Exhibit 1.2
NEXTLINK Communications, Inc.
Class A Common Stock ($0.02 par value per share)
UNDERWRITING AGREEMENT
(International Version)
New York, New
York
____ _, 1999
Salomon Brothers International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Bear, ▇▇▇▇▇▇▇ International Limited
Credit Suisse First Boston (Europe) Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
as Representatives of the several Underwriters
named in Schedule A hereto
c/o Salomon Brothers International Limited
Victoria Plaza
111 Buckingham Palace Road
London SWIW OSB England.
Ladies and Gentlemen:
NEXTLINK Communications, Inc., a corporation organized under the laws of
the State of Delaware (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the underwriters named in
Schedule A hereto (the "Underwriters"), for whom Salomon Brothers International
Limited ("Salomon Brothers"), ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, Bear, ▇▇▇▇▇▇▇
International Limited, Credit Suisse First Boston (Europe) Limited and ▇▇▇▇▇▇▇
▇▇▇▇▇ International are acting as representatives (in such capacity, the
"Representatives"), an aggregate of 996,410 shares of Class A Common Stock, par
value $0.02 per share (the "Stock"), and the stockholders of the Company named
in Schedule B thereto (the "Selling Stockholders"), propose, subject to the
terms and conditions stated herein, to sell to the Underwriters an aggregate of
723,590 shares of Stock. At the election of the Underwriters, the Company and
the Selling Stockholders propose, subject to the terms and conditions stated
herein, to sell an aggregate of up to 258,000 additional shares of Stock. The
aggregate of 1,720,000 shares to be sold by the Company and the Selling
Stockholders is herein called the "Firm Shares" and the aggregate of 258,000
additional shares to be sold by the Company and any Selling Stockholders who so
choose, pursuant to that certain Registration Rights Agreement, dated January
14, 1999, is herein called the "Optional Shares" (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof collectively called the "Shares").
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement (the "U.S.
Underwriting Agreement") providing for the sale by the Company and the Selling
Stockholders of up to a total of 7,912,000 shares of Stock (the "U.S. Shares"),
including the overallotment option thereunder, through arrangements with certain
underwriters in the United States and Canada (the "U.S. Underwriters"), for whom
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, are acting as lead managers. Anything herein or therein to the
contrary notwithstanding, the respective closings under this Agreement and the
U.S. Underwriting Agreement are hereby expressly made conditional on one
another. The Underwriters hereunder and the U.S. 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 shares of
Stock between the two syndicates. Two forms of Prospectus are to be used in
connection with the offering and sale of shares of Stock contemplated by the
foregoing, one relating to the Shares hereunder and the other relating to the
U.S. Shares. The latter form of Prospectus will be identical to the former
except for certain substitute pages as included in the registration statement
and amendments thereto as mentioned below. Except as used in Sections 2(a),
2(b), 2(c) and 10 herein, and except as the context may otherwise require,
references hereinafter to the Shares shall include all the shares of Stock which
may be sold pursuant to either this Agreement or the U.S. 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 Closing Time 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. 333-77577) (the "Initial Registration
Statement") and an amendment number 1 on Form S-3 (File No. 333-77819)
(the "Amendment Number 1") in respect of the Shares have been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement, Amendment Number 1 and any post-effective
amendment thereto, each in the form heretofore delivered to the
Representatives, and, excluding exhibits thereto, to the Representatives
for each of the other Underwriters, 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, as amended (the "1933 Act") which became effective upon filing, no
other document with respect to the Initial Registration Statement or
Amendment Number 1 has heretofore been filed with the Commission; and no
stop order suspending the effectiveness of the Initial Registration
Statement, Amendment Number 1, any post-effective amendment thereto or the
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 Initial
Registration Statement or filed with the Commission pursuant to Rule
424(a) of the rules and regulations of the Commission under the 1933 Act,
is hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, Amendment Number 1 and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final Prospectus filed
with the
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Commission pursuant to Rule 424(b) under the 1933 Act in accordance with
Section 3(a) hereof and deemed by virtue of Rule 430A under the 1933 Act
to be part of the Initial Registration Statement at the time it was
declared effective, or such part of the Rule 462(b) Registration
Statement, if any, at the time it became effective (each such part of a
registration statement as amended at the time such part became effective),
are hereinafter collectively called the "Registration Statement"; and such
final Prospectus, in the form first filed pursuant to Rule 424(b) under
the 1933 Act, is hereinafter called the "Prospectus").
(ii) Compliance of Preliminary Prospectus with the Requirements of
the 1933 Act. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the 1933 Act and the rules and regulations
of the Commission thereunder, and did 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, in the light of the
circumstances under which they were made, 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 through
Salomon Brothers expressly for use therein or by the Selling Stockholders
expressly for use in the preparation of the answers therein to item 7 of
Form S-3.
