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Exhibit 1.1
XO Communications, Inc.
[FORM OF EQUITY SECURITIES]
UNDERWRITING AGREEMENT
(U.S. VERSION)
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as Representatives of the several Underwriters
named in Schedule A hereto
c/o [ ]
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Ladies and Gentlemen:
XO Communications, Inc., a corporation organized under the laws of the
State of Delaware (the "Company"), proposes to issue and sell from time to time
shares of its [preferred stock] [Class A common stock] registered under the
registration statement referred to in Paragraph 1(a)(i) hereof, the terms of
which shall be determined at the time of sale. [The preferred stock will be
issued in one or more series, which series may vary as to dividend rates,
redemption provisions, selling prices, as to whether depositary shares will be
offered and other terms, with all such terms for any particular series of the
stock being determined at the time of sale.] [The [_______] Depositary Shares,
each representing a [fraction] interest in a share of Preferred Stock, Series
[___], par value $0.01 per share, will be issued by [_______] (the "Depositary")
under a Deposit Agreement to be entered into by and among the Company, the
Depositary and from time to time the holders of the Depositary Shares issued
thereunder.] The Company proposes to sell to the underwriters named in Schedule
A hereto (the "Underwriters") for whom you are acting as representative(s) (the
"Representatives"), [a series of] [the] stock with the terms specified in
Schedule B hereto (the "[Firm] Shares"). [At the option of the Underwriters, the
Company proposes, subject to the terms and conditions set forth herein, to sell
the additional shares of its [preferred stock] [Class A common stock] specified
in Schedule B hereto (the "Optional Shares" and together with the Firm Shares,
the "Shares").]
[It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "International Underwriting
Agreement") providing for the sale by the Company of [a series of] stock, the
terms of which are specified in Schedule C hereto (the "International Shares")
through arrangements with certain underwriters outside the United States and
Canada (the "International Underwriters"), for whom [_________________________],
[___________________], [________________________] and [________________________]
are acting as lead managers. Anything herein or therein to the contrary
notwithstanding, the respective closings under this Agreement and the
International Underwriting Agreement are hereby expressly made conditional on
one another. The Underwriters hereunder and the International Underwriters are
simultaneously entering into an Agreement Between U.S. Underwriters and
International Underwriters (the "Agreement between U.S. Underwriters and
International Underwriters") which provides, among other things, for the
transfer of the Shares between the two syndicates. Two forms of Prospectus are
to be used in connection with the offering and sale of the Shares contemplated
by the foregoing, one relating to the Shares hereunder and the other relating to
the International Shares. The latter form of Prospectus will be identical to the
former except for certain
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substitute pages as included in the registration statement and amendments
thereto as mentioned below. Except as used in Sections 2(a), 2(b), 2(c) and 10
herein, and except as the context may otherwise require, references hereinafter
to the Shares shall include all the Shares which may be sold pursuant to either
this Agreement or the International Underwriting Agreement, and references
herein to any prospectus whether in preliminary or final form, and whether as
amended or supplemented, shall include both the U.S. and the international
versions thereof.]
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each of the Underwriters as of the date hereof and as
of [each of] the Closing Time[s] referred to in Section 2(c) hereof, and agrees
with each of the Underwriters as follows:
(i) Effectiveness of Registration Statement. A
registration statement on Form S-3 [(File No. 333-_____)] in respect
of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Underwriters, excluding exhibits
thereto, but including all documents incorporated by reference in the
prospectus contained therein, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "Rule 462(b) Registration
Statement") filed pursuant to Rule 462(b) under the Securities Act of
1933 (the "Act") which became effective upon filing, no other document
with respect to such registration statement or document incorporated
by reference therein has heretofore been filed with the Commission
(other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each in the form
heretofore delivered or to be delivered to the Representatives); and
no stop order suspending the effectiveness of the registration
statement, any post-effective amendment thereto or Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the registration
statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in such registration statement
and the Rule 462(b) Registration Statement, if any, at the time such
part of such registration statement or such part of the Rule 462(b)
Registration Statement, if any, became effective but excluding Form
T-1, each as amended at the time such part of the registration
statement or such part of the Rule 462(b) Registration Statement, if
any, became effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Shares, in
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934 (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any report of the Company filed
pursuant to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Shares in the form in which it is filed with the Commission pursuant
to Rule 424(b) under the Act in accordance with
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Section 3(a)(i) hereof, including any documents incorporated by
reference therein as of the date of such filing);
(ii) Compliance of the Registration Statement and
Prospectus with the Act. The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter expressly for use in the Prospectus as amended or
supplemented relating to such Shares;
(iii) Documents Incorporated by Reference. The documents
incorporated by reference in the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter expressly for use
in the Prospectus as amended or supplemented relating to such Shares;
(iv) Independent Accountants. The accountants who
certified the financial statements included in the Prospectus are
independent certified public accountants with respect to the Company
and its subsidiaries within the meaning of Regulation S-X under the
Act.
