as
indemnity and contribution is limited by applicable law and public
policy), or any certificate of formation, bylaws, limited liability
company agreement or other equivalent organizational documents of
Carrier One LLC, or any agreement or other instrument binding upon
Carrier One LLC that is material to Carrier One LLC or any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over Carrier One LLC, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency is
required for the performance by Carrier One LLC of its obligations
under this Agreement and the Pricing Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and the ADSs and other
than those already obtained from the Frankfurt Stock Exchange and the
Nasdaq Stock Market, and under the securities laws of The Netherlands,
the Securities Act, the Exchange Act and those as may be required for
the listing of the Company's Share Capital on the Neuer Markt segment
of the Frankfurt Stock Exchange.
(e) If such Selling Shareholder is a Warrantholder,
such Warrantholder has placed in custody under its Power of Attorney
and Custody Agreement a number of Warrants that will become
exercisable, in connection with the Offering, into the Shares to be
delivered and sold by such Selling Shareholder under this Agreement.
(f) If such Selling Shareholder is a Warrantholder,
such Warrantholder has valid title to the Warrants each entitling the
holder thereof to purchase the number of shares specified therein; such
Warrantholder, immediately prior to the time the Shares to be sold by
it are delivered to the Underwriters, will have valid title to the
Shares to be sold by such Selling Shareholder and each Selling
Shareholder has the legal right and power, and all authorization and
approval required by law, to enter into this Agreement, the Pricing
Agreement and the Power of Attorney and Custody Agreement of such
Selling Shareholder and to sell, transfer and deliver the Shares to be
sold by such Selling Shareholder and such Shares will be duly
authorized, validly issued, fully paid and non-assessable.
(g) Carrier One LLC has valid title to the Shares to
be sold by it and has the legal right and power, and all authorization
and approval required by law, to enter into this Agreement and the
Pricing Agreement and to sell, transfer and deliver the Shares to be
sold by it and such Shares are duly authorized, validly issued, fully
paid and non-assessable.
(h) If such Selling Shareholder is a Warrantholder,
the Power of Attorney and Custody Agreement of such Warrantholder has
been duly authorized, executed and delivered by such Warrantholder and
is a valid and binding agreement of such Warrantholder, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and general
principles of equity.
(i) Delivery of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement and the Pricing Agreement will
pass title to such Shares free and clear of any security interests,
claims, liens, equities and other encumbrances.
(j) The Selling Shareholder has not taken and will
not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(k) If such Selling Shareholder is a Warrantholder,
the information provided by the Warrantholder in the Instruction and
Request was true and correct as of the date on which it was made, and
as of the date hereof. The Warrantholder consents to the disclosure of
the information provided by it to the extent advisable in connection
with the Offering, including the use of such information by the
registered holder of the Warrants and the Custodian, and the registered
holder and the Custodian shall be deemed to be third-party
beneficiaries of this provision. Except as disclosed in the prospectus,
within the past three years the Warrantholder has held no position or
office or had any other material relationship with the Company.
(l) (i) The Registration Statement, on the date
hereof and when it becomes effective, will not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement and the U.S. Prospectus
comply and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iii) the German
Prospectus complies and, as amended or supplemented, if applicable,
will comply in all material respects with all applicable laws of
Germany and all applicable rules and regulations of any competent
German government, regulatory or stock exchange authority, (iv) neither
the U.S. Prospectus nor the International Prospectus contains or, as
amended or supplemented, if applicable, will contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (v) the German Prospectus
does not contain an untrue statement of, or omit to state, a fact which
is material for the assessment of an investment in the shares
(UNRICHTIGE ODER UNVOLLSTANDIGE ANGABEN, WELCHE FUR DIE BEURTEILUNG DER
WERTPAPIERE WESENTLICH SIND), all within the meaning of Section 13 of
the German Securities Sales Prospectus Act and Section 45 of the German
Stock Exchange Act, except that the representations and warranties set
forth in this paragraph 1(II)(l) apply only to statements or omissions
in the Registration Statement or the Prospectus based upon information
relating to the Selling Shareholder or any shareholder, general partner
or limited partner or member of the Selling Shareholder, as the case
may be, or any other person holding a direct or indirect equity
interest in the Selling Shareholder and furnished to the Company or the
Custodian in writing by such Selling Shareholder, in the case of each
Warrantholder, for use therein and, in the case of Carrier One LLC,
specifically for use therein.
2. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and
not jointly,
hereby agrees to sell to the several Underwriters, and each Underwriter, upon
the basis of the representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from such Seller at the Share Offer Price (as defined below) the number
of Firm Shares (subject to such adjustments to eliminate fractional shares as
the Global Coordinators may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule I hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, the Company and each
of the Selling Shareholders agrees to sell to the several Underwriters the
Additional Shares, and the Underwriters shall have a one-time right to purchase,
severally and not jointly, up to an aggregate of 1,406,250 Additional Shares at
the Share Offer Price. If MSIL, after consultation with SBIL, elects to exercise
such option on behalf of the Underwriters, MSIL shall so notify the Company and
the Selling Shareholders in writing not later than 30 days after the Closing
Date, which notice shall specify the number of Additional Shares to be purchased
by the Underwriters and the date on which such shares are to be purchased (the
"OPTION CLOSING DATE"). Such date may be the same as the Closing Date but not
earlier than the Closing Date nor later than ten business days after the date of
such notice. Additional Shares may be purchased as provided in Section 5 hereof
solely for the purpose of covering overallotments made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase (a) first the number
of Additional Shares to be purchased from the Company (subject to such
adjustments to eliminate fractional shares as the Global Coordinators may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased from the Company as the number of Firm Shares set forth
in Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares, and (b) then the number of remaining Additional Shares to
be purchased from the Selling Shareholders (subject to such adjustments to
eliminate fractional shares as the Global Coordinators may determine) that bears
the same proportion to the total number of remaining Additional Shares to be
purchased from the Selling Shareholders as the number of Firm Shares set forth
in Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
Each Seller hereby agrees that, without the prior written
consent of the Global Coordinators on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, (i) offer to
sell, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of its common stock or any securities convertible into or exercisable or
exchangeable for its common stock or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of its common stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of
shares of common stock or other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Shares to be sold hereunder, (B)
the issuance by the Company of shares of its common stock upon the exercise of
an option or warrant or the conversion of a security outstanding on the date
hereof of which the Underwriters have been advised in writing, (C) transactions
by any person other than the Company relating to shares of common stock or other
securities acquired in open market transactions after the completion of the
offering of the Shares, (D) transfers of shares of common stock or other
securities by any person other than the Company to the Company or any of its
subsidiaries pursuant to any purchase rights under the Company's share purchase
and share option plans, (E) the issuance by the Company of shares of its common
stock to employees of the Company or its subsidiaries, or to subsidiaries of the
Company, pursuant to its existing share purchase plans described in the
Prospectus and (F) the grant of options to purchase shares of its common stock
pursuant to its share option plan. In addition, each Selling Shareholder, agrees
that, without the prior written consent of the Global Coordinators on behalf of
the Underwriters, it will not, during the period ending 180 days after the date
of the Prospectus, make any demand for, or exercise any right with respect to,
the registration of any shares of common stock or any security convertible into
or exercisable or exchangeable for common stock, which consent is hereby given
for any action taken in connection with its rights and obligations under the
warrants registration rights agreement among the Company and The Chase Manhattan
Bank, as Warrant Agent.
Notwithstanding the foregoing, in connection with transfers by
any Selling Shareholder, (A)(i) gifts and transfers by will or intestacy or (ii)
transfers to (A) the Selling Shareholder's members, partners, affiliates or
immediate family or (B) a trust, the beneficiaries of which are the Selling
Shareholder and/or members of the Selling Shareholder's immediate family, shall
not be prohibited by this agreement; PROVIDED that (x) the donee or transferee
agrees in writing to be bound by the foregoing in the same manner as it applies
to the Selling Shareholder and (y) if the donor or transferor is a reporting
person subject to Section 16(a) of the Securities Exchange Act of 1934 (the
"EXCHANGE ACT"), any gifts or transfers made in accordance with this paragraph
shall not require such person to, and such person shall not voluntarily, file a
report of such transaction of Form 4 under the Exchange Act. "Immediate family"
shall mean spouse, lineal descendants, father, mother, brother or sister of the
transferor and father, mother, brother or sister of the transferor's spouse.
With respect to all or any portion of the shares to be
acquired for offer and sale in the United States or Canada to United States or
Canadian Persons, the Underwriters may elect to have Shares in the form of ADSs
delivered by the Company through the Depositary and to pay the ADS Offer Price
(as defined below) therefor, in lieu of and in satisfaction of the Company's
obligation to deliver such Shares and the obligation of such Underwriters to pay
the Share Offer Price for such Shares. Notice of such election shall be given by
the Global Coordinators by 12:00 p.m. Frankfurt time, one business day prior to
the Closing Date or the Option Closing Date, as the case may be (the
"NOTIFICATION TIME").
3. TERMS OF OFFERINGS. The Sellers are advised by you that the
Underwriters propose to make a public offering in Germany and the United States
and private placements outside Germany and the United States of their respective
portions of the Shares and the ADSs as soon after the Registration Statement has
become effective (and, with respect to the public offering in Germany, after the
availability of the UNVOLLSTANDIGER VERKAUFSPROSPEKT has been published) as in
your judgment is advisable. The price at which the Shares are to be initially
offered (the "SHARE OFFER PRICE"), and the price at which the ADSs are to be
initially offered (the "ADS OFFER PRICE") will be determined in accordance with
the terms of the Pricing Agreement as mutually agreed by the parties thereto. In
addition, the Sellers are advised by you that the Shares are to be offered to
certain dealers selected by you at a price that represents a concession under
the Share Offer Price or ADS Offer Price, to any Underwriter or to certain other
dealers, and that any Underwriter may allow, and such dealers may reallow, a
concession, each as set forth in the Pricing Agreement. The Company shall also
pay to the Global Coordinators on behalf of the German listing consortium
(BORSENEINFUHRUNGSKONSORTIUM) a listing fee (BORSENEINFUHRUNGSPROVISION) of 1%
of the entire nominal share capital which is to be admitted for trading to the
Frankfurt Stock Exchange, Neuer Markt segment. Any Spread (as defined below) as
well as the listing fee, not otherwise deducted from the aggregate Share Offer
Price or ADS Offer Price to be paid to the Company or any Selling Shareholders,
shall be paid by the Company or by the Selling Shareholders, on a pro rata basis
in proportion to the number of Shares being sold by each Selling Shareholder,
upon demand to the Global Coordinators.
4. SUBSCRIPTION FOR NEW FIRM SHARES. (a) In accordance with
the provisions of this Section 4, MSIL shall (i) subscribe for 7,500,000 Firm
Shares to be issued by the Company on the date hereof (the "NEW FIRM SHARES") at
the Subscription Price and (ii) pay to the Company the Subscription Price for
each of the subscribed New Firm Shares for the purpose of effecting the capital
increase on the date hereof.
(b) For the purpose of effecting the capital increase
and the issuance of such New Firm Shares, the Underwriters authorize
MSIL to subscribe for New Firm Shares to be allocated to such
Underwriters, together with New Firm Shares to be allocated to MSIL for
its own account, at the Subscription Price per New Firm Share pursuant
to the conditions below, and to make available to the Company the full
amount of the Subscription Price for the New Firm Shares as specified
above. MSIL shall act in its own name and on its own account with
respect to that number of New Firm Shares to be issued by the Company
set forth across from the name of MSIL on Schedule I attached hereto,
and, to the extent that MSIL subscribes for New Firm Shares on behalf
of the other Underwriters, MSIL shall not act in its own name but in
its capacity as agent of the other Underwriters. MSIL shall not be
liable for the performance of the obligations of the other
Underwriters.