(iii) Compliance of Registration Statement and Prospectus with the
Requirements of the 1933 Act. The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to the
requirements of the 1933 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 through
Salomon Brothers expressly for use therein or by the Selling Stockholders
expressly for use in the preparation of the answers therein to item 7 of
Form S-3.
(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 1933 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.
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(vi) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Prospectus, except as
otherwise stated therein, (1) there has been no material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a "Material Adverse Effect"), whether or not
arising in the ordinary course of business, (2) there have been no
transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with
respect to the Company and its subsidiaries considered as one enterprise
and (3) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock, except for
those declared, paid or made on the Company's 6 1/2 % Cumulative
Convertible Preferred Stock, including any interest and associated penalty
payments thereon, and the Company's 14% Senior Exchangeable Redeemable
Preferred Stock.
(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 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 interest of the
Designated Subsidiaries was 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
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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 Agreements. This Agreement and the U.S.
Underwriting Agreement 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 herein, will be
validly issued and fully paid and non-assessable; the Shares conform and
will conform to the statements relating thereto contained in the
Prospectus 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, set forth 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 U.S. 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 U.S. Underwriting Agreement), the compliance by the Company
with its obligations hereunder and under the U.S. 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
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constituting or operative document or agreement of the Company or any of
its subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their assets or
properties. 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 to repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
(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 the registration under the 1933 Act of the Shares
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 U.S. Underwriters.
(xiv) Possession of Licenses and Permits. Except as set forth in or
contemplated by the Prospectus with respect to systems under development
and the offering of dial tone service, 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 U.S. 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.
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(xvi) Absence of Proceedings. Except as disclosed in the Prospectus,
there is no action, suit, proceeding, inquiry or investigation before or
by any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries which could reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the properties or assets of
the Company or any of its subsidiaries or the consummation of this
Agreement or the U.S. 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
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Company or any of its subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities.
(xx) Environmental Laws. Except as described in the Prospectus and
except such matters as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment,
relating 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 "Regulation" when considered together
with the statements under the caption "Business--Regulatory Overview" in
the Company's Annual Report on Form 10-K, filed on March 29, 1999, which
is incorporated in the Prospectus by reference, and "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 international version of the
Prospectus under the caption "Certain United States Federal Tax
Considerations for Non-U.S. Holders of Common Stock", insofar as such
statements purport to summarize certain United States federal income and
estate tax consequences of the ownership and dispensation of the Stock 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) Cuba. Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes.
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(xxiv) 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) Representations and Warranties by, and Covenants of, the Selling
Stockholders. Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) Authorizations. All consents, approvals, authorizations and
orders necessary for the execution and delivery by such Selling
Stockholders of this Agreement and the U.S. Underwriting Agreement, and
the Power of Attorney and the Custody Agreement hereinafter referred to,
and for the sale and delivery of the Shares to be sold by such Selling
Stockholders hereunder and under the U.S. Underwriting Agreement, have
been obtained; and such Selling Stockholders has full right, power and
authority to enter into this Agreement, the U.S. Underwriting Agreement,
the Power of Attorney and the Custody Agreement and to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholders
hereunder and under the U.S. Underwriting Agreement.
(ii) Absence of Defaults and Conflicts. The sale of the Shares to be
sold by such Selling Stockholders hereunder and under the U.S.
Underwriting Agreement and the compliance by such Selling Stockholders
with all of the provisions of this Agreement, the U.S. Underwriting
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated have been
duly authorized by all necessary action and do not and will not conflict
with or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any statute or material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which such Selling Stockholder is a party or by which such Selling
Stockholder is bound, or to which any of the property or assets of such
Selling Stockholder is subject, nor will such action result in any
violation of the provisions of the constituting or operative document or
agreement of such Selling Stockholder or any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over such Selling Stockholder or the property of such Selling Stockholder.
(iii) Title to Shares. Such Selling Stockholder has, and immediately
prior to the First Closing Time (as defined in Section 2 hereof) such
Selling Stockholder will have, good and valid title to the Shares to be
sold by such Selling Stockholder hereunder and under the U.S. Underwriting
Agreement, free and clear of all liens, encumbrances, equities or claims;
and, upon delivery of such Shares and payment therefor pursuant hereto and
thereto, good and valid title to such Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several Underwriters or
the U.S. Underwriters, as the case may be.
(iv) No Manipulation or Stabilization. Such Selling Stockholder 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 stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares, or
which has otherwise constituted or will constitute any prohibited bid for
or purchase of the Shares or any related securities.