(v) Financial Statements. The financial statements,
together with the related notes, included in the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have
been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. The selected financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Prospectus.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus,
except as otherwise stated therein, (1) there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise (a "Material Adverse
Effect"), whether or not arising in the ordinary course of business,
(2) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one
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enterprise and (3) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock, except for those declared, paid or made on the preferred stock
of the Company outstanding as of the date hereof [and as otherwise
described on Schedule D hereto].
(vii) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation under the laws
of the State of Delaware and has power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement [and the International Underwriting Agreement]; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(viii) Good Standing of Designated Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each a "Designated Subsidiary" and,
collectively, the "Designated Subsidiaries") has been duly organized
and is validly existing and in good standing, where applicable, as a
corporation, limited liability company or limited partnership, as the
case may be, under the laws of the jurisdiction of its formation, has
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and is duly
qualified as a foreign corporation, limited liability company or
limited partnership, as the case may be, to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Prospectus, all of the issued and
outstanding capital stock or other equity interest of each Designated
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and at least 99% thereof is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock or other equity interests of
the Designated Subsidiaries were issued in violation of any preemptive
or similar rights arising by operation of law, or under the
constituting or operative document or agreement of any Designated
Subsidiary or under any agreement to which the Company or any
Designated Subsidiary is a party.
(ix) Capitalization. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Prospectus as of the dates indicated therein. The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive right, co-sale right, registration right,
right of first refusal or other similar rights of any securityholder of
the Company, as applicable.
(x) Authorization of Underwriting Agreement[s]. This
Agreement [and the International Underwriting Agreement] [has] [have]
been duly authorized, executed and delivered by the Company.
(xi) Authorization and Description of the Shares. The
Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered
by the Company pursuant to this Agreement against payment of the
consideration set forth in Schedule B hereto, will be validly issued
and fully paid and non-assessable; [if the Shares to be issued are
shares of preferred stock that are
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convertible into Class A common stock: when the Shares are delivered
and paid for pursuant to this Agreement, such Shares will be
convertible into Class A common stock of the Company in accordance with
their terms; the shares of Class A common stock initially issuable upon
conversion of the Shares have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such conversion,
will be validly issued, fully paid and nonassessable; the outstanding
shares of Class A common stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus;] the Shares conform and will
conform to the statements relating thereto contained in the Prospectus
as amended or supplemented with respect to such Shares and such
description conforms to the rights set forth in the instruments
defining the same; no holder of the Shares will be subject to personal
liability by reason of being such a holder; and the issuance of the
Shares by the Company is not subject to the preemptive right, co- sale
right, registration right, right of first refusal or other similar
rights of any securityholder of the Company other than those that have
been expressly waived prior to the date hereof. Except as disclosed in
or contemplated by the Prospectus and the financial statements of the
Company, and the related notes thereto, included in the Prospectus, the
Company does not have outstanding any options or warrants to purchase,
or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock
or any such options, rights, convertible securities or obligations. The
description of the Company's stock option and other plans or
arrangements, and the options or other rights granted and exercised
thereunder, in the Prospectus accurately and fairly presents, in all
material respects, the information required to be shown with respect to
such plans, arrangements, options and rights.