(c) MSIL shall subscribe for the number of New Firm
Shares set forth above by delivering to the Company a subscription
certificate substantially in the
form as set out in Annex B ("SUBSCRIPTION CERTIFICATE") simultaneously
with the execution of this Agreement. The Subscription Certificate will
expire, in accordance with its terms, on the date of this Agreement,
11:00 a.m. Frankfurt time in the event that the increase of the
Company's capital represented by the New Firm Shares, as evidenced by a
certified copy of resolutions (the "RESOLUTIONS") of the Board of
Directors of the Company or a duly authorized committee thereof
authorizing such capital increase, has not been effected before that
time. For value on the date hereof, MSIL shall simultaneously effect
payment of the aggregate Subscription Price of the New Firm Shares for
which it has subscribed to a special account at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated (the "CAPITAL INCREASE ACCOUNT"), such account to be
non-interest bearing and free of charges.
(d) If the increase of the Company's share capital in
an amount equal to the aggregate par value of the New Firm Shares has
not been duly authorized by 11:00 a.m. Frankfurt time, on the date of
this Agreement, the Subscription Certificate for the New Firm Shares
shall expire and the Company hereby authorizes MSIL to immediately
transfer, in same day funds, the aggregate Subscription Price from the
Capital Increase Account to an account specified by MSIL. In such
event, MSIL and the Company may agree that MSIL shall submit a new
Subscription Certificate for the New Firm Shares subscribed pursuant to
Section 4 (to expire in accordance with its terms on a date to be
determined by MSIL) and effect a new credit for the aggregate
Subscription Price for such New Firm Shares to the Capital Increase
Account. If MSIL and the Company have not agreed on the submission of a
new Subscription Certificate for such New Firm Shares on or prior to
the second day following the date of the Agreement, all obligations of
MSIL to subscribe for, and all obligations of the Underwriters to
purchase, the New Firm Shares shall terminate.
(e) Upon passing by the Company of the Resolutions,
the Company will deliver the Global Share Certificates to MSIL who will
deliver the Global Share Certificates to Clearstream Banking AG,
Frankfurt am Main ("CLEARSTREAM, FRANKFURT").
(f) Notwithstanding any other provision in this
Agreement relating to the subscription for Firm Shares, Firm Shares may
be subscribed for by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated in full satisfaction of the obligation of MSIL to
subscribe for such Firm Shares. If and to the extent that Firm Shares
have been subscribed for by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, each reference in this Agreement to MSIL in its
capacity as subscriber for such Firm Shares shall constitute a
reference to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, as applicable.
5. PAYMENT AND DELIVERY. (a) (i) MSIL shall surrender the New
Firm Shares subscribed for and received on behalf of the Underwriters (other
than MSIL) against payment of the Share Offer Price or, in the case of shares to
be delivered in the form of ADSs,
the ADS Offer Price, to an account to be specified by MSIL. Except as otherwise
provided for in the Agreement Among Underwriters dated the date hereof among the
Global Coordinators and the other Underwriters (the "AGREEMENT AMONG
UNDERWRITERS"), each of the Underwriters (except for MSIL) shall accept from
MSIL (and MSIL shall retain) the New Firm Shares sold by the Company up to the
number set forth in Schedule I opposite the name of such Underwriter.
(ii) Subject to receipt by MSIL of such
amounts from the several Underwriters, MSIL shall cause
payment to the Company on behalf of the several Underwriters
in satisfaction of their obligation to purchase the New Firm
Shares or Additional Shares to be sold by the Company
hereunder, of an amount equal to the aggregate number of such
Firm Shares or Additional Shares sold by the Company hereunder
multiplied by the Share Offer Price or, in the case of any
Shares to be delivered in the form of ADSs, the aggregate
number of such ADSs multiplied by the ADS Offer Price, less
the aggregate Subscription Price for such Firm Shares and the
aggregate amount of the gross spread, as set forth in the
Pricing Agreement (the "SPREAD"), in respect of such Firm
Shares or Additional Shares. Any such payment shall be made on
[__________], 2000, or on such other date as shall be agreed
by the Company and the Global Coordinators (the date of such
payment hereinafter being referred to as the "CLOSING DATE")
or the Option Closing Date, as the case may be, in immediately
available funds, to the Capital Increase Account, with respect
to the Shares delivered to purchasers in the form of Shares,
in Euro and, with respect to Shares delivered in the form of
ADSs, in U.S. dollars.
(iii) In the absence of instruction by the
Company to the contrary, MSIL shall promptly thereafter
transfer the complete balance in the Capital Increase Account
to an account of the Company at [Name of Company Bank].
(b) (i) Subject to receipt by MSIL of such amounts
from the other Underwriters, MSIL shall cause payment to the Custodian
on behalf of the Warrantholders on behalf of the several Underwriters
in satisfaction of their obligation to purchase the Firm Shares or
Additional Shares from the Warrantholders hereunder, of an amount equal
to the number of Firm Shares or Additional Shares multiplied by the
Share Offer Price or, in the case of any Shares to be delivered in the
form of ADSs, the aggregate number of such ADSs multiplied by the ADS
Offer Price less the aggregate Spread in respect of such Shares. Any
such payment shall be made on the Closing Date or the Option Closing
Date, as the case may be, in immediately available funds to the
Custodian on behalf of the Warrantholders as shall have been specified
in writing to the Global Coordinators not later than two business days
before the Closing Date or the Option Closing Date, as the case may be,
with respect to Shares delivered to purchasers in the form of Shares,
in Euro, and, with respect to Shares delivered in the form of ADSs,
in U.S. dollars.
(ii) Subject to receipt by MSIL of such
amounts from the other Underwriters, MSIL shall cause payment
to Carrier One LLC on behalf of the several Underwriters in
satisfaction of their obligation to purchase the Firm Shares
or Additional Shares from Carrier One LLC hereunder, of an
amount equal to the number of Firm Shares or Additional Shares
multiplied by the Share Offer Price or, in the case of any
Shares to be delivered in the form of ADSs, the aggregate
number of such ADSs multiplied by the ADS Offer Price less the
aggregate Spread in respect of such Shares. Any such payment
shall be made on the Closing Date or the Option Closing Date,
as the case may be, in immediately available funds to an
account or accounts of Carrier One LLC as shall have been
specified in writing to the Global Coordinators not later than
two business days before the Closing Date or the Option
Closing Date, as the case may be, with respect to Shares
delivered to purchasers in the form of Shares, in Euro, and,
with respect to Shares delivered in the form of ADSs, in U.S.
dollars.
(c) All Shares to be delivered pursuant to this
Agreement at the Closing Date or the Option Closing Date shall be
delivered to the several Underwriters, against payment of the Share
Offer Price, by MSIL or the Global Coordinators, as the case may be, by
book entry transfer in Clearstream, Frankfurt to (i) deposit accounts
at Clearstream Frankfurt as specified by the Global Coordinators, (ii)
an account specified by ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System and (iii) an
account specified by Clearstream Banking, societe anonyme
("CLEARSTREAM, LUXEMBOURG"), in each case, in such amount as the Global
Coordinators may designate.
(d) It is understood and agreed by the parties hereto
that no delivery of Shares or ADSs to be purchased and sold under this
Agreement at the Closing Date or at the Option Closing Date, as the
case may be, shall be effective until the Global Coordinators have been
furnished on the Closing Date or at the Option Closing Date, as the
case may be, with evidence reasonably satisfactory to the Global
Coordinators of the execution in favor of, or at the direction of, the
Underwriters of all book-entry transfers of Shares and ADSs to be made
in favor of, or at the direction of them on such date.
6. CONDITIONS TO MSIL'S OBLIGATION TO DELIVER A SUBSCRIPTION
CERTIFICATE FOR NEW FIRM SHARES. The obligation of MSIL to deliver a
Subscription Certificate for the New Firm Shares to be issued by the Company is
subject to the condition that, at and as of the time the Subscription
Certificate for such New Firm Shares are signed by MSIL and delivered to the
Company (the "SUBSCRIPTION TIME"):
(a) Subsequent to the signing of this Agreement and
prior to the
delivery of the Subscription Certificate, there shall not have occurred
(i) any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus as in effect at the date of this
Agreement (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement) that, in the judgment of
MSIL, after consultation with SBIL, is material and adverse and that
makes it, in its judgment, impracticable to market the Shares and ADSs
on the terms and in the manner contemplated in the Prospectus, and (ii)
any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in rating
accorded the Company or any of the Company's securities or in the
rating outlook for the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act.
(b) The Company shall have performed all of its
obligations hereunder theretofore to be performed.
(c) MSIL shall have received certified copies of the
Board of Directors' resolutions resolving to issue and sell the New
Firm Shares to be sold by the Company.
(d) MSIL shall have received an opinion of Bonn &
▇▇▇▇▇▇▇, Luxembourg counsel for the Company, dated the date hereof,
covering the matters described in ANNEX C.
(e) MSIL shall have received an opinion of Debevoise
& ▇▇▇▇▇▇▇▇, Special New York counsel for the Company, dated the date
hereof, covering the matters described in ANNEX D.
(f) MSIL shall have received an opinion of the
General Counsel of the Carrier1 International GmbH, a wholly-owned
subsidiary of the Company, dated the date hereof, covering the matters
described in ANNEX E.
(g) MSIL shall have received an opinion of Elvinger,
Hoss & Prussen, special Luxembourg counsel for the Underwriters, dated
the date hereof, covering the matters described in ANNEX F.
(h) MSIL shall have received the comfort letter,
dated the date of the UNVOLLSTANDIGER VERKAUFSPROSPEKT, referred to in
Section 7(i) hereof.
(i) None of the events specified in Section 13,
clauses (a)(i) through (a)(iv), shall have occurred.
7. CONDITIONS TO PAYMENT. The several obligations of the
Underwriters hereunder (except for the subscription and payment obligations
pursuant to Section 4 and Section 8 and the covenants in Section 9) shall be
subject to the conditions that prior to 9:00 a.m. Frankfurt time on the Closing
Date, unless otherwise specified below:
(a) (i) The Company shall have delivered to the
Global Coordinators in accordance with Section 4(e), duly executed
Global Share Certificates evidencing the New Firm Shares and a
certified copy of the Resolutions (ii) at or before the time the
Pricing Agreement is executed, (x) the Warrants shall have been
exercised and the underlying Shares shall have been issued by the
Company, as evidenced by certified resolutions of the Board of
Directors of the Company or a duly authorized committee thereof, a copy
of which has been provided to the Global Coordinators, authorizing an
increase in the Company's share capital in an amount equal to the
aggregate exercise price of the Warrants, which resolution may be
included with the Resolutions referred to above and (y) evidence that
such shares have been reflected in the Company's share registry, (iii)
the Warrantholders and the Company shall have delivered to the Global
Coordinators a Global Share Certificate evidencing the Firm Shares to
be sold by the Warrantholders, and (iv) Carrier One LLC and the Company
shall have delivered to the Global Coordinators a Global Share
Certificate evidencing the Firm Shares to be sold by Carrier One LLC,
which may be included in the Global Share Certificate delivered
pursuant to clause (i) above.
(b) At or before the time the Pricing Agreement is
executed, the Registration Statement shall have become effective.