-9-
(v) Compliance of Preliminary Prospectus, Registration Statement and
Prospectus with the Requirements of the 1933 Act. To the extent that any
statements or omissions made in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholders
expressly for use therein, such Preliminary Prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements of the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the 1933 Act
and the rules and regulations of the Commission thereunder and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(vi) Form W-9. In order to document the Underwriters' compliance
with the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Stockholder will deliver to you prior to or at
the First Closing Time (as hereinafter defined) a properly completed and
executed United States Treasury Department Form W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof).
(vii) Certificates in negotiable form representing all of the Shares
to be sold by such Selling Stockholder hereunder have been placed in
custody under a Custody Agreement, in the form heretofore furnished to you
(the "Custody Agreement"), duly executed and delivered by such Selling
Stockholder to American Stock Transfer and Trust, as custodian (the
"Custodian"), and such Selling Stockholder has duly executed and delivered
a Power of Attorney, in the form heretofore furnished to you (the "Power
of Attorney"), appointing the persons indicated in Schedule C hereto, and
each of them, as such Selling Stockholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this Agreement
on behalf of such Selling Stockholder, to determine the purchase price to
be paid by the Underwriters to the Selling Stockholders as provided in
Section 2 hereof, to authorize the delivery of the Shares to be sold by
such Selling Stockholder hereunder and otherwise to act on behalf of such
Selling Stockholder in connection with the transactions contemplated by
this Agreement and the Custody Agreement.
(viii) The Shares represented by the certificates held in custody
for such Selling Stockholder under the Custody Agreement are subject to
the interests of the Underwriters hereunder; the arrangements made by such
Selling Stockholder for such custody, and the appointment by such Selling
Stockholder of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of the Selling Stockholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Stockholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a partnership
or corporation, by the dissolution of such partnership or corporation, or
by the occurrence of any other event; if any individual Selling
Stockholder or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated, or if
any such partnership or corporation should be dissolved, or if any other
such event should occur, before the delivery of the Shares hereunder,
certificates representing the Shares shall be delivered by or on behalf of
the Selling Stockholders in accordance with the terms and conditions of
this Agreement and of the Custody Agreement; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid as
if such death, incapacity, termination,
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dissolution or other event had not occurred, regardless of whether or not
the Custodian, the Attorneys-in-Fact, or any of them, shall have received
notice of such death, incapacity, termination, dissolution or other event.
(ix) Survival of Selling Stockholders' obligations. The obligations
of the Selling Stockholders hereunder shall not be terminated by operation
of law, whether by dissolution or by the occurrence of any other event; if
the Selling Stockholders should be dissolved, or if any other such event
should occur, before the delivery of the Shares hereunder, certificates
representing the Shares shall be delivered by or on behalf of the Selling
Stockholders in accordance with the terms and conditions of this Agreement
and of the U.S. Underwriting Agreement.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company (or any of its subsidiaries) or of the Selling Stockholders
delivered to the Representatives or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company and the Selling
Stockholders, as the case may be, 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)
each of the Company and the Selling Stockholders agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Company and the Selling Stockholders, at
the purchase price per share of $___, the number of Firm Shares (to be adjusted
by the Representatives so as to eliminate fractional shares) determined by
multiplying the aggregate number of Firm Shares to be sold by the Company and
the Selling Stockholders as set forth opposite their respective names in
Schedule B hereto by a fraction, the numerator of which is the aggregate number
of Firm Shares to be purchased by such Underwriter as set forth opposite the
name of such Underwriter in Schedule A hereto and the denominator of which is
the aggregate number of Firm Shares to be purchased by all of the Underwriters
from the Company and the Selling Stockholders hereunder and (b) in the event and
to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company and the Selling Stockholders who
so elect, agree to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company and
the Selling Stockholders who so elect, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of 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 and the Selling Stockholders who so elect hereby grant to the
Underwriters the right to purchase at their election up to 258,000 Optional
Shares, at the purchase price per share set forth in the paragraph above, 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
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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 Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus.
(c) Closing and Payment. (i) The Shares to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized denominations
and registered in such names as Salomon Brothers may request upon at least
forty-eight hours' prior notice to the Company and the Selling Stockholders
shall be delivered by or on behalf of the Company and the Selling Stockholders
to Salomon Brothers, 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 by wire transfer or certified or official bank check or
checks, payable to the order of the Company and the Custodian, as their
interests may appear, in immediately available (same day) funds. The Company
will cause the certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Closing Time (as
defined below) with respect thereto at the offices of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 10:00 a.m. on ________, 1999
or such other time and date as Salomon Brothers, the Company and the Selling
Stockholders may agree upon in writing, and, with respect to the Optional
Shares, 10:00 a.m. on the date specified by Salomon Brothers in the written
notice given by Salomon Brothers of the Underwriters' election to purchase such
Optional Shares, or such other time and date as Salomon Brothers and the Company
may agree upon in writing. Such time and date for delivery of the Firm Shares is
herein called the "First Closing Time", such time and date for delivery of the
Optional Shares, if not the First Closing Time, is herein called the "Second
Closing Time", and each such time and date for delivery is herein called a
"Closing Time".