(xii) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its constituting
or operative document or agreement or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party, or by which or any
of them may be bound, or to which any of the property or assets of the
Company or any of its subsidiaries is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect; the issue and sale of the Shares,
the execution, delivery and performance of this Agreement, [the
International Underwriting Agreement], the Shares and any other
agreement or instrument entered into or issued or to be entered into or
issued by the Company in connection with the transactions contemplated
hereby, thereby or in the Prospectus and the consummation of the
transactions contemplated herein, therein and in the Prospectus
(including the issuance and sale of the Shares by the Company hereunder
[and under the International Underwriting Agreement]), the compliance
by the Company with its obligations hereunder [and under the
International Underwriting Agreement] have been duly authorized by all
necessary action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or a Repayment Event (as defined
below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to, the Agreements and Instruments except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that, singly or in the aggregate, would not result in a
Material Adverse Effect, nor will such action result in any violation
of the provisions of the constituting or operative document or
agreement of the Company or any of its subsidiaries or any applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its subsidiaries or any
of their assets or
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properties, except for such violations that, singly or in the
aggregate, would not result in a Material Adverse Effect. As used
herein, a "Repayment Event" means any event or condition which gives
the holder of any material note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the Company or any of its subsidiaries to repurchase, redeem
or repay all or a portion of such indebtedness.
(xiii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Shares hereunder or the consummation of the actions
contemplated by this Agreement, except such as have been obtained under
the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Shares by
the Underwriters [and the International Underwriters].
(xiv) Possession of Licenses and Permits. Each of the
Company and its Designated Subsidiaries has all material certificates,
consents, exemptions, orders, permits, licenses, authorizations,
franchises or other material approvals (each, an "Authorization") of
and from, and has made all material declarations and filings with, all
Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
necessary or appropriate for the Company and its Designated
Subsidiaries to own, lease, license, use and construct its properties
and assets and to conduct its business in the manner described in the
Prospectus, except to the extent that the failure to obtain any such
Authorizations or make any such declaration or filing would not, singly
or in the aggregate, result in a Material Adverse Effect. Except as set
forth in or contemplated by the Prospectus, all such Authorizations are
in full force and effect with respect to the Company and its Designated
Subsidiaries; to the best knowledge of the Company, no event has
occurred that permits, or after notice or lapse of time could permit,
the revocation, termination or modification of any such Authorization;
the Company and its Designated Subsidiaries are in compliance in all
material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory
authorities and governing bodies having jurisdiction with respect
thereto; and, except as set forth in the Prospectus, the Company has no
knowledge that any person is contesting or intends to contest the
granting of any material Authorization; and neither the execution and
delivery of this Agreement, [the International Underwriting Agreement]
or the Shares, nor the consummation of the transactions contemplated
hereby [and thereby] nor compliance with the terms, conditions and
provisions hereof [and thereof] by the Company or any of its Designated
Subsidiaries will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any Authorization.
(xv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of
any existing labor disturbance by the employees of any of its or any of
its subsidiaries' principal suppliers, manufacturers, customers or
contractors, which, in either case, would reasonably be expected to
result in a Material Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or
investigation before or by any court or governmental agency or body,
domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
which could reasonably be expected to result in a Material Adverse
Effect
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or which might reasonably be expected to materially and adversely
affect the consummation of this Agreement [or the International
Underwriting Agreement] or the performance by the Company of its
obligations hereunder [or thereunder]. The aggregate of all pending
legal or governmental proceedings to which the Company or any
subsidiary thereof is a party or of which any of their respective
property or assets is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xvii) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and except as otherwise
described in the Prospectus neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by them and
good title to all other properties owned by them, in each case, free
and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are
described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company or
any of its subsidiaries; and all of the leases and subleases material
to the business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has any
notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any subsidiary thereof to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xix) Tax Returns. The Company and its subsidiaries have
filed all federal, state, foreign and, to the extent material, local
tax returns that are required to be filed or have duly requested
extensions thereof and have paid all taxes required to be paid by any
of them and any related assessments, fines or penalties, except for any
such tax, assessment, fine or penalty that is being contested in good
faith and by appropriate proceedings; and adequate charges, accruals
and reserves have been provided for in the financial statements
referred to in Section 1(a)(v) above in respect of all federal, state,
local and foreign taxes for all periods as to which the tax liability
of the Company or any of its subsidiaries has not been finally
determined or remains open to examination by applicable taxing
authorities.
(xx) Environmental Laws. Except as described in the
Prospectus and except such matters as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign
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statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by
any private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous Materials
or Environmental Laws.
(xxi) Investment Company Act. The Company is not, and upon
the issuance and sale of the Shares as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Certain Disclosures in Prospectus. The statements set
forth in the Prospectus under the caption "Underwriting", insofar as
they purport to describe the provisions of the laws and documents
referred to therein, are accurate and complete in all material
respects[; and the statements set forth in the Prospectus under the
caption "Material United States Federal Tax Considerations for Non-U.S.