(c) The Pricing Agreement shall have been duly
executed by the Company, the Selling Shareholders (including the
necessary approval of the Share Offer Price by the Company's Board of
Directors or a duly authorized committee thereof) and the Global
Coordinators on behalf of the Underwriters; prior to entering into the
Pricing Agreement the Global Coordinators shall have received the
certificates, letters and resolutions referred to in paragraphs (a),
(e), (h)(iii), (i), (k) and (n) of this Section in no event shall the
Global Coordinators be obliged to enter into the Pricing Agreement if
an event referred to in paragraph (d) below or Section 13, clauses a(i)
through a(iv) has occurred.
(d) Subsequent to the execution and delivery of this
Agreement and prior to the time of payment on the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of
the Company's securities
or in the rating outlook for the Company by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act; and
(ii) there shall not have occurred any
change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in the judgment of MSIL,
after consultation with SBIL, is material and adverse and that
makes it, in its judgment, impracticable to market the Shares
and ADSs on the terms and in the manner contemplated in the
Prospectus.
(e) The Underwriters shall have received both (i)
immediately prior to entering in to the Pricing Agreement and (ii) on
the Closing Date, a certificate dated the date of the Pricing Agreement
or the Closing Date, as the case may be, and signed by an executive
officer of the Company, to the effect set forth in Section 7(d)(i)
above and to the effect that the representations and warranties of the
Company contained in this Agreement and the Pricing Agreement are true
and correct as of such date and that the Company has complied with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(f) No stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or, to the knowledge of the Company or
the Underwriters, threatened by the Commission.
(g) The Underwriters shall have received on the
Closing Date (i) an opinion of Bonn & ▇▇▇▇▇▇▇, Luxembourg counsel to
the Company, substantially in the form set forth in EXHIBIT B, (ii) an
opinion of Debevoise & ▇▇▇▇▇▇▇▇, special New York counsel for the
Company, dated the Closing Date, to the effect set forth in EXHIBIT C,
(iii) an opinion of the General Counsel of the Carrier1 International
GmbH, a wholly-owned subsidiary of the Company, to the effect set forth
in EXHIBIT D, (iv) opinions of local counsel in Germany, the United
Kingdom, The Netherlands, France and Sweden to the effect set forth in
EXHIBIT E, (v) opinion or opinions of counsel for Carrier One LLC to
the effect set forth in EXHIBIT F and (vi) opinions of counsel for the
Selling Shareholders that have requested inclusion of more than 50,000
Shares, prior to any cutback, as shall be satisfactory to the Global
Coordinators, covering the applicable matters described in EXHIBIT I.
Such opinions shall be rendered to the Underwriters at
the request of the Company or one or more of the Selling Shareholders,
as the case may be, and shall so state therein.
(h) The Underwriters shall have received on the
Closing Date (i) an opinion of Shearman & Sterling, United States
counsel for the Underwriters, (ii) an opinion of ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
Lagae & ▇▇▇▇▇▇, Luxembourg counsel for the Underwriters, and (iii) an
opinion of Shearman & Sterling, German counsel for the Underwriters,
each dated the Closing Date, in form and substance reasonably
satisfactory to the Global Coordinators and (iv) an opinion of
Elvinger, Hoss & Prussen, special Luxembourg counsel to the
Underwriters, substantially in the form set forth in EXHIBIT G.
(i) The Underwriters shall have received, on each of
the date hereof, the date of the Pricing Agreement, and the Closing
Date, a letter dated the date of the UNVOLLSTANDIGER VERKAUFSPROSPEKT,
the date of the Pricing Agreement and the Closing Date, respectively,
in form and substance satisfactory to the Underwriters, from Deloitte &
Touche Experta AG, independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus; PROVIDED that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date of the Pricing Agreement.
(j) The Underwriters shall have receive on the
Closing Date an opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the
Depositary, dated the Closing Date, covering the matters described in
EXHIBIT H hereto.
(k) The "lock-up" agreements, each substantially in
the form of EXHIBIT A hereto, executed by the shareholders, officers
and directors of the Company listed on EXHIBIT A-2 hereto, relating to
sales and certain other dispositions of common stock or certain other
securities, shall have been delivered to you on or before the date
hereof.
(l) The ADSs shall have been approved for quotation
on the Nasdaq National Market, subject only to official notice of
issuance, and the then existing share capital of the Company shall have
been approved for listing on the Neuer Markt segment of the Frankfurt
Stock Exchange.
(m) The representations and warranties of each
Selling Shareholder contained in this Agreement and the Pricing
Agreement shall be true and correct as of the date of the Pricing
Agreement and the Closing Date and each Selling Shareholder
shall have complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or
before the Closing Date. The
Underwriters shall have received both (i) immediately prior to entering
into the Pricing Agreement and (ii) on the Closing Date, certificates
dated the Closing Date and signed by the Selling Shareholders or by
their attorneys-in-fact to the effect set forth above.
(n) You shall have received such other documents and
certificates as are reasonably requested by you or your counsel.
MSIL, after consultation with SBIL, may waive any of the
foregoing conditions in its discretion. If any of the foregoing conditions has
not occurred on the Closing Date and MSIL shall not have waived such condition
pursuant to the preceding sentence, MSIL, after consultation with SBIL, may
terminate this Agreement and the provisions set out in Section 8 shall apply.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the Global
Coordinators on the Option Closing Date of a Global Share Certificate evidencing
the Additional Shares to be sold by each of the Company and the Selling
Shareholders, or evidence otherwise satisfactory to the Global Coordinators that
such shares have been included in the Global Share Certificates referred to in
paragraph (a) above, and such documents as they may reasonably request in
connection with the issuance of the Additional Shares, which shall be in
substantially similar scope and substance to the documents delivered at the
Closing Date, including without limitation opinions of counsel.
8. CONSEQUENCES OF TERMINATION. If this Agreement has been
terminated for any reason after the delivery of the Subscription Certificate and
the passing by the Board of Directors of the Company of the Resolutions, then,
as soon as practicable but in any event within 30 days after the date of such
termination, the Company shall have the right to require that the Underwriters
sell such Firm Shares to the Company, a subsidiary of the Company or to a
purchaser designated in writing by the Company, and the Underwriters agree to
sell such Firm Shares to the Company, such subsidiary or such purchaser and
shall have the right to require the Company or C1 Indirect Millennium Sub LLC to
repurchase such New Firm Shares, at a price equal to the aggregate Subscription
Price paid for such shares plus (a) any financing costs incurred by the
Underwriters in connection with the funding of Capital Increase Account in the
period from subscription through the date of such sale and (b) expenses pursuant
to Section 10 below.
MSIL shall act in its own name and on its own account with
respect to that number of New Firm Shares subscribed by it set forth across from
the name of MSIL on Schedule I attached hereto, and, to the extent that MSIL
subscribes for New Firm Shares on behalf of the other Underwriters, MSIL shall
not act in its own name but in its capacity as agent of the other Underwriters.
MSIL shall not be liable for the performance of the obligations of the other
Underwriters.
9. COVENANTS. (i) In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, [seven] signed
copies of the Registration Statement (including exhibits thereto) and
for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish to you
in New York City, without charge, prior to 10:00 a.m. New York City
time on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 9(c) below, as many copies of
the Prospectus and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, (i) during such period after the first date
of the public offering of the Shares as in the reasonable opinion of
counsel for the Underwriters the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer or (ii)
at any time within six months following the completion of the offer and
sale of the Shares by the Underwriters, any event shall occur or
condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the reasonable opinion of counsel
for the Underwriters, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file
with the Commission and the Frankfurt Stock Exchange, publish and
furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Shares or ADSs may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and
sale under the U.S. state securities or Blue Sky laws of such
jurisdictions as you shall reasonably request, applicable laws of
Germany, The Netherlands, Japan and of such other jurisdictions as
otherwise reasonably requested by you as a result of a change in law
occurring after the date hereof and prior to the Closing Date or Option
Closing Date; PROVIDED, HOWEVER, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself
to taxation in respect of doing business in any jurisdiction in which
it is not otherwise so subject.
(e) To make generally available to the Company's
security holders and to you as soon as practicable an earnings
statement covering the twelve-month period ending June 30, 2001 that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder and to generally
comply with the reporting requirements of the Neuer Markt segment of
the Frankfurt Stock Exchange.
(f) To comply with the undertakings set forth in the
Prospectus under the heading "Taxation--Certain United States Federal
Income Tax Considerations."
(g) To place stop transfer orders on any Directed
Shares that have been sold to Participants subject to the three month
restriction on sale, transfer, assignment, pledge or hypothecation
imposed by NASD Regulation, Inc. under its Interpretative Material
2110-1 on free-riding and withholding to the extent necessary to ensure
compliance with the three month restrictions.
(h) To comply in all material respects with all
applicable securities and other applicable laws, rules and regulations
in each jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program, assuming compliance by the
Underwriters with the provisions of Section 9(ii) hereof.
(i) To have the Firm Shares and any Additional Shares
which are sold by the Company and the Warrantholders pursuant to the
terms of this Agreement and the Pricing Agreement duly recorded on a
notarial deed as promptly as practicable following the date which is
the earlier of (i) 40 days after the Closing Date and (ii) the date on
which all the Additional Shares have been sold to the Underwriters
pursuant to this Agreement.
(j) Without the prior consent of the Global
Coordinators not to, and to use its best efforts to ensure that none of
its subsidiaries will, make any press or public announcement or public
comment, other than in the ordinary course of business, intended to be
published in the press concerning the Company or any of its
subsidiaries (or concerning the offering of the Shares and the ADSs in
Germany or elsewhere after the execution of this Agreement and prior to
30 days after the Closing Date (unless the Company is obligated to make
such announcement pursuant to applicable laws or rules of the Frankfurt
Stock Exchange or the Commission or the NASD or any other competent
regulatory body, in which event the Company prior to the release
thereof will consult with the Global Coordinators as to the text of any
such announcement).
(k) To advise the Global Coordinators on behalf of
the Underwriters promptly after it receives notice thereof, of any
communications received by the Company from the Frankfurt Stock
Exchange or the Nasdaq Stock Market and to furnish the Global
Coordinators copies of any such written communications.
(l) To use its best efforts to have the Shares
approved for listing on the Neuer Markt segment of the Frankfurt Stock
Exchange and the ADSs approved for quotation on the Nasdaq National
Market.
(ii) Each Underwriter, jointly and severally, represents,
warrants and covenants with the Company as follows:
(a) Each Underwriter understands that no action has
been or will be taken in any jurisdiction by the Underwriters or the
Company that would permit a public offering of the Shares, or
possession or distribution of the Prospectus, in preliminary or final
form, in any jurisdiction where, or in any circumstances in which,
action for that purpose is required, other than the United States and
Germany. Each Underwriter represents, warrants and agrees that it has
complied with and will comply with all applicable laws and regulations,
and has made or obtained and will make or obtain all necessary filings,
consents or approvals, in each jurisdiction in which it purchases,
offers, sells or delivers Shares or distributes a prospectus or any
offering or publicity materials (including, without limitation, any
applicable requirements relating to the delivery of the International
Prospectus, in preliminary or final form). Each Underwriter further
represents, warrants and agrees that it has not made and will not make
any offer, sale or delivery of Shares that would require the Company to
make any filings or obtain any consents to comply with applicable laws
of any jurisdiction other than the United States, Germany, The
Netherlands and Japan and any other jurisdiction as agreed to between
the Company and the Global Coordinators pursuant to Section 9(i)(d)
hereof.