(ii) The documents to be delivered at each Closing Time by or on behalf of
the parties hereto pursuant to Section 5 hereof, including the cross receipt for
the Shares and any additional documents requested by the Underwriters pursuant
to Section 5(m) hereof, will be delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the
Shares will be delivered at the Designated Office, all at such Closing Time. A
meeting will be held at the Closing Location at 2:00 p.m. on the New York
Business Day next preceding such Closing Time, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 2
and Section 3(a)(iii) below, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
(iii) It is understood and agreed that each Closing Time under this
Agreement shall occur simultaneously with each Closing Time under the U.S.
Underwriting Agreement.
SECTION 3. Covenants.
(a) Covenants of the Company. The Company covenants with each Underwriter
as follows:
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(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 1933
Act not later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the 1933 Act, and to
provide evidence satisfactory to the Representatives of such timely filing; to
use its best efforts to cause the Registration Statement, if not effective at
the time of execution of this Agreement, to become effective; prior to
termination of the offering of the Shares, to make or file no further amendment
or any supplement to the Registration Statement or Prospectus which shall be
disapproved by the Representatives promptly after reasonable notice thereof; to
advise the Representatives, promptly after it receives notice thereof, of the
time when the Registration Statement or any amendment thereto has been filed or
becomes effective or the Prospectus or any supplement thereto or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof; to advise the Representatives, 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 any Preliminary Prospectus or Prospectus, of
the suspension of the qualification of the Shares 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 Preliminary Prospectus or 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 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. Prior to
12:00 noon on the New York Business Day next succeeding the date of this
Agreement and from time to time, 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 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 1933 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 1933 Act. The Company will advise the
Representatives promptly of any
-13-
proposal 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) Earning Statement. To make generally available to its securityholders
as soon as practicable, but in any event not later than the 30th day following
the end of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement (as defined in Rule 158(c) under
the 1933 Act), an earning statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the 1933 Act and the rules
and regulations thereunder (including, at the option of the Company, Rule 158).
(v) Lock-Up. During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Prospectus,
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 U.S. Underwriting Agreement, any Stock or any securities convertible into or
exchangeable for, Stock (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
mergers, acquisitions and other business combinations; provided that the
recipients of such shares of Common Stock issued pursuant to item (v) above
agree in writing with Salomon Brothers to be bound by the unexpired term of this
agreement not to sell) without the prior written consent of Salomon Brothers.
(vi) Investment Company. Not to be or become, at any time prior to the
expiration of three years after the 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.
(vii) 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).
(viii) Listing. To use its best efforts to qualify the Shares for
inclusion on the National Association of Securities Dealers Automated Quotations
National Market System ("NASDAQ").
(ix) 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 "Use of Proceeds".
-14-
(x) Rule 462(b) Registration Statement. 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 at the time of filing to either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the 1933
Act.
(b) Covenants of the Underwriters. Each Underwriter agrees that:
(i) it is not purchasing any of the Shares for the account of any United
States or Canadian Person;
(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 in the United States or Canada, or to any 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 United States or Canadian Person and
agree that it will not offer or resell, directly or indirectly, any of the
Shares in the United States or Canada, or to any United States or Canadian
Person or to any other dealer who does not so represent and agree;
provided, however, that the foregoing shall not restrict (A) purchases and sales
between the U.S. 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 Salomon Brothers (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 not United States or Canadian Persons who are
investment advisors, or who otherwise exercise investment discretion, and who
are purchasing for the account of any United States or Canadian Person.
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 U.S. Underwriting Agreement; or
(ii) the expiration of a period of 30 days after the Closing Time, unless
(A) the Representatives shall have given notice to the Company and the U.S.
Representatives that the distribution of the Shares by the Underwriters has not
yet been completed, or (B) the U.S. Representatives shall have given notice to
the Company and the International Underwriters that the distribution of the U.S.
Securities by the U.S. Underwriters has not yet been completed. If such notice
by the U.S. 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.