Holders of [Common] [Preferred] Stock", insofar as such statements
purport to summarize certain United States federal income and estate
tax consequences of the ownership and dispensation of the Shares by
certain non-U.S. holders (as such term is defined in the international
version of the Prospectus) of the Shares, provide a fair summary of
such consequences under current law].
(xxiii) No Manipulation or Stabilization. Neither the Company
nor, to its knowledge, any of its officers, directors or affiliates has
taken and will take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Shares.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company (or any of its subsidiaries) delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, [(a)]
the Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price and subject to the other terms set forth in this
Agreement and Schedule B hereto, the number of [Firm] Shares set forth opposite
its name in Schedule A hereto [and (b) in
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the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price and subject to
the other terms set forth in this Agreement and Schedule B hereto, the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by the Representatives so as to eliminate fractional shares) determined
by multiplying such number of Optional Shares by a fraction, the numerator of
which is the maximum number of Optional Shares which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule A hereto and the denominator of which is the maximum number of Optional
Shares that all of the Underwriters are entitled to purchase hereunder].
[The Company hereby grants to the Underwriters the right to purchase at
their election up to [_______] Optional Shares, at the purchase price and
subject to the other terms and conditions set forth in this Agreement and
Schedule B hereto, for the sole purpose of covering overallotments in the sale
of the Firm Shares. Any such election to purchase Optional Shares may be
exercised only by written notice from the Representatives to the Company, given
within a period of 30 calendar days after the date of this Agreement, setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by the
Representatives but in no event earlier than the First Closing Time (as defined
in Section 2(c) hereof) or, unless the Representatives and the Company otherwise
agree in writing, earlier than two or later than ten business days after the
date of such notice.]
(b) Terms and Conditions of Sale. Upon the authorization by the
Representatives of the release of the Shares, the several Underwriters propose
to offer the Shares for sale upon the terms and conditions set forth in the
Prospectus.
(c) Closing and Payment. The Shares to be purchased by each Underwriter
hereunder, in definitive form, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Company shall be delivered by or on
behalf of the Company to the Underwriters, through the facilities of the
Depository Trust Company ("DTC") (unless the Representatives shall otherwise
instruct) for the account of such Underwriter, against payment by or on behalf
of such Underwriter of the purchase price therefor to the Company in funds
specified on Schedule B hereto, all in the manner and at the place and time and
date [with respect to each of the Firm Shares and the Optional Shares] specified
on Schedule B hereto (or at such other place and time and date as the
Representatives and the Company may agree upon in writing) [with respect to the
Firm Shares, such place and time and date being referred to herein as] (the
"[First] Closing Time") [and with respect to the Optional Shares, the "Second
Closing Time"]. The Company will cause the certificates representing the Shares
to be made available for checking and packaging at least twenty-four hours prior
to [each of] the [relevant] Closing Time[s] with respect thereto at the offices
of DTC or its designated custodian (the "Designated Office"). [It is understood
and agreed that each Closing Time under this Agreement shall occur
simultaneously with each Closing Time under the International Underwriting
Agreement.]
SECTION 3. Covenants.
(a) Covenants of the Company. The Company covenants with each
Underwriter as follows:
(i) Preparation of Prospectus; Notices. To prepare the
Prospectus in a form approved by the Representatives and to file such
Prospectus, properly completed, and any supplement thereto, pursuant to
Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and
delivery of this Agreement as it relates to the Shares, or, if
applicable, such earlier time as may be required by Rule 424(b) under
the Act, and to provide evidence satisfactory to the Representatives of
such timely filing; to make or file no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of this Agreement relating to the Shares
and prior to [each of] the
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[relevant] Closing Time[s] which shall be disapproved by the
Representatives promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such
Closing Time[s] and furnish the Representatives with copies thereof; if
the Company elects to rely upon Rule 462(b), to file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington D.C. time, on the date of this
Agreement, and the Company shall at the time of filing either pay to
the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fees
as applicable under the Act; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of Shares, and
during such same period to advise the Underwriters, promptly after it
receives notice thereof, of the time when the Rule 462(b) Registration
Statement has been filed or becomes effective or the Prospectus or any
amended Prospectus has been filed and to furnish the Underwriters with
copies thereof; to advise the Underwriters, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of the Prospectus, of the
suspension of the qualification of the Shares [or the shares of Class A
common stock into which the Shares are convertible] for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order.