(b) Each Underwriter represents, warrants and agrees
that (1) it has not offered or sold and, prior to the date six months
after the Closing Date, will not offer or sell, any Shares to persons
in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995; (2) it
has complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in
relation to the Shares in, from or otherwise involving the United
Kingdom; and (3) it has only issued or passed on and will only issue or
pass on in the United Kingdom any document received by it in connection
with the offering of the Shares to a person who is of a kind described
in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to
whom such document may otherwise lawfully be issued or passed on.
(c) Each Underwriter represents, warrants and agrees
that it has not offered or sold, and agrees not to offer or sell, in
The Netherlands or to or for the account of any resident or legal
entity thereof, any of the Shares, other than to individuals or legal
entities who or which trade or invest in securities in the conduct of
their profession or trade, which include banks, brokers, dealers,
insurance companies, pension funds and other institutional investors,
and commercial enterprises which regularly, as an ancillary activity,
invest in securities.
(d) Each Underwriter represents, warrants and agrees
that (1) it has not offered or sold and will not offer or sell,
directly or indirectly, any Shares to the public in France, and (2)
offers and sale of Shares in France will be made in accordance with
Article 6 of the Ordinance nDEG.67-833 dated September 28, 1967, as
amended, and Decree nDEG.98-880 dated October 1, 1998 relating to
offers to a limited number of investors and/or qualified investors. In
addition, each Underwriter agrees it will not distribute or cause to be
distributed in France the Prospectus, any preliminary prospectus or any
offering material relating to the Shares other than to investors to
whom offers and sales of Shares in France may be made as described
above.
(e) Each Underwriter represents, warrants and agrees
that (1) the sale of the Shares in the Republic of Italy shall be
effected in accordance with all Italian securities, tax and other
applicable laws and regulations, and (2) it will not offer, sell or
deliver any shares or distribute copies of this prospectus or any other
document relating to the shares in the Republic of Italy unless such
offer, sale or deliver of the shares or distribution of copies of this
prospectus or any other document relating to the shares in the Republic
of Italy is (a) made by an investment firm, bank or financial
intermediary permitted to conduct such activities in the Republic of
Italy in accordance with Legislative Decree No. 385 of 1 September 1993
("DECREE NO. 385"), Legislative Decree No. 58 of 24 February 1998,
COMMISSIONE NAZIONALE PER LE SOCIETA E LA BORSA ("CONSOB") Regulation
No. 11971 of 14 May 1999 and any other applicable laws and regulations,
(b) in compliance with Article 129 of Decree No. 385 and the
implementing instructions of the Bank of Italy, pursuant to which the
issue, trading or placement of securities in Italy is subject prior to
notification to the Bank of Italy, unless an exemption applies, and (c)
in compliance with any other applicable notification requirement or
limitation which may be imposed by CONSOB or the Bank of Italy or any
other Italian regulatory authority.
(f) Each Underwriter represents, warrants and agrees
that it has not offered or sold, and agrees not to offer or sell,
directly or indirectly, in Japan or to or for the account of any
resident thereof, any of the Shares acquired in connection with the
distribution contemplated hereby, except pursuant to any exemption from
the
registration requirements of the Securities and Exchange Law of Japan
and otherwise in compliance with applicable provisions of Japanese law.
Each Underwriter further agrees to send to any dealer who purchases
from it any of the Shares a notice stating in substance that, by
purchasing such Shares, such dealer represents and agrees that it has
not offered or sold, and will not offer or sell, any of such Shares,
directly or indirectly, in Japan or to or for the account of any
resident thereof except pursuant to any exemption from the registration
requirements of the Securities and Exchange Law and otherwise in
compliance with applicable provisions of Japanese law, and that such
dealer will send to any other dealer to whom it sells any of such
Shares a notice containing substantially the same statement as is
contained in this sentence.
(g) Each underwriter represents, warrants and agrees
that (i) it is aware of the fact that, prior to the approval of the
Frankfurt Stock Exchange, no sales prospectus in Germany has been and
will be published in connection with the sale of the shares to
investors in Germany and (ii) it has complied and will comply with the
German Securities Prospectus Act (WERTPAPIER-VERTAUFSPROSPEKTGESETZ)
and the restrictions set forth therein applying to the offer and sale
to German investors of securities for which no sales prospectus has
been published.
10. EXPENSES. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Sellers
agree to pay or cause to be paid all expenses incident to the performance of
their obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel, the Company's accountants and Selling
Shareholders' counsel in connection with the registration and delivery of the
Shares and ADSs under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the
transfer and delivery of the Shares and ADSs to the Underwriters, including any
transfer or other similar taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Shares and ADSs under state securities laws and all
expenses in connection with the qualification of the Shares and ADSs for offer
and sale under state securities laws as provided in Section 9(i)(d) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection with such qualification and in connection with
the Blue Sky or legal investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the Shares and
ADSs by the National Association of Securities Dealers, Inc. (v) all costs and
expenses incident to quotation of the ADSs on the Nasdaq National Market and the
listing of the then existing Share Capital of the Company on the Neuer Markt
segment of the Frankfurt Stock Exchange, (vi) the cost of printing certificates
representing the Shares and ADSs, (vii) the costs and charges of any transfer
agent, registrar or depositary, (viii) the costs
and expenses of the Company relating to investor presentations on any "road
show" undertaken in connection with the marketing of the offering of the Shares
and ADSs, including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show,(ix) all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share Program and
stamp duties, similar taxes or duties or other similar taxes, if any, incurred
by the Underwriters in connection with the Directed Share Program and (x) all
other costs and expenses incurred by the Company incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section. It is understood, however, that except as provided in this
Section, Section 11 entitled "Indemnity and Contribution," and the last
paragraph of Section 13 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Shares or ADSs by them and any advertising
expenses connected with any offers they may make.
11. INDEMNITY AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank AG, Salomon
Brothers AG and each other member of the German listing consortium that is not
an Underwriter, and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act, Section 20 of the Exchange
Act or Section 17 of the German Stock Corporation Act, from and against any and
all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein PROVIDED, HOWEVER, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Shares or ADSs, or any person
controlling such Underwriter, if it is established that a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of the Shares or ADSs to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section
9(i)(a) hereof.
(b) Each Selling Shareholder, severally and not
jointly, agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act, Section 20 of the Exchange Act
or Section 17 of the German Stock Corporation Act, from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or any
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, but only with respect to information relating to such
Selling Shareholder or any shareholder, general partner or limited
partner or member of the Selling Shareholder, as the case may be, or
any other person holding a direct or indirect equity interest in the
Selling Shareholder, furnished to the Company in writing on behalf of
the Selling Shareholder expressly for use therein.
(c) Each Selling Shareholder, severally and not
jointly, agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each
person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act, Section 20 of the Exchange Act or
Section 17 of the German Stock Corporation Act from and against any and
all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
respect to information relating to such Selling Shareholder or any
shareholder, general partner or limited partner or member of the
Selling Shareholder, as the case may be, or any other person holding a
direct or indirect equity interest in the Selling Shareholder,
furnished to the Company in writing on behalf of the Selling
Shareholder expressly for use therein.
(d) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement, and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act, Section 20 of the Exchange Act or Section 17 of
the German Stock Corporation Act and each Selling Shareholder and each
person, if any, who controls such Selling Shareholder within the
meaning of either Section 15 of
the Securities Act, Section 20 of the Exchange Act or Section 17 of the
German Stock Corporation Act to the same extent as the foregoing
indemnity from the Company or such Selling Shareholder to such
Underwriter (including any legal or other expenses reasonably incurred
by the Company in connection with defending or investigating any such
actions or claim), but only with reference to information relating to
such Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments
or supplements thereto.
(e) In case any proceeding (including any
governmental investigation) shall be instituted involving any person in
respect of which indemnity may be sought pursuant to Sections 11(a),
11(b), 11(c) or 11(d), such person (the "INDEMNIFIED PARTY") shall
promptly notify the person against whom such indemnity may be sought
(the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for Underwriters and all persons, if
any, who control any Underwriter within the meaning of either Section
15 of the Securities Act, Section 20 of the Exchange Act or Section 17
of the German Stock Corporation Act, (ii) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the
Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the
meaning of either such Section and (iii) the fees and expenses of more
than one separate firm (in addition to any local counsel) for Carrier
One LLC and for all Selling Shareholders and all persons, if any, who
control Carrier One LLC or any Selling Shareholder within the meaning
of either such Section, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm
for the Underwriters and such control persons of any Underwriters, such
firm shall be designated in writing by MSIL. In the case of any such
separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the
Company. In the case of any such separate firm for Carrier One LLC, and
such directors, officers and control persons of Carrier
One LLC, such firm shall be designated in writing by Carrier One LLC.
In the case of any such separate firm for the Selling Shareholders and
such control persons of any Selling Shareholders, such firm shall be
designated in writing by the persons named as attorneys-in-fact for the
Selling Shareholders. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent,
but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of
such settlement or judgment.
Notwithstanding the foregoing paragraph, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the foregoing paragraph, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more
than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. Notwithstanding the immediately preceding sentence, if
at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement
effected without its consent if such indemnifying party (i) reimburses
such indemnified party in accordance with such request to the extent
such request is reasonable and made in good faith and (ii) provides
written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding and (ii) does not
include a statement as to, or an admission of, fault, culpability or a
failure to act, by or on behalf of any indemnified party.
(f) To the extent the indemnification provided for in
Sections 11(a), 11(b), 11(c) or 11(d) is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from
the offering of the
Shares and ADSs or (ii) if the allocation provided by Section 11(f)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
Section 11(f)(i) above but also the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or
parties on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
as well as any other relevant equitable considerations. The relative
benefits received by the Sellers on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares and
ADSs shall be deemed to be in the same respective proportions as the
net proceeds from the offering of the Shares and ADSs (before deducting
expenses) received by each Seller and the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth
in the table on the cover of the Prospectus, bear to the aggregate
Offering Price of the Shares and ADSs. The relative fault of the
Sellers on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
the Sellers or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 11 are several in proportion to the
respective number of Shares and ADSs they have purchased hereunder, and
not joint.
(g) The Sellers and the Underwriters agree that it
would not be just or equitable if contribution pursuant to this Section
11 were determined by PRO RATA allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 11(f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 11, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares or ADSs underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
11 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(h) The indemnity and contribution provisions
contained in this Section 11 and the representations, warranties and
other statements of the Company and the Selling Shareholders contained
in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, any Selling Shareholder or any person
controlling any Selling Shareholder, or the Company, its officers or
directors or any person controlling the Company and (iii) acceptance of
and payment for any of the Shares or ADSs.
12. DIRECTED SHARE PROGRAM INDEMNIFICATION. (a) The Company
agrees to indemnify and hold harmless MSIL and its affiliates and each person,
if any, who controls MSIL or any of its affiliates within the meaning of either
Section 15 of the Securities Act, Section 20 of the Exchange Act or Section 17
of the German Stock Corporation Act ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ENTITIES"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant has agreed to purchase; or (iii) related
to, arising out of, or in connection with the Directed Share Program other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities.