-15-
"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. Each of the Company and the Selling Stockholders covenants
and agrees with one another and 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 1933 Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or reproducing any Agreement
among Underwriters, this Agreement, the U.S. Underwriting Agreement, the
Agreement Between U.S. Underwriters and International Underwriters, the Selling
Agreement, the Blue Sky Memorandum, 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(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey, (iv) all fees and expenses in connection
with inclusion of the Shares on the NASDAQ; (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; (vi) the cost of preparing stock
certificates; (vii) the cost and charges of any transfer agent or registrar and
of DTC; (viii) the fees and disbursements of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to
the Selling Stockholders; 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, 7 and 10(d) 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 Closing
Time, are subject to the accuracy, at and as of such Closing Time, of the
representations and warranties of the Company and the Selling Stockholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by each of the Company and the Selling Stockholders of its covenants
and other obligations hereunder, and to the following further conditions:
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(a) Filing of Prospectus and Effectiveness of Registration Statement. If
the Registration Statement has not become effective prior to execution of this
Agreement, unless the Representatives and the lead managers for the U.S.
Underwriters agree in writing to a later time, the Registration Statement shall
have become effective not later than (i) 6:00 p.m. on the date of determination
of the public offering price, if such determination occurred at or prior to 3:00
p.m. on such date or (ii) 9:30 a.m. on the business day following the day on
which the public offering price was determined, if such determination occurred
after 3:00 p.m. on such date; if filing is required pursuant to Rule 424(b), the
Prospectus shall have been filed with the Commission pursuant to such Rule
within the applicable time period prescribed for such filing by the rules and
regulations under the 1933 Act and in accordance with Section 3(a) hereof; 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 such Closing Time, the
Representatives shall have received the favorable opinions, dated as of such
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel for the Company, and of R.
▇▇▇▇▇ ▇▇▇▇▇▇, Esq., Vice President, General Counsel and Secretary of the Company
in form and substance satisfactory to counsel for the Underwriters, to the
effect set forth in Exhibits A-1 and A-2 hereto, respectively, and to such
further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At such Closing Time, the
Representatives shall have received the favorable opinion, dated as of such
Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, with respect
to the incorporation of the Company, the validity of the Shares being delivered
at such Closing Time, the Registration Statement, the Prospectus and such other
related matters as the Representatives may reasonably request. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal law of
the United States, upon the opinions of counsel satisfactory to the
Underwriters. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Opinion of Counsel for Selling Stockholders. At the First Closing
Time, the Representatives shall have received the favorable opinions, dated as
of such Closing Time, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Selling Stockholders,
to the effect set forth in Exhibit A-3 hereto, and to such further effect as
counsel to the Underwriters may reasonably request.
(e) Officers' Certificates. At such Closing Time, 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 (with respect to subsections (iii) and (iv) below) of
officers of equivalent title and functions of the Selling Stockholders,
respectively, 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)
-17-
there has been no such material adverse change, (iii) the representations and
warranties of the Company and the Selling Stockholders, in each case as
applicable, 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 and the Selling
Stockholders, in each case as applicable, have complied with all agreements and
satisfied all conditions on their 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.
(f) Accountant"s Comfort Letter. On the date of the Prospectus at a time
prior to the execution of this Agreement, and at 10:00 a.m. on the effective
date of any post-effective amendment to the Registration Statement filed
subsequent to the date of this Agreement, the Representatives shall have
received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter or letters dated the respective dates
of delivery thereof, 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.
(g) Bring-down Comfort Letter. At such Closing Time, the Representatives
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of such Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) 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.
(h) 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 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 the 6 1/2% Cumulative Convertible Preferred Stock
and the 14% Senior Exchangeable Redeemable Preferred Stock, which dividend shall
be the customary dividend on such stock and (4) there has been no change or
decrease specified in the letters referred to in Section 5(f) and 5(g) 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 Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(i) 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.
(j) Listing. The Shares to be sold by the Company and the Selling
Stockholders at such Closing Time shall have been included for quotation on
NASDAQ.
-18-
(k) 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.
(l) 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.
(m) Additional Documents. At such Closing Time: (i) the Company and the
Selling Stockholders 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.
(n) 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 such 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 and Selling Stockholders. The Company
agrees to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter, each Selling Stockholder and each
person, if any, who controls any Underwriter or Selling Stockholder within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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 1933 Act,
the 1934 Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares as originally filed or in any
amendment thereof, or in any Preliminary Prospectus or Prospectus (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
-19-
furnished to the Company by or on behalf of any Selling Stockholder or
Underwriter through the Representatives 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
and the Selling Stockholders 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 1933 Act or Section 20 of the 1934 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 Salomon Brothers or only with respect to written information
furnished to the Company by such Selling Stockholder, in each case specifically
for inclusion in the documents referred to in the foregoing indemnity. The
Company acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the Shares, the stabilization legend in block
capital letters on the reverse of the cover page and, under the heading
"Underwriting", (i) the sentences related to concessions and reallowances and
(ii) the paragraph related to stabilization in the Preliminary Prospectus, the
Registration Statement or the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in such Preliminary Prospectus, Registration Statement or Prospectus. The
liability of any Selling Stockholder shall not exceed the product of the number
of Shares sold by such Selling Stockholder and the initial public offering price
of the Shares (less underwriting discount) as set forth in the Prospectus.