(ii) Qualifications of the Shares under State Securities
Laws. Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares [or the
shares of Class A common stock issuable upon the conversion of such
Shares] for offering and sale under the securities laws of such
jurisdictions as they may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.
(iii) Copies of and Amendments to Prospectus and
Supplements. Except as otherwise agreed, prior to 12:00 noon on the New
York Business Day next succeeding the date of this Agreement, to
furnish the Underwriters with copies of the Prospectus in New York City
in such quantities as the Representatives may reasonably request, and,
if the delivery of a Prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares [or the shares of
Class A common stock into which the Shares are convertible] and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such period to amend or supplement the Prospectus in
order to comply with the Act, to notify the Representatives and upon
their request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a Prospectus in connection with sales of any of the
Shares at any time nine months or more after the time of issue of the
Prospectus, upon the Representatives' request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many
copies as the Representatives may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act. The Company will
advise the Representatives promptly of any proposal
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to amend or supplement the Prospectus and will not effect such
amendment or supplement without the consent of the Representatives.
Neither the consent of the Representatives, nor the Underwriter's
delivery of any such amendment or supplement, shall constitute a waiver
of any of the conditions set forth in Section 5 hereof.
(iv) Investment Company. Not to be or become, at any time
prior to the expiration of three years after the [relevant] Closing
Time, an open-end investment company, unit investment trust, closed-end
investment company or face-amount certificate company that is or is
required to be registered under Section 8 of the 1940 Act.
(v) Information to the Representatives. During a period
of five years from the effective date of the Registration Statement,
[to furnish to the Representatives copies of all reports or other
communications (financial or other) furnished to stockholders and to
deliver to the Representatives such additional] information concerning
the business and financial condition of the Company as the
Representatives may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission).
(vi) Listing. To use its best efforts to qualify the
Shares, if applicable, for inclusion on the National Association of
Securities Dealers Automated Quotations National Market System
("NASDAQ").
(vii) Use of Proceeds. To use the net proceeds received by
it from the sale of the Shares pursuant to this Agreement [and the
International Underwriting Agreement] in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(viii) Earning Statement. To make generally available to its
stockholders as soon as practicable, but in any event not later than
the 45th day following the end of the fiscal quarter first occurring
after the first anniversary of the date of the Underwriting Agreement,
as that date is specified on Schedule B hereto, (as defined in Rule
158(c) under the Act), an earning statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations thereunder (including, at the
option of the Company, Rule 158).
[(ix) Lock-Up. During the period beginning from the date of
the Underwriting Agreement, as that date is specified on Schedule B
hereto, and continuing for the duration of the lock-up period specified
on Schedule B hereto (the "Lock-Up Period"), not to offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, or
announce an offering of, except as provided hereunder [or under the
International Underwriting Agreement], any Shares or any securities
convertible into or exchangeable for [_____] in an offering to the
public or in a private offering where holders of [_____] or securities
convertible into or exchangeable for [_____] are granted registration
rights that are immediately exercisable, other than (i) grants of
options and issuances and sales of Class A common stock issued pursuant
to any employee or director stock option plan, stock ownership plan,
401(k) savings and retirement plan, or stock purchase plan in effect on
the date of this Agreement, (ii) issuances of Class A common stock upon
the conversion of securities or the exercise of warrants outstanding on
the date of this Agreement, (iii) issuance of Class B common stock upon
exercise of options outstanding on the date of this Agreement, (iv)
issuance of common stock pursuant to agreements in effect on the date
of this Agreement (which issuances will not involve the issuance of a
material amount of shares of common stock) or (v) issuance of common
stock in connection with acquisitions.]
[(b) Covenants of the Underwriters. Each Underwriter agrees that:
(i) it is not purchasing any of the Shares for the
account of any person other than a United States or Canadian Person;
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(ii) it has not offered or sold, and will not offer or
sell, directly or indirectly, any of the Shares and has not distributed
and will not distribute any Prospectus to any person outside the United
States or Canada, or to any person other than a United States or
Canadian Person; and
(iii) any dealer to whom it may sell any of the Shares will
represent that it is not purchasing for the account of any person other
than a United States or Canadian Person and agree that it will not
offer or resell, directly or indirectly, any of the Shares outside the
United States or Canada, or to any person other than a United States or
Canadian Person or to any other dealer who does not so represent and
agree;
provided, however, that the foregoing shall not restrict [(A) purchases
and sales between the Underwriters on the one hand and the
International Underwriters on the other hand pursuant to the Agreement
Between U.S. Underwriters and International Underwriters, (B)]
stabilization transactions contemplated under the Agreement Between
U.S. Underwriters [and International Underwriters], conducted through
[________________________] (or through the Representatives [and
International Representatives]) as a part of the distribution of the
Shares, and (C) sales to or through (or distributions of Prospectuses
or Preliminary Prospectuses to) persons who are United States or
Canadian Persons who are investment advisors, or who otherwise exercise
investment discretion, and who are purchasing for the account of any
persons who are not United States or Canadian Persons.