(b) In case any proceeding (including any governmental
investigation) shall be instituted involving any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity
in respect of which indemnity may be sought pursuant to Section 12(a),
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity seeking indemnity shall promptly notify the
Company in writing and the Company, upon request of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity, shall retain counsel reasonably satisfactory to the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity to represent the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity and any other the
Company may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at
the expense of such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity unless (i) the Company shall
have agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both
the Company and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The Company shall not, in
respect of the legal expenses of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities in
connection with any proceeding or related proceedings the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities. Any such firm for the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities shall be
designated in writing by MSIL. The Company shall not be liable for any
settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the
plaintiff, the Company agrees to indemnify the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time a
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall have requested the Company to reimburse it
for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the Company agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by the Company of the aforesaid request and (ii) the
Company shall not have reimbursed the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity in
accordance with such request prior to the date of such settlement. The
Company shall not, without the prior written consent of MSIL, effect
any settlement of any pending or threatened proceeding in respect of
which any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity is or could have been a party and
indemnity could have been sought hereunder by such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity, unless such settlement (i) includes an unconditional release of
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities from all liability on claims that are the
subject matter of such proceeding and (ii) does not include a statement
as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity.
(c) To the extent the indemnification provided for in Section
12(a) is unavailable to a ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then the Company, in lieu of indemnifying the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity thereunder, shall contribute to the amount paid or payable by
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand from the offering of the
Directed Shares or (ii) if the allocation provided by Section 12(c)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
Section 12(c)(i) above but also the relative fault of the Company on
the one hand and of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to
be in the same respective proportions as the net proceeds from the
offering of the Directed Shares (before deducting expenses) and the
total underwriting discounts and commissions received by the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entities for the Directed Shares, bear to the aggregate Share
Offer Price. If the loss, claim, damage or liability is caused by an
untrue or alleged untrue statement of a material fact, the relative
fault of the Company on the one hand and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities on
the other hand shall be determined by reference to, among other things,
whether the
untrue or alleged untrue statement or the omission or alleged omission
relates to information supplied by the Company or by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(d) The Company and the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities agree that it
would not be just or equitable if contribution pursuant to this Section
12 were determined by PRO RATA allocation (even if the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entities were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable
considerations referred to in Section 12(c). The amount paid or payable
by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entities in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
Section 12, no ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity shall be required to contribute
any amount in excess of the amount by which the total price at which
the Directed Shares distributed to the public were offered to the
public exceeds the amount of any damages that such ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Entity has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The remedies
provided for in this Section 12 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Entity at law or in equity.
(e) The indemnity and contribution provisions contained in
this Section 12 shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Entity or the
Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Directed
Shares.
13. TERMINATION. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the Frankfurt Stock Exchange, New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in Frankfurt, London or New
York shall have been declared by authorities in Germany, the United Kingdom or
the United States or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of MSIL after consultation with SBIL, is material and
adverse and (b) in the case of any of the events specified in clauses 13(a)(i)
through 13(a)(iv), such event, singly or together with any other such event,
makes it, in MSIL's judgment after consultation with SBIL, impracticable to
market the Shares or ADSs on the terms and in the manner
contemplated in the Prospectus.
14. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares (including Shares in the form of ADSs) that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the aggregate number of the Shares to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the number of Firm Shares set forth opposite their
respective names in Schedule I bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; PROVIDED that in no event shall the number of Shares that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 14 by an amount in excess of one-ninth of such number
of Shares without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you, the Company and the Selling
Shareholders for the purchase of such Firm Shares are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter, the Company or the Selling Shareholders. In
any such case either you or the relevant Sellers shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. If, on the
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Shares and the aggregate number of Additional Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Shares to be purchased, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
Additional Shares or (ii) purchase not less than the number of Additional Shares
that such non-defaulting Underwriters would have been obligated to purchase in
the absence of such default. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of any Seller to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason any Seller shall be unable to perform its obligations under
this Agreement, the Sellers will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering
contemplated hereunder.
15. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE. The Company irrevocably agrees that any legal suit, action or
proceeding brought by any Underwriter or by any person who controls any
Underwriter arising out of or relating to this Agreement and the transactions
contemplated hereby and thereby may be instituted in any federal or state court
in the Borough of Manhattan, The City of New York, the State of New York and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding and any claim of inconvenient forum, and irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding.
The Company (i) irrevocably designates and appoints CT
Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(together with any successor, the "AUTHORIZED AGENT"), as its authorized agent
upon which process may be served in any suit, action or proceeding described in
the first sentence of this Section 15 and represents and warrants that the
Authorized Agent has accepted such designation and (ii) agrees that service of
process upon the Authorized Agent and written notice of said service to the
Company (mailed or delivered to Carrier 1 International S.A., c/o Carrier1
International GmbH, at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
Attention: General Counsel), shall be deemed in every respect effective service
of process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of the Authorized Agent in full force and effect so
long as any of the Shares shall be outstanding.
If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures MSIL could purchase United States
dollars with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligations of the Company
in respect of any sum due from it to any Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, be discharged only if
and to the extent on the first business day following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Company agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter against such loss. If the United States
dollars so purchased are greater than the sum originally due to such Underwriter
hereunder, such Underwriter agrees to pay to the Company (but without
duplication) an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with
respect to itself or its property, it hereby irrevocably waives such immunity in
respect of its obligations under the above-referenced documents, to the extent
permitted by law.
16. NOTICES. All notices and other communications under this
Agreement shall be in writing and mailed, delivered or sent by facsimile
transmission to: if sent to the Underwriters, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
Limited, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ England, attention:
[____________________], facsimile number [__________] and, if sent to the
Company, to Carrier 1 International S.A., c/o Carrier1 International GmbH,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, Attention: General Counsel,
facsimile number 011-41-1-297-2601.
17. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
18. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
19. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Very truly yours,
CARRIER 1 INTERNATIONAL S.A.
By:_______________________
Name:
Title:
CARRIER ONE, LLC
By:_______________________
Name:
Title:
The Selling Shareholders other than
Carrier One LLC named in Schedule II
hereto, acting severally
By:_______________________
Attorney-in-Fact
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
By: ____________________________
Name:
Title:
Salomon Brothers International Limited
By: ____________________________
Name:
Title:
SCHEDULE I
NUMBER OF FIRM
SHARES
UNDERWRITER TO BE PURCHASED
----------- -----------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited.....................
Salomon Brothers International Limited.........................
Bear, ▇▇▇▇▇▇▇ International Limited............................
▇▇▇▇▇▇▇ ▇▇▇▇▇ International....................................
UBS AG, acting through its division
Warburg Dillon Read.........................................
Commerzbank Aktiengesellschaft.................................
Total........................................................ 9,375,000
SCHEDULE II
SELLING SHAREHOLDERS
NUMBER OF FIRM NUMBER OF ADDITIONAL
SELLING SHAREHOLDERS SHARES TO BE SOLD SHARES TO BE SOLD
-------------------- ----------------- --------------------
Carrier One, LLC
[NAMES OF SELLING
SHAREHOLDERS]
ANNEX A
FORM OF PRICING AGREEMENT
PRICING AGREEMENT dated [__________], 2000
among
(1) CARRIER 1 INTERNATIONAL S.A. (the "COMPANY"),
(2) CARRIER ONE, LLC and each of the other selling shareholders listed on
Schedule II to the Underwriting Agreement referred to below (each a "SELLING
SHAREHOLDER" and together the "SELLING SHAREHOLDERS"), and
(3) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED and SALOMON BROTHERS
INTERNATIONAL LIMITED (each a "GLOBAL COORDINATOR" and together the "GLOBAL
COORDINATORS"), acting severally on behalf of themselves and the several
Underwriters named in Schedule I to the Underwriting Agreement.
RECITAL
The Company, the Selling Shareholders and the Underwriters have agreed,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated [__________], 2000 (the "UNDERWRITING AGREEMENT"), between the
Company and Selling Shareholders on the one hand and the Global Coordinators and
the other Underwriters on the other hand, that the Company will issue and sell
and the Selling Shareholders will sell to the Underwriters, and the
Underwriters, severally and not jointly, will purchase from the Company and the
Selling Shareholders, the Firm Shares. The parties hereto desire to establish
herein the Share Offer Price and the ADS Offer Price to be paid by the
Underwriters for the Firm Shares pursuant to Section 3 of the Underwriting
Agreement.
ARTICLE 1 - DEFINITIONS
Unless otherwise defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined.
ARTICLE 2 - PURCHASE AND SALE; OFFER PRICE
The parties hereto agree that the Share Offer Price shall be Euro
[_____] per Share and
the ADS Offer Price shall be $[______] per ADS. Underwriting commissions,
discounts and fees shall be as set forth on Schedule A hereto.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
(a) The Company represents and warrants to each of the Underwriters
that the Registration Statement has become effective and no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) Each of the Company and the Selling Shareholders represents and
warrants with respect to each of them to each of the Underwriters that the
representations and warranties set forth in Section 1 of the Underwriting
Agreement with respect to each of them are accurate as though expressly made at
and as of the date hereof.
(c) Each of the Underwriters represents and warrants with respect to
each of them to each of the Company and the Selling Shareholders that its
representations and warranties set forth in Section 9(ii) of the Underwriting
Agreement with respect to each of them are accurate as though expressly made at
and as of the date hereof.
ARTICLE 4 - SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE
The Company irrevocably agrees that any legal suit, action or
proceeding brought by any Underwriter or by any person who controls any
Underwriter arising out of or relating to this Agreement and the transactions
contemplated hereby and thereby may be instituted in any federal or state court
in the Borough of Manhattan, The City of New York, the State of New York and
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit, action
or proceeding and any claim of inconvenient forum, and irrevocably submits to
the non-exclusive jurisdiction of any such court in any such suit, action or
proceeding.
The Company (i) irrevocably designates and appoints CT Corporation
System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together
with any successor, the "AUTHORIZED AGENT"), as its authorized agent upon
which process may be served in any suit, action or proceeding described in
the first sentence of this Article 4 and represents and warrants that the
Authorized Agent has accepted such designation and (ii) agrees that service
of process upon the Authorized Agent and written notice of said service to
the Company (mailed or delivered to Carrier 1 International S.A., c/o
Carrier1 International GmbH, at ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, Attention: General Counsel), shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the
execution and filing of any and all such documents and instruments, as may be
necessary to continue
such designation and appointment of the Authorized Agent in full force and
effect so long as any of the Shares shall be outstanding.
If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures MSIL could purchase United States
dollars with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligations of the Company
in respect of any sum due from it to any Underwriter shall, notwithstanding any
judgment in a currency other than United States dollars, be discharged only if
and to the extent on the first business day following receipt by such
Underwriter of any sum adjudged to be so due in such other currency, such
Underwriter may in accordance with normal banking procedures purchase United
States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Company agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter against such loss. If the United States
dollars so purchased are greater than the sum originally due to such Underwriter
hereunder, such Underwriter agrees to pay to the Company (but without
duplication) an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
ARTICLE 5 - APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
CARRIER 1 INTERNATIONAL S.A.
By: ____________________________
Name:
Title:
CARRIER ONE, LLC
By: ____________________________
Name:
Title:
The Selling Shareholders other than Carrier One LLC named in Schedule II to the
Underwriting Agreement
By: ____________________________
Attorney-in-Fact
Accepted as of [________], 2000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
SALOMON BROTHERS INTERNATIONAL LIMITED
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I to the Underwriting Agreement.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
By: ____________________________
Name:
Title:
SALOMON BROTHERS INTERNATIONAL LIMITED
By: ____________________________
Name:
Title:
SCHEDULE A
OFFER PRICE AND COMMISSIONS
---------------------------------
IN EURO IN U.S. DOLLARS
------ ---------------
Share Offer Price per Share.................................. Euro US$
ADS Offer Price per ADS...................................... US$
Gross Spread per Share....................................... Euro US$
Gross Spread per ADS......................................... US$
Concession per Share......................................... Euro US$
Concession per ADS........................................... US$
U.S. Dealer Reallowance per Share............................ Euro US$
U.S. Dealer Reallowance per ADS.............................. US$
Per Share amounts are quoted and priced in euro, and translated to U.S. dollars
at an exchange rate of $[______] to Euro 1.00 (the "EXCHANGE RATE"). ADSs are
quoted and priced in U.S. dollars, determined based on the per Share amounts by
applying a ratio of one Share to 5 ADSs and the Exchange Rate.