(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. 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
-20-
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 and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders 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 and
the Selling Stockholders 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 and the Selling Stockholders
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 and the Selling Stockholders and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover page of the
Prospectus, bear to the aggregate initial offering price of the Shares.
The relative fault of the Company and the Selling Stockholders on the one
hand and the Underwriters on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Selling Stockholders 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 Selling Stockholders 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 (even if the Underwriters were treated as
one entity for such purpose) 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 underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
-21-
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 ▇▇▇▇
▇▇▇) 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 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company or the Selling Stockholders within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 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 or the Selling Stockholders 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 or the Selling Stockholders, and shall
survive delivery of the Shares to the Underwriters.
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 and the Selling Stockholders prior to delivery of and payment for the
Shares, if at any time prior to such time (i) trading in the Company's 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 (exclusive of any supplement thereto).
(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;
-22-
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 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 or the
Selling Stockholders 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 the Representatives
jointly or by Salomon Brothers 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 transmission to the Representatives in care of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to Salomon Brothers
International Limited, Victoria Plaza, 111 Buckingham Palace Road, London, SWIW
OSB England, Attention: U.S. Equity Syndicate Desk; 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; and if to the
Selling Stockholders shall be delivered or sent by mail, telex or facsimile
transmission to ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., c/▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (fax no. (▇▇▇) ▇▇▇-▇▇▇▇); 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 or the Selling
Stockholders by the Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company, the Selling Stockholders 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, the Selling Stockholders 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, the Selling Stockholders 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.
-23-
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, the Company and the Selling
Stockholders. It is understood that your acceptance
-24-
of this letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement Between International 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,
NEXTLINK Communications, Inc.
By__________________________________
Name: R. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By__________________________________
Name:
Title:
As Attorney-in-Fact of the Selling
Stockholders, listed on Schedule B
CONFIRMED AND ACCEPTED,
as of the date first above written:
Salomon Brothers International Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
Bear, ▇▇▇▇▇▇▇ International Limited
Credit Suisse First Boston (Europe) Limited
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
By: Salomon Brothers International Limited
By____________________________________
Name:
Title:
For themselves and as Representatives of the
other Underwriters named in Schedule A hereto.
SCHEDULE A
Number of Optional
Total Number of Shares to be Purchased if
Firm Shares to be Maximum Option
Underwriter Purchased Exercised
----------- --------- ---------
Salomon Brothers International Limited....
▇▇▇▇▇▇▇ ▇▇▇▇▇ International...............
Bear, ▇▇▇▇▇▇▇ International Limited.......
Credit Suisse First Boston (Europe)
Limited.................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ International...............
▇▇▇▇▇▇▇▇▇ Lufkin & ▇▇▇▇▇▇▇▇ International.
Deutsche Bank AG London...................
▇▇▇▇▇▇ Brothers International (Europe)....
PaineWebber International (U.K.) Ltd. ....
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, a divison of ▇▇▇▇
▇▇▇▇▇▇▇▇ Incorporated...................
Pacific Crest Securities Inc. ............
Total................................