The agreements of the Underwriters set forth in this paragraph
(b) of Section 3 shall terminate upon the earlier of the following
events:
(i) a mutual agreement of the Representatives and the
U.S. Representatives to terminate the selling restrictions set forth in
this paragraph (b) of this Section 3 [and in Section 3(b) of the
International Underwriting Agreement]; or
(ii) the expiration of a period of 30 days after [each of]
the [relevant] Closing Time[s], unless (A) the Representatives shall
have given notice to the Company [and the International
Representatives] that the distribution of the Shares by the
Underwriters has not yet been completed[, or (B) the International
Representatives shall have given notice to the Company and the
Underwriters that the distribution of the Shares by the International
Underwriters has not yet been completed]. If such notice by the
[International Representatives or the] Representatives is given, the
agreements set forth in such paragraph (b) shall survive until the
earlier of (1) the event referred to in the immediately preceding
clause (i) of this paragraph (b) or (2) the expiration of an additional
period of 30 days from the date of any such notice.
"United States or Canadian Person" shall mean any person who
is a national or resident of the United States or Canada, any
corporation, partnership, or other entity created or organized in or
under the laws of the United States or Canada or of any political
subdivision thereof, or any estate or trust the income of which is
subject to United States or Canadian Federal income taxation,
regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall
include any United States or Canadian branch of a person other than a
United States or Canadian Person. "U.S. or "United States" shall mean
the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.]
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary
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Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or reproducing any Agreement among Underwriters, this
Agreement, [the International Underwriting Agreement, the Agreement Between U.S.
Underwriters and International Underwriters,] closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under state securities
laws as provided in Section 3(a) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey, (iv) all fees and expenses in connection
with inclusion of the Shares on the NASDAQ, if applicable; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Shares, if applicable;
(vi) the cost of preparing stock certificates, if applicable; (vii) the cost and
charges of any transfer agent or registrar and of DTC; (viii) all fees charged
by securities rating services for rating the Shares, if applicable; and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 6
and 7 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder, as to the Shares
to be delivered at [each of] the [relevant] Closing Time[s], are subject to the
accuracy, at and as of such Closing Time, of the representations and warranties
of the Company contained in Section 1 hereof or in certificates of any officer
of the Company or any of its subsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Filing of Prospectus. The Prospectus as amended or supplemented in
relation to the applicable Shares shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
3(a)(i) hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Opinion of Counsel for Company. At [each of] the [relevant] Closing
Time[s], the Representatives shall have received the favorable opinion, dated as
of the [relevant] Closing Time, of βββββ, Day, ββββββ and βββββ, counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, to
the effect set forth in [Exhibit A] hereto, and to such further effect as
counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At [each of] the [relevant]
Closing Time[s], the Representatives shall have received the favorable opinion,
dated as of the [relevant] Closing Time, of [_______________________], counsel
for the Underwriters, with respect to the incorporation of the Company, the
validity of the Shares being delivered at the [relevant] Closing Time, the
Registration Statement, the Prospectus and such other related matters as the
Representatives may reasonably
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request. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York and the federal law of the United States, upon the opinions of counsel
satisfactory to the Underwriters. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificates. At [each of] the [relevant] Closing
Time[s], there shall not have been, since the date hereof or since the date of
the most recent financial statements included in the Prospectus (exclusive of
any supplement thereto), any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business except as set forth
in the Prospectus (exclusive of any supplement thereto), and the Representatives
shall have received certificates of the Chairman of the Board, the President or
a Vice President of the Company and of the chief financial or chief accounting
officer of the Company, and satisfactory to the Representatives, to the effect
that, at and as of such Closing Time, (i) they have carefully examined the
Registration Statement, the Preliminary Prospectus, the Prospectus and any
supplements thereto and this Agreement, (ii) there has been no such material
adverse change, (iii) the representations and warranties of the Company in
Section 1 hereof are true and correct in all material respects on and as of the
Closing Time with the same force and effect as though expressly made at and as
of such Closing Time, (iv) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to
such Closing Time, and (v) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or, to the Company's knowledge, threatened.