ANNEX B
FORM OF SUBSCRIPTION CERTIFICATE
This Subscription Certificate is issued pursuant to Section 4 of the
Underwriting Agreement, dated as of [_____________], 2000 (the "Underwriting
Agreement"), among Carrier 1 International S.A. (the "Company"), certain
shareholders of the Company named in Schedule II thereto and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. International Limited and Salomon Brothers International Limited on behalf
of the underwriters named in Schedule I thereto, and is subject to the
provisions of the Underwriting Agreement.
Pursuant to Arcticle 5 of the Articles of Incorporation of the Company, the
board of directors is authorized to increase the subscribed share capital of the
Company once or several times through issuance of new shares up to a total
amount of subscribed share capital of US$110,000,000 represented by 55,000,000
shares with a nominal value of US$2.00 per share.
On [__________], 2000, the board of directors decided to make use of this
authority and to increase the subscribed share capital of the Company by
US$15,000,000 through issuance of 7,500,000 registered shares with full right to
dividends starting with fiscal year 2000. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International
Limited was permitted to subscribe to it. The new shares are issued at their
nominal value of US$2.00 per share.
We understand that the existing shareholders of the Company do not have any
subscription right with respect to the subscription and issuance of shares today
by the Company.
We hereby subscribe to and accept delivery of new shares in a total nominal
value of
US$15,000,000
divided into 7,500,000 shares with a nominal value of US$2.00 per share.
We have paid 100% of the nominal amount, or $15,000,000, through credit to the
"Capital Increase Account" of Carrier 1 International S.A. at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated.
Our subscription is not binding if we have not received a certified copy of the
resolution of the board of directors authorizing such capital increase by 11:00
a.m. (Frankfurt time) on [___________], 2000.
Luxembourg, on [__________], 2000
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
ANNEX C
FORM OF OPINION OF BONN & ▇▇▇▇▇▇▇
LUXEMBOURG COUNSEL TO THE COMPANY
1. Carrier 1 International S.A., a societe anonyme organized
under the laws of Grand Duchy of Luxembourg (the "COMPANY"), has been duly
incorporated, is validly existing as a corporation (SOCIETE ANONYME) under the
laws of Luxembourg and has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus.
2. The subscribed and authorized share capital of the Company
conformed at the date of the Prospectus, as to legal matters, to the description
thereof contained in the Prospectus.
3. The share capital outstanding prior to the execution of the
Underwriting Agreement (including the shares to be sold by Carrier One LLC) has
been duly authorized and validly issued, and is fully paid and non-assessable.
4. The Company has the corporate power and authority to enter
into the Underwriting Agreement, the Pricing Agreement and the Deposit Agreement
(the "AGREEMENTS"), the Agreements have been duly authorized, the Underwriting
Agreement, insofar as Luxembourg law governs the execution and delivery thereof,
has been duly executed and delivered by the Company, and constitutes a valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms.
5. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Agreements will not
contravene the articles of incorporation of the Company or, to the best of our
knowledge, any agreement or other instrument binding upon the Company or its
Luxembourg subsidiary that, in our opinion, is material to the Company and its
subsidiaries, taken as a whole, or, to the best of our knowledge, any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or its Luxembourg subsidiary, and no consent, approval,
authorization or order of, or qualification with, any Luxembourg governmental
body or agency is required for the performance by the Company of its obligations
under the Agreements.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
ANNEX D
FORM OF OPINION OF DEBEVOISE & ▇▇▇▇▇▇▇▇
SPECIAL NEW YORK COUNSEL FOR THE COMPANY
1. To the extent that the laws of the State of New York govern
the due execution and delivery of the Underwriting Agreement by Carrier 1
International S.A., a societe anonyme organized under the laws of Grand Duchy of
Luxembourg (the "COMPANY"), the Company has duly executed and delivered the
Underwriting Agreement.
2. The Underwriting Agreement constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights generally, (ii)
general principals of equity, whether such principles are considered in a
proceeding at law or equity, (iii) an implied covenant of good faith,
reasonableness and fair dealing, and standards of materiality, and (iv)
limitations with respect to enforceability of provisions providing for
indemnification or contribution arising under applicable law (including court
decisions) or public policy.
3. The execution, delivery and performance of the Underwriting
Agreement, the Pricing Agreement and the Deposit Agreement by the Company (the
"AGREEMENTS") will not violate any existing United States Federal or New York
State statute, or rule, regulation, judgment, order or decree of any United
States Governmental Agency, known to us to be binding upon the Company (other
than any state securities or Blue Sky laws statutes, rules, regulations or
orders as to which we express no opinion), except as would not to our knowledge
have a Material Adverse Effect and except that no opinion is expressed as to the
accuracy or completeness of the Registration Statement or any Prospectus.
4. No consent, approval, authorization or order of, or filing
or registration with, any United States Governmental Agency is required to be
obtained or made by the Company for the issuance and sale of the Shares or the
performance by the Company today of its obligations under the Agreements in
connection with the issuance and sale today of the Shares or ADSs by the Company
except (a) such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares and the ADSs,
(b) as have been obtained under the Securities Act and the Exchange Act, (c) as
disclosed in the Prospectus or as have been made or obtained, (d) as may be
required under or pursuant to applicable state securities laws, statutes, rules,
regulations or orders, (e) as may be required under or pursuant to applicable
telecommunications laws and (f) for other consents, approvals, authorizations,
orders, filings or registrations the failure of which to be obtained or made
would not to our knowledge have a material adverse effect .
5. The Company is not and, upon the issuance and sale of the
Shares, will not be an "investment company," as that term is defined in the
Investment Company Act of 1940, as amended.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
ANNEX E
FORM OF OPINION OF THE GENERAL COUNSEL OF
CARRIER1 INTERNATIONAL GMBH
(A WHOLLY-OWNED SUBSIDIARY OF THE COMPANY)
The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Agreements will not
contravene any provision of existing applicable law or, to my knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under the Agreements, except in each case as would not reasonably be expected to
have a Material Adverse Effect.
In rendering the opinion set forth above, I express no opinion
as to (i) the validity, binding effect or enforceability of any of the
Agreements or (ii) the application of or compliance with securities laws,
statutes, rules or regulations of any jurisdiction.
ANNEX F
FORM OF OPINION OF SPECIAL
LUXEMBOURG COUNSEL TO THE UNDERWRITERS
1. The Shares issued today by the Company have been duly
authorized by the shareholders at their meeting of [_____________], 2000 and
have been validly issued at the par value thereof by the board of directors of
the Company pursuant to their resolution passed today and against the payment of
the Subscription Price, being the par value thereof, were fully paid at the par
value thereof, and are non-assessable.
2. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement,
the Pricing Agreement and the Deposit Agreement will not contravene any
provision of applicable Luxembourg law.
EXHIBIT A
[FORM OF LOCK-UP LETTER]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., as Representatives of the several Underwriters (the
"REPRESENTATIVES"), propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with Carrier1 International, S.A., a societe anonyme
organized under the laws of Grand Duchy of Luxembourg (the "COMPANY"), providing
for the public offering (the "PUBLIC OFFERING") by several Underwriters,
including the Representatives (the "UNDERWRITERS"), of shares of common stock,
par value $2.00 per share, of the Company (the "COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of the
Representatives on behalf of the Underwriters, it will not, during the period
commencing on the date hereof and ending 180 days after the date of the final
prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer to
sell, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of Common Stock, whether any such transaction described in clause
(1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise. The foregoing sentence shall not apply to (1)
transactions relating to shares of Common Stock or other securities acquired in
open market transactions after the completion of the Public Offering, (2) gifts
and transfers by will or intestacy or (ii) transfers to (A) the undersigned's
members, partners, affiliates or immediate family or (B) a trust, the
beneficiaries of which are the undersigned and/or members of the undersigned's
immediate family, shall not be prohibited by this agreement; provided that (x)
the donee or transferee agrees in writing to be bound by the foregoing in the
same manner as it applies to the undersigned and (y) if the donor or transferor
is a reporting person subject to Section 16(a) of the Securities Exchange
Act of 1934 (the "EXCHANGE ACT"), any gifts or transfers made in accordance
with this paragraph shall not require such person to, and such person shall
not voluntarily, file a report of such transaction of Form 4 under the
Exchange Act or (3) transfers of Common Stock or other securities to the
Company or any of its subsidiaries pursuant to any purchase rights under the
company's share purchase and share option plans. "Immediate family" shall
mean spouse, lineal descendants, father, mother, brother or sister of the
transferor and father, mother, brother or sister of the transferor's spouse.
In addition, the undersigned agrees that, without the prior written consent
of the Representatives on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 180 days after the date of
the Prospectus, make any demand for or exercise any right with respect to,
the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
Very truly yours,
-----------------------
(Name)
-----------------------
(Address)
EXHIBIT A-2
PERSONS DELIVERING LOCK-UP LETTERS
* ▇▇▇▇▇▇▇ ▇▇▇▇
* ▇▇▇▇▇▇ Sreeves
* ▇▇▇▇▇▇ D'Occhio
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
* ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
* ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
* ▇▇▇▇▇▇ De Chateaunain
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
* ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
* ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
* ▇▇▇▇▇▇▇ ▇▇▇▇▇
* Sandrine Laponche
* ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
* ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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* * * * * * * * *
EXHIBIT B
FORM OF OPINION OF BONN & ▇▇▇▇▇▇▇
LUXEMBOURG COUNSEL TO THE COMPANY
1. Carrier 1 International S.A., a societe anonyme organized
under the laws of Grand Duchy of Luxembourg (the "COMPANY"), has been duly
incorporated, is validly existing as a corporation (SOCIETE ANONYME) under the
laws of Luxembourg and has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus.
2. The subsidiary of the Company organized under the laws of
Luxembourg, CARRIER 1 INTERNATIONAL MANAGEMENT (LUX) SARL, has been duly
incorporated, is validly existing as a corporation (SOCIETE A RESPONSABILITE
LIMITEE) under the laws of Luxembourg and has the corporate power and authority
to own its property and to conduct its business as described in the Prospectus.
All of the issued share capital of the Luxembourg subsidiary of the Company has
been duly and validly authorized and issued, is fully paid and non-assessable,
and is owned directly by the Company, to the best of our knowledge, free and
clear of all liens, encumbrances, equities or claims.
3. The subscribed and authorized share capital of the Company
conformed at the date of the Prospectus, as to legal matters, to the description
thereof contained in the Prospectus.
4. The share capital outstanding as of the date of the
Underwriting Agreement (including the Shares being sold by Carrier One LLC) has
been duly authorized and is validly issued, fully paid and non-assessable.
5. The Company has the corporate power and authority to enter
into the Underwriting Agreement, the Pricing Agreement and the Deposit Agreement
(the "AGREEMENTS"), and the Agreements have been duly authorized, and insofar as
Luxembourg law governs the execution and delivery thereof, have been duly
executed and delivered by the Company, and constitute valid and binding
agreement of the Company, enforceable again the Company in accordance with its
terms.