Sch A-1
SCHEDULE B
Number of Optional
Total Number of Shares to be Purchased if
Firm Shares to be Maximum Option
Selling Stockholders Purchased Exercised
-------------------- --------- ---------
Alta Communications VI, L.P. ................... 37,752 3,617
Alta-Comm S By S, LLC .......................... 859 82
Columbia Capital Corporation ................... 4,840 0
Providence Equity Partners, L.P. ............... 71,400 6,839
Providence Equity Partners II, L.P. ............ 996 95
Madison Dearborn Capital Partners II, L.P. ..... 96,528 9,247
Prime VIII, L.P. ............................... 16,893 1,618
Venture Fund I, L.P. ........................... 769 0
AT&T Venture Fund II, L.P. ..................... 6,917 0
Special Partners Fund, L.P. .................... 1,170 0
Special Partners Fund International, L.P. ...... 6,516 0
HarbourVest Venture Partners V - Direct
Fund L.P. .................................... 48,265 4,624
Norwest Venture Partners VI, L.P. .............. 48,265 4,624
Excelsior Private Equity Fund II, Inc. ......... 24,132 2,312
Global Private Equity III, L.P. ................ 39,205 3,756
Advent PGGM Global L.P. ........................ 6,033 578
Advent Partners GPE III L.P. ................... 594 57
Advent Partners North America GPE III L.P. ..... 179 17
Advent Partners L.P. ........................... 1,448 139
Digital Media and Communications L.P. .......... 9,045 ▇▇▇
▇▇▇▇▇▇ ▇.▇. .................................... 965 93
Oakstone Ventures L.P. ......................... 3,769 361
Sch B-1
TelAdvent L.P. ............................... 1,506 144
Formus Communications Inc. ................... 48,265 4,624
Spectrum Equity Investors, II, L.P. .......... 48,265 4,624
Chase Venture Capital Associates, L.P. ....... 96,528 9,247
CEA Capital Partners USA, L.P. ............... 18,444 1,767
CEA Capital Partners USA, CI, L.P. ........... 5,688 545
Battery Ventures IV, L.P. .................... 23,770 2,277
Battery Investment Partners IV, LLC .......... 362 35
Media/Communications Partners III L.P. ....... 22,926 2,196
M/C Investors LLC ............................ 1,207 116
Tigris Rivanna LLC ........................... 5,954 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ .............................. 20,452 0
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ............................. 1,349 0
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ............................. 1,143 0
▇▇▇▇ ▇. ▇▇▇▇▇ ................................ 359 0
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ........................... 380 0
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ............................... 381 0
▇▇▇▇▇ ▇▇▇▇ ................................... 71 0
------- ------
Total .................................. 723,590 64,500
======= ======
Sch B-2
SCHEDULE C
The following person has been appointed as Attorneys-in-Fact for the Selling
Stockholders pursuant to a Power of Attorney.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Sch C-1
Exhibit A-1
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation under the laws of the State of Delaware.
(ii) The Company 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 the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus as of the dates indicated therein; the shares
of issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) Each Designated Subsidiary has been duly formed and is validly
existing as a corporation, limited liability company or limited partnership in
good standing, where applicable, under the laws of the jurisdiction of its
formation, and each such limited liability company has the power and authority
under the Washington limited liability company act and its limited liability
company agreement, and each such limited partnership has the partnership power
and authority, to own, lease and operate its properties and to conduct its
business as described in the Prospectus; all of the issued and outstanding
shares, membership interests or partnership interests of each Designated
Subsidiary has been duly authorized and validly issued and, except as otherwise
set forth in the Prospectus in respect of the minority interests described
therein, is owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(vi) The Underwriting Agreement and the U.S. Underwriting Agreement have
been duly authorized, executed and delivered by the Company.
(vii) The Shares being delivered at each Closing Time, and when delivered
and paid for in accordance with the Underwriting Agreement and the U.S.
Underwriting Agreement, will have been duly authorized and validly issued and
fully paid and non-assessable; and the Shares conform in all material respects
to the description of Stock contained in the Prospectus.
(viii) The issuance of the Shares being delivered at each Closing Time is
not subject to any statutory preemptive or other similar rights of any
securityholder of the Company or, to such counsel's knowledge, any other
preemptive or other similar rights of any security holder of the Company.
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(ix) The information in the Prospectus under the captions "Regulation" and
"Underwriting", to the extent that it constitutes matters of law, summaries of
legal matters, or legal conclusions, has been reviewed by us and is correct in
all material respects.
(x) All descriptions in the Prospectus of contracts and other documents to
which the Company or any of its subsidiaries are a party are accurate in all
material respects; to the best of our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments that would be required to be described in the Prospectus that are
not described or referred to in the Prospectus other than those described or
referred to therein and the descriptions thereof or references thereto are
correct in all material respects.
(xi) To the best knowledge of such counsel, neither the Company nor any of
its Designated Subsidiaries is in violation of its charter or by-laws or other
constituting or operative document or agreement and, to the best of our
knowledge, no default by the Company or any of its subsidiaries exists in the
due performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Prospectus.
(xii) 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 under the Underwriting Agreement or the U.S. Underwriting Agreement,
in connection with the offering, issuance or sale of the Shares hereunder or the
consummation of the actions contemplated by the Underwriting Agreement, except
the registration under the 1933 Act of the Shares, 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 U.S. Underwriters.
(xiii) The issue and sale of the Shares, the execution, delivery and
performance of the Underwriting Agreement, the U.S. 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 U.S.
Underwriting Agreement and the use of proceeds from the sale of the Shares as
described in the Prospectus under the caption "Use of Proceeds"), the compliance
by the Company with its obligations hereunder and under the U.S. Underwriting
Agreement have been duly authorized by all necessary corporate 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
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 any contract, indenture, mortgage, deed of trust, loan
or credit agreement, note, lease, or any other agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or assets
of the Company or any subsidiaries thereof is subject, 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
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instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their assets or properties.