(e) Accountant's Comfort Letter. On the date of this Agreement at a
time prior to the execution of this Agreement, the Underwriters shall have
received from ββββββ ββββββββ LLP a letter or letters dated the effective date
of the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by reference in
the Registration Statement, if the date of such report is later than such
effective date, in form and substance satisfactory to the Representatives,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to the Underwriters with respect to the financial
statements and certain financial information contained in the Prospectus.
(f) Bring-down Comfort Letter. At [each of] the [relevant] Closing
Time[s], the Representatives shall have received from ββββββ ββββββββ LLP a
letter, dated as of the [relevant] Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section 5, except that the specified date referred to shall be a date
not more than three business days prior to such Closing Time.
(g) No Material Adverse Change in Business. Since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of this Agreement, (1) there has been no
Material Adverse Effect, whether or not arising in the ordinary course of
business, (2) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise, (3) there has been no dividend or distribution of any kind,
declared, paid or made by the Company on any class of its capital stock, except
for those declared, paid or made on the preferred stock of the Company
outstanding as of the date hereof [and as otherwise described on Schedule D
hereto] (4) there has been no change or decrease specified in the letters
referred to in Section 5(e) and 5(f) above, the effect of which, in any case
referred to in clauses (1) through (4) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Shares as
contemplated by the Prospectus relating to the Shares.
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(h) Maintenance of Rating. On or after the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Company's debt securities or preferred stock by any nationally recognized
securities rating agency, and no such securities rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
preferred stock.
(i) Listing. The Shares to be sold by the Company at such Closing Time
shall have been included for quotation on NASDAQ, if applicable.
(j) Delivery of Prospectuses. The Company shall have complied with the
provisions of Section 3(a)(iii) hereof with respect to the furnishing of
Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
(k) Adequate Disclosure of Litigation. There is no litigation or
governmental or other action, suit, claim, proceeding or investigation before
any court or any public, regulatory or governmental agency or body, pending or,
to the best of the Company's knowledge, threatened against the Company or any of
its subsidiaries or any of their respective officers (in their capacity as
officers of the Company or such subsidiaries) or any of the properties, assets,
business or rights of the Company or such subsidiaries which is of a character
required to be disclosed in the Registration Statement and Prospectus which is
not disclosed therein.
(l) Additional Documents. At [each of] the [relevant] Closing Time[s]:
(i) the Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request; (ii) counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Shares as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and (iii) all
proceedings taken by the Company in connection with the issuance and sale of the
Shares as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters.
(m) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to the [relevant] Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6 and 7 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any and all losses, liabilities (joint or several), claims,
damages and expenses whatsoever, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives
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specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who sign the Registration
Statement (including any person who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company) and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, against any and all losses, liabilities
(joint or several), claims, damages and expenses described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to written information furnished to the Company by such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity.
(c) Actions against Parties; Notification. Each indemnified party shall
give written notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii)
will not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. It is
understood that the indemnifying party shall, in connection with any proceeding
or related proceedings in the same jurisdiction, be liable only for the fees and
expenses of one separate firm (in addition to local counsel) for all such
indemnified parties. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim; provided, that such unconditional release may be subject to
a parallel release of a claimant or plaintiff by such indemnified party from all
liability in respect of claims or counterclaims asserted by such indemnified
party and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each
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indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses (including legal or other expenses
reasonably incurred in connection with investigating or defending same) incurred
by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Shares pursuant to this
Agreement (provided that in no case shall any Underwriter (except as may be
provided in any agreement among underwriters relating to the offering of the
Shares) be responsible for any amount in excess of the underwriting discount or
commission applicable to the Shares purchased by such Underwriter hereunder) or
(ii) if the allocation provided by clause (i) is unavailable for any reason, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Shares pursuant
to this Agreement (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Shares set forth opposite their respective names in Schedule A hereto and not
joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company and shall survive delivery of the Shares to the
Underwriters.
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SECTION 9. Termination of Agreement.