6. The execution and delivery by the Company of, and the
performance by the Company of its obligations under the Agreements does not and
will not contravene the Articles of Association of the Company or, to the best
of our knowledge, any agreement or other instrument binding upon the Company
that, in our opinion, is material to the Company and its subsidiaries, taken as
a whole, or, to the best of our knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company, and no
consent, approval, authorization or order of, or qualification with, any
Luxembourg governmental body or agency is required for the performance by the
Company of its
obligations under the Agreements.
7. After due inquiry, we do not know of any legal or
governmental proceedings pending or threatened to which the Company is a party
or to which any of the properties of the Company is subject.
8. Except as set forth in the Prospectus, to the best of our
knowledge each of the Company and its Luxembourg subsidiary has all necessary
permits, licenses, authorizations, consents, orders, certificates and approvals
of and from all applicable Luxembourg governmental, administrative or regulatory
authorities, self-regulatory organizations and courts and other tribunals to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus; to the best of our
knowledge, neither the Company nor and its Luxembourg subsidiary has not
received any notice of proceedings which remain unresolved relating to
revocation or modification of any such permits, licenses, authorizations,
consents, orders, certificates or approvals.
9. To the best of our knowledge, as of today, the Company, its
Luxembourg subsidiary and its foreign subsidiaries do not provide
telecommunication services in or from Luxembourg and therefore they do not need
any permits, licenses, authorizations, consents, orders, certificates or
approvals of or from any Luxembourg national, regional or local governmental
authorities, all self-regulatory organizations and all courts and tribunals
(collectively, the "GOVERNMENTAL AUTHORITIES") competent for telecommunication
matters.
10. To the best of our knowledge, after due inquiry, (i) no
decree or order of any Governmental Authority has been issued against the
Company and (ii) no litigation, proceeding, inquiry or investigation has been
commenced or threatened, against the Company before or by any Governmental
Authority.
11. The statements in (i) the Prospectus under the captions
"Business--Enforceability of Certain Civil Liabilities," "Business--Legal
Proceedings," "Description of Share Capital" and "Certain Relationships and
Related Transactions" and (ii) in the Registration Statement in Item 14, insofar
as such statements constitute summaries of the legal matters, documents or
proceedings referred to therein governed by Luxembourg law, fairly summarize in
all material respects the matters referred to therein.
12. The statements in the Prospectus under the caption
"Taxation--Certain Luxembourg Tax Considerations," insofar as such statements
constitute a summary of Luxembourg tax laws referred to therein, are accurate
and fairly summarize in all material respects the Luxembourg tax laws referred
to therein.
13. Except as described in the Prospectus, no Luxembourg stamp
or other issuance or transfer taxes or duties or capital gains, income,
withholding or other taxes are payable by or on behalf of the Underwriters in
Luxembourg or any political subdivision or
taxing authority thereof or therein in connection with (i) the authorization,
issue or delivery by the Company of the Shares and ADSs or (ii) the purchase by
the Underwriters of the Shares or ADSs or the sale and delivery by the
Underwriters of the Shares or ADSs, provided that the Underwriters are not
Luxembourg residents for purposes of income taxes, the execution and delivery of
the Agreements or the consummation of the transactions contemplated thereby,
save that the registration may be ordered and a registration fee of 2.4 per cent
on the total amount involved might become payable if the Agreements were to be
exhibited before a Luxembourg Court or a Luxembourg official authority (AUTORITE
CONSTITUEE); in practice, the registration is rarely ordered.
14. The Company's agreement to the choice of law provisions
set forth in the Agreements is valid and binding under the laws of Luxembourg
and we do not know of any reason why the courts of Luxembourg would not give
effect to the choice of New York law as the proper law of the Agreements; the
Company has the legal capacity to ▇▇▇ and be sued in its own name under the laws
of Luxembourg; the Company has the power to submit, and has irrevocably
submitted, to the non-exclusive jurisdiction of the New York courts and has
validly and irrevocably appointed CT Corporation System as its authorized agent
as set forth and for the purpose described in the Agreements under the laws of
Luxembourg; the irrevocable submission of the Company to the non-exclusive
jurisdiction of the New York courts and the waivers by the Company of any
immunity and any objection to the venue of a proceeding in a New York court
located in the Agreements are legal, valid and binding under the laws of
Luxembourg and we do not know of any reason why the courts of Luxembourg would
not give effect to such submission and waivers; service of process in the manner
set forth in the Agreements will be effective to confer valid jurisdiction over
the Company under the laws of Luxembourg; and the courts in Luxembourg will
recognize and will enforce, subject to fulfillment of applicable recognition and
enforcement procedures (EXEQUATUR procedures), any final and conclusive judgment
against the Company obtained in a New York court arising out of or in the
Agreements.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
EXHIBIT C
FORM OF OPINION OF DEBEVOISE & ▇▇▇▇▇▇▇▇
SPECIAL NEW YORK COUNSEL FOR THE COMPANY
1. To the extent that the laws of the State of New York govern
the due execution and delivery of the Underwriting Agreement, the Pricing
Agreement or the Deposit Agreement (the "AGREEMENTS") by Carrier 1 International
S.A., a societe anonyme organized under the laws of Grand Duchy of Luxembourg
(the "COMPANY"), the Company has duly executed and delivered each Agreement.
2. Each of the Agreements constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws relating to or affecting enforcement of creditors' rights generally, (ii)
general principals of equity, whether such principles are considered in a
proceeding at law or equity, (iii) an implied covenant of good faith,
reasonableness and fair dealing, and standards of materiality, and (iv)
limitations with respect to enforceability of provisions providing for
indemnification or contribution arising under applicable law (including court
decisions) or public policy.
3. The execution, delivery and performance of the Agreements
by the Company do not violate any existing United States Federal or New York
State statute, or rule, regulation, judgment, order or decree of any United
States Governmental Agency, known to us to be binding upon the Company (other
than any state securities or Blue Sky laws statutes, rules, regulations or
orders as to which we express no opinion), except as would not to our knowledge
have a Material Adverse Effect and except that no opinion is expressed as to the
accuracy or completeness of the Registration Statement or any Prospectus.
4. Assuming the sale of the ADSs as contemplated in the
Underwriting Agreement and the due and authorized issuance by the Depositary of
the ADRs evidencing ADSs against deposit of the Shares in accordance with the
Deposit Agreement, such ADRs will be duly and validly issued and the persons in
whose names such ADRs are registered will be entitled to the rights specified in
the ADRs and the Deposit Agreement.
5. No consent, approval, authorization or order of, or filing
or registration with, any United States Governmental Agency is required to be
obtained or made by the Company for issuance and sale of the Shares or ADSs by
the Company or the performance by the Company today of its obligations under the
Agreements in connection with the issuance and sale today of the Share or ADSs
by the Company except (a) such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Shares
and the ADSs, (b) as have been obtained under the Securities Act and the
Exchange Act, (c) as disclosed in the Prospectus or as have been made or
obtained, (d) as may be required
under or pursuant to applicable state securities laws, statutes, rules,
regulations or orders, (e) as may be required under or pursuant to applicable
telecommunications laws and (f) for other consents, approvals, authorizations,
orders, filings or registrations the failure of which to be obtained or made
would not to our knowledge have a Material Adverse Effect.
6. The Company is not and, upon the issuance and sale today of
the Shares, will not be an "investment company," as that term is defined in the
Investment Company Act of 1940, as amended.
7. The statements set forth in the Prospectus under the
headings "Description of Certain Indebtedness," "Description of Share
Capital--Description of the Warrants," "Description of American Depositary
Receipts," in each case insofar as such statements constitute summaries of the
legal matters, documents or proceedings referred to therein, provide a fair
summary of the matters described therein in all material respects.
8. The statements set forth in the Prospectus under the
caption "Taxation--Certain United States Federal Income Tax Considerations,"
"Taxation--Common Stock," and "Taxation--Information Reporting and Backup
Withholding," insofar as such statements purport to summarize certain United
States Federal income tax laws relating to the purchase, ownership and
disposition of the Shares or ADSs by certain U.S. Holders (as such term is
defined in the Prospectus), provide a fair summary of such consequences under
current law in all material respects.
9. The Registration Statement and U.S. Prospectus (except for
financial statements, notes and schedules and other financial and statistical
data contained therein as to which we express no opinion) as of their respective
effective or issue dates, appear on their face to comply as to form in all
material respects with requirements of the Securities Act and the applicable
rules and regulations of the Securities and Exchange Commission thereunder.
10. Assuming the validity of such actions under Luxembourg
law, under the laws of the State of New York relating to personal jurisdiction
(including venue), (i) pursuant to Section 15 of the Underwriting Agreement,
Article 4 of the Pricing Agreement and Section 706 of the Deposit Agreement, the
Company has validly submitted to the nonexclusive jurisdiction of any United
States federal or New York state court located in the Borough of Manhattan, The
City of New York, the State of New York, in any action arising out of or
relating to any of the Agreements, has validly waived (to the extent permitted
by law) any objection to the venue of a proceeding in any such court, and has
validly appointed CT Corporation System as its authorized agent for the purpose
described in Section 15 of the Underwriting Agreement, Article 4 of the Pricing
Agreement and Section 706 of the Deposit Agreement, and (ii) service of process
effected on such agent in the manner set forth in Section 15 of the Underwriting
Agreement, Article 4 of the Pricing Agreement and Section 706 of the Deposit
Agreement will be effective to confer valid personal jurisdiction over the
Company, except that we express no opinion as to any waiver of inconvenient
forum.
We have not ourselves checked the accuracy or completeness of,
or otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the U.S.
Prospectus, except to the limited extent stated in paragraphs 7 and 8 above. In
the course of our review and discussion of the contents of the Registration
Statement and the Prospectus with certain officers and employees of the Company
and the Company's independent auditors, but without independent check or
verification, no facts have come to our attention that cause us to believe that
the Registration Statement (except for financial statements, notes and schedules
and other financial and statistical data contained therein, as to which we
express no belief), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein not misleading, or that the Prospectus (except for
financial statements, notes and schedules and other financial and statistical
data contained therein, as to which we express no belief), as of its date and as
of the date hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or that any contract or other document that is of a
character required to be filed as an exhibit to the Registration Statement is
not so filed.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
EXHIBIT D
FORM OF OPINION OF THE GENERAL COUNSEL OF
CARRIER1 INTERNATIONAL GMBH
(A WHOLLY-OWNED SUBSIDIARY OF THE COMPANY)
1. Each subsidiary of Carrier 1 International S.A., a societe
anonyme organized under the laws of Grand Duchy of Luxembourg (the "COMPANY"),
has been duly organized or formed, as applicable, and is validly existing under
the laws of the jurisdiction of its organization or formation (except where the
failure to be duly organized or formed would not reasonably be expected to have
a Material Adverse Effect), has the corporate or company power and authority to
own its property and to conduct its business as described in the Prospectus
(except where the failure to have such power or authority would not reasonably
be expected to have a Material Adverse Effect) and is duly qualified to transact
business in each jurisdiction in which the conduct of its business or leasing of
property requires such qualification (except where the failure to be so
qualified would not reasonably be expected to have a Material Adverse Effect).
The outstanding shares of capital stock or membership interests of each
subsidiary of the Company (other than any company in the process of formation
with no significant operations) have been duly authorized and validly issued and
are fully paid and non-assessable, and all such shares or membership interests
are owned by the Company or a wholly-owned subsidiary thereof, to my knowledge
free and clear of all liens, encumbrances, equities or claims.