(xiv) The Company is not, and upon the issuance and sale of the Shares and
the application of the net proceeds therefrom will not be, an "investment
company" or an entity "controlled" by an "investment company," as such terms are
defined in the 1940 Act.
(xv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to each Closing
Time (other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the 1933 Act and the rules and regulations
thereunder; although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, except for those referred to in subsection (ix) of
this opinion, they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to such Closing Time (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Closing Time (other than
the financial statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading or that,
as of such Closing Time, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made by the Company prior to such
Closing Time (other than the financial statements and related schedules therein,
as to which such counsel need express no opinion) contains an untrue statement
of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus which
are not filed or described as required.
In rendering such opinion, such counsel (A) may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials and (B)
may state that they express no opinion as to the laws of any jurisdiction
outside the United States. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF R. ▇▇▇▇▇ ▇▇▇▇▇▇, ESQ.
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) There is not pending or, to the best of my knowledge, threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary thereof is a party, or to which the property of the Company or any
subsidiary thereof is subject, before or brought by any court or governmental
agency or body, which could reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Underwriting Agreement or the International
Underwriting Agreement or the performance by the Company of its obligations
thereunder or the transactions contemplated by the Prospectus.
(ii) To the best of my knowledge and except as set forth in or
contemplated by the Prospectus with respect to systems under development, (a)
each of the Company and its Designated Subsidiaries has all Authorizations of
and from, and has made all declarations and filings with, all Federal, state,
local and other governmental authorities, all self-regulatory organizations and
all courts and other tribunals, which are 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, reasonably be expected to result in a Material Adverse Effect,
(b) all such Authorizations are in full force and effect with respect to the
Company and its Designated Subsidiaries, (c) no event has occurred that permits,
or after notice or lapse of time could permit, the revocation, termination or
modification of any such Authorization and (d) 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.
(iii) To the best of my knowledge, neither the execution and delivery of
the Underwriting Agreement or the International Underwriting Agreement, nor the
consummation by the Company of the transactions contemplated hereby or thereby
will cause any suspension, revocation, impairment, forfeiture, nonrenewal or
termination of any Authorization.
In rendering such opinion, such counsel (A) may rely as to matters of fact
(but not as to legal conclusions), to the extent he deems proper, on
certificates of responsible officers of the Company and public officials and (B)
may state that he expresses no opinion as to the laws of any jurisdiction
outside the United States. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO SECTION 5(d)
(i) The Underwriting Agreement and the International Underwriting
Agreement have been duly executed and delivered by or on behalf of the Selling
Stockholders; and the sale of the Shares to be sold by such Selling Stockholders
thereunder and the compliance by such Selling Stockholders with all of the
provisions of the Underwriting Agreement and the International Underwriting
Agreement, and the consummation of the transactions therein contemplated will
not conflict with or result in a breach or violation of any terms or provisions
of, or constitute a default under, any statute or material obligation under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Selling Stockholders is a party
or by which such Selling Stockholders is bound, or to which any of the property
or assets of such Selling Stockholders is subject, nor will such action result
in any violation of the provisions of the constituting or operative document or
agreement of such Selling Stockholders or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or body
having jurisdiction over such Selling Stockholders, except in the case of a
certain court order a consent is required and has been obtained.
(ii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated by the Underwriting Agreement and the International Underwriting
Agreement in connection with Shares to be sold by such Selling Stockholders
thereunder, except such as have been duly obtained and are in full force and
effect and such as may be required under federal law or state securities or Blue
Sky laws of the State of Washington in connection with the purchase and
distribution of such Shares by the Underwriters or the International
Underwriters.
(iii) To such counsel's knowledge, immediately prior to the First Closing
Time such Selling Stockholders had good and valid title to the Shares to be sold
at such First Closing Time by such Selling Stockholders under the Underwriting
Agreement and the International Underwriting Agreement, free and clear of all
liens, encumbrances, equities or claims, and full right, power and authority to
sell assign, transfer and deliver the Shares to be sold by such Selling
Stockholders thereunder.
(iv) To such counsel's knowledge, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, has been
transferred to each of the several Underwriters or International Underwriters,
as the case may be, who have purchased such Shares in good faith and without
notice of any such lien, encumbrance, equity or claim or any other adverse claim
within the meaning of the Uniform Commercial Code.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the State of Delaware and
in rendering the opinion in subparagraphs (iii) and (iv) such counsel may rely
upon a certificate of such Selling Stockholders in respect of matters of fact as
to ownership of, and liens, encumbrances, equities or claims on the Shares sold
by such Selling Stockholders, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such certificate.
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