(a) Termination; General. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Shares, if at any time
prior to such time (i) trading in the Company's Class A common stock shall have
been suspended by the Commission or the NASDAQ or trading in securities
generally on the New York Stock Exchange or the NASDAQ shall have been suspended
or limited or minimum prices shall have been established on such Exchange or
NASDAQ, (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) there shall have occurred, subsequent to the
signing hereof, any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Shares as contemplated by the Prospectus.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If any one or more of the Underwriters shall fail to purchase and pay
for any of the Shares agreed to be purchased by such Underwriter or Underwriters
hereunder and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Shares set forth opposite their names
in Schedule A hereto bears to the aggregate amount of Shares set forth opposite
the names of all the remaining Underwriters) the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Shares set forth in Schedule A hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Shares, and if such nondefaulting
Underwriters do not purchase all of the Shares, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 10, the [relevant]
Closing Time shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
SECTION 11. Reliance; Notices.
In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by
[_________________________] on their behalf.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile to the Representative at its address set forth in Schedule B hereto;
and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Prospectus,
Attention: General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 6(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
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SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Shares from any Underwriter shall be deemed to be a successor by reason merely
of such purchase.
SECTION 13. Time of the Essence.
Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA. SPECIFIED TIMES OF
DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 16. Counterparts.
This Agreement may be executed by any one of more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, and upon
the acceptance hereof by the Representatives, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding
agreement between each of the Underwriters and the Company. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in a form of Master Agreement Among [U.S.]
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
XO Communications, Inc.
By
----------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
[ ]
[ ]
[ ]
[ ]
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[ ]
By: [ ]
By[ ]
------------------------------------
Name:
Title:
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
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SCHEDULE A
Number of Optional
Total Number of Shares to be Purchased if
Firm Shares to be Maximum Option
Underwriter Purchased Exercised
----------- --------- ---------
Total . . . . . . . . $
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SCHEDULE B
SHARES
UNDERWRITING AGREEMENT dated ____________, 200__.
REGISTRATION STATEMENT NO. 333-_______
REPRESENTATIVE[S] AND ADDRESS(ES):
SECURITIES:
TITLE:
NUMBER OF SHARES:
[FIRM]:
[OPTIONAL]:
PURCHASE PRICE: $_____ per share plus accrued dividends, if
any, from ____________, 2000_].
EXPECTED REOFFERING PRICE: $_____ per share, subject to change
by the [Representative[s]] [Underwriters].
PRE-CLOSING: _____P.M. on __________, 200__, at ____________.
CLOSING: _____A.M. on __________, 200__, at ____________, in
New York Clearing House (next day) funds.
[UNDERWRITER[S'] ['S] COMPENSATION: $_____ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.]
The respective numbers of Shares to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[The Shares will be made available for checking and packaging at the
office of ____________ at least 24 hours prior to the Closing Date.]
[LOCK-UP PERIOD: ____________________]
[CONVERTIBLE TERMS: The shares of [preferred stock] are
convertible into shares of Class A common stock at a ratio of [____] to [____].
The conversion rate is subject to adjustment in certain events.]
[OTHER TERMS:]
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SCHEDULE C
INTERNATIONAL SHARES
UNDERWRITING AGREEMENT dated ____________, 200__.
REGISTRATION STATEMENT NO. 333-_______
REPRESENTATIVE[S] AND ADDRESS(ES):
SECURITIES:
TITLE:
NUMBER OF SHARES:
[FIRM]:
[OPTIONAL]:
PURCHASE PRICE: $_____ per share plus accrued dividends, if
any, from ____________, 2000_].
EXPECTED REOFFERING PRICE: $_____ per share, subject to change
by the [Representative[s]] [Underwriters].
PRE-CLOSING: _____P.M. on __________, 200__, at ____________.
CLOSING: _____A.M. on __________, 200__, at ____________, in
New York Clearing House (next day) funds.
[UNDERWRITER[S'] ['S] COMPENSATION: $_____ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.]
The respective numbers of Shares to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[The Shares will be made available for checking and packaging at the
office of ____________ at least 24 hours prior to the Closing Date.]
[LOCK-UP PERIOD: ____________________]
[CONVERTIBLE TERMS: The shares of [preferred stock] are
convertible into shares of Class A common stock at a ratio of [____] to [____].
The conversion rate is subject to adjustment in certain events.]
[OTHER TERMS:]
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[SCHEDULE D]
[OUTSTANDING PREFERRED STOCK]
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