2. Except as set forth in the Prospectus, (i) the Company has
all certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all reports, filings and registrations with,
all Luxembourg national, regional or local governmental authorities, all
self-regulatory organizations and all courts and tribunals (collectively, the
"GOVERNMENTAL AUTHORITIES") necessary to own, lease, license or use its
properties and assets and conduct its business in the manner described in the
Prospectus, except as would not reasonably be expected to have a Material
Adverse Effect, and (ii) neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to revocation, modification or
non-renewal of any such certificates, orders, permits, licenses, authorizations,
consents or approvals, or the qualification or rejection of any such report,
filing or registration, the effect of which would reasonably be expected to have
a Material Adverse Effect.
3. Other than as set forth or contemplated in the Prospectus,
(i) no decree or order of any of the Governmental Authorities has been issued
against the Company or any of its subsidiaries and (ii) there is no action, suit
or judicial proceeding pending or overtly threatened to which the Company or any
of its subsidiaries is a party or to which its or their properties is subject,
and no notice of violation or order to show cause has been issued against the
Company or any of its subsidiaries, before or by any of the Governmental
Authorities, in
the case of both (i) and (ii) that would reasonably be expected to materially
and adversely affect the issuance today of Shares and ADSs or that questions the
validity of the Underwriting Agreement, the Pricing Agreement or the Deposit
Agreement (the "AGREEMENTS") or that would reasonably be expected to have a
Material Adverse Effect.
4. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Agreements do not
contravene any provision of existing applicable law or, to my knowledge, any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under the Agreements, except in each case as would not reasonably be expected to
have a Material Adverse Effect.
In rendering the opinions set forth above, I express no
opinion as to (i) the validity, binding effect or enforceability of any of the
Agreements or (ii) the application of or compliance with securities laws,
statutes, rules or regulations of any jurisdiction.
I have not myself checked the accuracy or completeness of, or
otherwise verified, and am not passing upon and assume no responsibility for the
accuracy or completeness of, the statements contained in the U.S. Prospectus. In
the course of my review and discussion of the contents of the Registration
Statement and Prospectus with certain officers and employees of Carrier1 and
Carrier1's independent auditors, but without independent check or verification,
no facts have come to my attention that cause me to believe that (i) the
Registration Statement (except for financial statements, notes and schedules and
other financial and statistical data contained therein), at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein not misleading or (ii)
the Prospectus (except for financial statements, notes and schedules and other
financial and statistical data contained therein), as of its date and as of the
date hereof, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (iii) that any contract or other document that is of a
character required to be filed as an exhibit to the Registration Statement is
not so filed.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
EXHIBIT E
FORM OF OPINION OF LOCAL COUNSEL
We are of the opinion that:
1. the descriptions in the Prospectus of matters in connection
with current [COUNTRY] statutes relating to telecommunications, and the
respective rules and regulations promulgated thereunder (collectively,
the "[COUNTRY] Communications Law"), including, without limitation, the
statements in the Prospectus under the captions "Business--Governmental
Regulation," are accurate in all material respects and fairly summarize
all matters described therein;
2. the Company [the Operating Company]1 is the holder of
license[s] issued by the [RELEVANT GOVERNMENT AGENCY], dated _________,
199_, issued under Section ____ of [RELEVANT LAW], relating to the
provision of telecommunications services in [COUNTRY];
3. (A) the execution and delivery of the Underwriting
Agreement and the Deposit Agreement by the Company, and the
consummation of the transactions (including, without limitation,
issuance of the Shares and the ADSs) contemplated thereby do not
violate (1) the [COUNTRY] Communications Law, (2) any rules or
regulations of [GOVERNMENT AGENCY] applicable to the Company and its
subsidiaries and (3) to the best of our knowledge after due inquiry,
any telecommunications related decree from any [COUNTRY] court, and (B)
no authorization of or filing with [GOVERNMENT AGENCY] is necessary for
the execution and delivery of the Underwriting Agreement or the Deposit
Agreement by the Company and the consummation of the transactions
(including, without limitation, issuance of the Shares and the ADSs)
contemplated thereby in accordance with the terms thereof;
4. (A) each of the Company and its subsidiaries has all
certificates, orders, permits, licenses, authorizations, consents and
approvals of and from, and has made all reports, filings and
registrations with, [GOVERNMENT AGENCY] necessary to own, lease,
license and use its properties and assets and to conduct its business,
and its contemplated business, in the manner described in the
Prospectus; and (B) to the best of
--------
1To be used when the Company operates through a subsidiary incorporated in the
opinion giver's jurisdiction.
our knowledge after due inquiry, neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation, modification or non-renewal of any such certificates,
orders, permits, licenses, authorizations, consents or approvals, or
the qualification or rejection of any such reports, filing or
registration, the effect of which, singly or in the aggregate, would
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
5. to the best of our knowledge after due inquiry, (A) each of
the Company and its subsidiaries is conducting its business in
accordance with [GOVERNMENT AGENCY] authorizations listed in Paragraph
4 above and (B) neither the Company nor any of its subsidiaries is in
violation of or in default under the [COUNTRY] Communications Law or
the rules or regulations of [GOVERNMENT AGENCY], the effect of which,
singly or in the aggregate, would have a material adverse effect on the
Company and its subsidiaries, taken as a whole; and
6. to the best of our knowledge, after due inquiry, (A) no
decree or order of the [GOVERNMENT AGENCY] has been issued against the
Company or any of its subsidiaries; (B) no litigation, proceeding,
inquiry or investigation has been commenced or threatened, and no
notice of violation or order to show cause has been issued, against the
Company or any of its subsidiaries before or by [GOVERNMENT AGENCY] and
(C) there are no rulemakings or other administrative proceedings
pending before [GOVERNMENT AGENCY] which, (i) are generally applicable
to telecommunications services or the resale thereof and (ii) if
decided adversely to the interest of the Company or its subsidiaries,
would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
* Unless otherwise defined herein, capitalized terms used herein have the
meanings assigned to such terms in the Underwriting Agreement.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
EXHIBIT F
FORM OF OPINION OF CARRIER ONE LLC COUNSEL
(a) The execution and delivery by Carrier One LLC of, and the
performance by Carrier One LLC of its obligations under, the
Underwriting Agreement and the Pricing Agreement will not contravene
any provision of applicable law (except in so far as indemnity and
contribution is limited by applicable law and public policy), or any
certificate of incorporation, bylaws or other equivalent organizational
documents of Carrier One LLC, or, to such counsel's knowledge, any
agreement or other instrument binding upon Carrier One LLC that is
material to Carrier One LLC or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over Carrier One
LLC, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by Carrier One LLC of its obligations under the
Underwriting Agreement or the Pricing Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares and the ADSs and other
than those already obtained from the Frankfurt Stock Exchange and the
Nasdaq Stock Market, and under the securities laws of The Netherlands,
the Securities Act and the Exchange Act and those as may be required
for the listing of the Company's Share Capital on the Neuer Markt
segment of the Frankfurt Stock Exchange.
(b) This Agreement has been duly authorized, executed and
delivered by or on behalf of Carrier One LLC.
(c) The Pricing Agreement has been duly authorized by Carrier
One LLC and, assuming due execution and delivery by the other parties
thereto, is a valid and binding agreement of Carrier One LLC,
enforceable in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors' rights generally, (ii) general
principals of equity, whether such principles are considered in a
proceeding at law or equity, (iii) an implied covenant of good faith,
reasonableness and fair dealing, and standards of materiality, and (iv)
limitations with respect to enforceability of provisions providing for
indemnification or contribution arising under applicable law (including
court decisions) or public policy.
EXHIBIT G
FORM OF OPINION OF SPECIAL
LUXEMBOURG COUNSEL TO THE UNDERWRITERS
1. The Shares issued by the Company on [_______________], 2000
have been duly authorized by the shareholders at their meeting of
[_____________], 2000 and have been validly issued at the par value thereof by
the board of directors of the Company pursuant to their resolution passed at
their meeting of [________________], 2000 and against the payment of the
Subscription Price, being the par value thereof, were fully paid at the par
value thereof, and are non-assessable. After the subsequent payment on such
Shares of the Share Offer Price less the par value of such Shares less
applicable fees and commissions (the "Additional Payment") pursuant to the
Underwriting Agreement, such Shares are fully paid at the par value thereof plus
the Additional Payment, and non-assessable. The Shares sold today by the
Warrantholders have been duly authorized and are validly issued, fully paid and
non-assessable. The issuance by the Company of the Shares being sold by the
Company and by the Warrantholders is not subject to any preemptive or similar
rights.
7. The execution and delivery by the Company of, and the
performance by the Company of its obligations under the Underwriting Agreement,
the Pricing Agreement and the Deposit Agreement do not and will not contravene
any provision of applicable Luxembourg law.
EXHIBIT H
FORM OF OPINION OF ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
1. The Deposit Agreement has been duly authorized, executed
and delivered by the Depositary and constitutes a valid and legally
binding agreement of the Depositary, enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity.
2. Upon issuance by the Depositary of ADRs evidencing the ADSs
against the deposit of Registered Shares in respect thereof in
accordance with the terms of the Deposit Agreement, such ADRs will be
duly and validly issued, and the Holders thereof will be entitled to
the rights specified in such ADRs and in the Deposit Agreement.
EXHIBIT I
FORM OF OPINION OF WARRANTHOLDER COUNSEL
(a) The execution and delivery by the Warrantholder of, and
the performance by such Warrantholder of its obligations under, the
Underwriting Agreement, the Pricing Agreement and its Irrevocable Power
of Attorney and Custody Agreement will not contravene any provision of
applicable law (except in so far as indemnity and contribution is
limited by applicable law and public policy), or any certificate of
incorporation, bylaws or other equivalent organizational documents of
such Warrantholder, or, to such counsel's knowledge, any agreement or
other instrument binding upon such Warrantholder that is material to
such Warrantholder or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over such Warrantholder, and
no consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by such
Warrantholder of its obligations under the Underwriting Agreement, the
Pricing Agreement or the Power of Attorney and Custody Agreement of
such Warrantholder, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and
sale of the Shares and the ADSs and other than those already obtained
from the Frankfurt Stock Exchange and the Nasdaq Stock Market, and
under the securities laws of The Netherlands, the Securities Act and
the Exchange Act and those as may be required for the listing of the
Company's Share Capital on the Neuer Markt segment of the Frankfurt
Stock Exchange.
(b) The Warrantholder has valid title to the Warrants each
entitling the holder thereof to purchase the number of shares specified
therein; the Warrantholder assuming exercise of Warrants in accordance
with the Irrevocable Power of Attorney and Custody Agreement,
immediately prior to the time the Shares to be sold by it are delivered
to the Underwriters, will have valid title to the Shares to be sold by
such Warrantholder; and the Warrantholder has the legal right and
power, and all authorization and approval required by law, to enter
into the Underwriting Agreement, the Pricing Agreement and the Power of
Attorney and Custody Agreement of such Warrantholder and to sell,
transfer and deliver the Shares to be sold by such Warrantholder.
(c) The Irrevocable Power of Attorney and Custody Agreement of
the Warrantholder has been duly authorized, executed and delivered by
such Warrantholder and is a valid and binding agreement of such
Warrantholder, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity.
(d) The Underwriting Agreement and the Pricing Agreement have
been duly authorized by the Warrantholder and, when executed and
delivered will be valid and binding agreements of such Warrantholder,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(e) Assuming exercise of Warrants in accordance with the
Irrevocable Power of Attorney and Custody Agreement, delivery of the
Shares to be sold by the Warrantholder pursuant to the Underwriting
Agreement and the Pricing Agreement will pass title to such Shares free
and clear of any security interests, claims, liens, equities and other
encumbrances.