Exhibit 1.1
360NETWORKS INC.
SUBORDINATE VOTING SHARES
------------
UNDERWRITING AGREEMENT
----------------------
April __, 2000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation,
Credit Suisse First Boston Corporation,
TD Securities Inc.,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Chase Securities Inc.,
RBC Dominion Securities Inc.
Warburg Dillon Read LLC
As Representatives of the several Underwriters and Sub-Underwriters
named in Schedule A hereto,
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
360NETWORKS INC., a company continued under the laws of Nova Scotia,
Canada (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") an aggregate of 44,625,000 Subordinate Voting Shares and, at the
election of the Underwriters, up to 6,941,250 additional Subordinate Voting
Shares of the Company and Ledcor Limited Partnership (the "SELLING SHAREHOLDER")
proposes, subject to the terms and conditions stated herein, to sell to the
Underwriters an aggregate of 1,650,000 Subordinate Voting Shares. The aggregate
of 46,275,000 shares to be sold by the Company and the Selling Shareholder is
herein called the "FIRM SHARES" and the aggregate of 6,941,250 additional shares
to be sold by the Company is herein called the "OPTIONAL SHARES". The Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof are herein collectively called the "SHARES".
1. (a) The Company represents and warrants to, and agrees with,
each of the Underwriters and Sub-Underwriters (as defined in Section 2(b))
and the Selling Shareholder that:
(i) A registration statement on Form F-1 (File No. 33-95621)
(the "INITIAL REGISTRATION STATEMENT") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"COMMISSION"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, 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 "ACT"), which became effective upon filing, no other
document with respect to the Initial Registration Statement has
heretofore been filed with the Commission; and no stop order suspending
the effectiveness of the Initial Registration Statement, 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 Act is hereinafter called a "PRELIMINARY
PROSPECTUS"; the various parts of the Initial Registration Statement
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 Commission pursuant to Rule 424(b)
under the Act in accordance with Section 4(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as
amended at the time such part of the Initial Registration Statement
became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "REGISTRATION STATEMENT"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, is hereinafter called the "PROSPECTUS";
(ii) 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 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 ▇▇▇▇▇▇▇, Sachs & Co. or ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") expressly for use therein or by
the Selling Shareholder expressly for use in the preparation of the
answers therein to Items 7 and 11(item 11 of form 20F) of Form F-1;
(iii) 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 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or DLJ expressly for use therein or by the
Selling Shareholder expressly for use in the preparation of the answers
therein to Items 7 and 11(item 11 of form 20F) of Form F-1;
(iv) The preliminary prospectus dated January 28, 2000 (the
"CANADIAN PRELIMINARY PROSPECTUS") and the amended preliminary
prospectus dated March 22, 2000 (the "AMENDED CANADIAN PRELIMINARY
PROSPECTUS"), together with the other
2
required documentation supplemental thereto, have been filed in the
English language and, where applicable, the French language with the
applicable securities regulatory authority (each, a "CANADIAN
COMMISSION") in each of the provinces of Canada (collectively, the
"CANADIAN JURISDICTIONS") in conformity with applicable Canadian
Securities Laws (as defined below) and receipts for each of the
Canadian Preliminary Prospectus and the Amended Canadian Preliminary
Prospectus have been obtained from or on behalf of each of the Canadian
Commissions. "CANADIAN SECURITIES LAWS" means the applicable securities
laws of each of the Canadian Jurisdictions and the respective rules,
regulations and published policies thereunder;
(v) The Canadian Preliminary Prospectus and the Amended
Canadian Preliminary Prospectus, as of the respective times of filing
thereof, (i) did not include a misrepresentation, (ii) constituted
full, true and plain disclosure of all material facts relating to the
Shares, and to the Company and its subsidiaries taken as a whole, (iii)
did not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in 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 ▇▇▇▇▇▇▇, Sachs & Co. and DLJ expressly for
use therein; and (iv) conformed in all material respects to the
requirements of the Canadian Securities Laws in each of the Canadian
Jurisdictions;
(vi) If the Company has elected to use the rules and
procedures of Canadian Securities Laws for the pricing of securities
after the final receipt for a prospectus has been obtained (the "PREP
PROCEDURES") in connection with the distribution of the Shares in
Canada, the Company (A) has obtained the exemption orders or rulings
issued by the Canadian Commissions permitting the Company to use the
PREP Procedures in connection with the distribution of the Shares in
Canada (the "PREP EXEMPTION ORDERS"); (B) has prepared and filed in the
English language and, where applicable, the French language with each
of the Canadian Commissions the final prospectus dated April __, 2000
(the "CANADIAN FINAL PROSPECTUS") omitting the information, if any,
that is omitted from the Canadian Prospectus (as defined) in accordance
with the PREP Procedures and the PREP Exemption Orders but that is
deemed under the PREP Procedures and the PREP Exemption Orders to be
incorporated by reference into the Canadian Prospectus as of the date
of the Canadian Prospectus (the "PREP INFORMATION"); (C) will prepare
and file in the English language and, where applicable, the French
language, promptly after pricing of the Firm Shares with each of the
Canadian Commissions a supplemented Canadian Final Prospectus setting
forth the PREP Information; and (D) the Company shall fulfill and
comply with all Canadian Securities Laws to enable the Shares to be
lawfully distributed to the public in each of the Canadian
Jurisdictions;
(vii) No order preventing or suspending the use of the
Canadian Preliminary Prospectus or the Amended Canadian Preliminary
Prospectus has been issued by any of the Canadian Commissions;
(viii) The Canadian Prospectus (as defined below) (and any
amendments or supplements thereto), as of the time of filing thereof,
the Time of Delivery (as defined in Section 3(a)) and any settlement
date (i) will conform in all material respects to the
3
requirements of the applicable Canadian Securities Laws in each of the
Canadian Jurisdictions, (ii) will not include a misrepresentation,
(iii) will constitute full, true and plain disclosure of all material
facts relating to the Shares, and to the Company and its subsidiaries
taken as a whole and (iv) will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in 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 ▇▇▇▇▇▇▇,
Sachs & Co. and DLJ expressly for use therein. "CANADIAN PROSPECTUS"
means the supplemented Canadian Final Prospectus, incorporating the
PREP Information, to be dated April __, 2000 (in both the English and
French languages unless the context indicates otherwise) used in Canada
relating to the Shares or, if the Company does not elect to use the
PREP Procedures in connection with the distribution of the Shares in
Canada, means the Canadian Final Prospectus;
(ix) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus and the Canadian Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus and the Canadian
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement, the Prospectus and the Canadian
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus and the Canadian Prospectus;
(x) The entities listed on Schedule B hereto are the only
subsidiaries, direct or indirect, of the Company (collectively, the
"SUBSIDIARIES"). The only Subsidiaries that are material for purposes
for this Agreement (the "MATERIAL SUBSIDIARIES") are listed on Schedule
C attached hereto. Each of the Subsidiaries which is not a Material
Subsidiary carries on no active business. All of the outstanding shares
of capital stock of each of the Company's Material Subsidiaries and WFI
Urbanlink Ltd. ("Urbanlink"), 360 Urbanlink, Urbanlink Holdings Ltd.
("CARRIER HOLDCO") and Urbanlink Equipment Ltd. (collectively, the
"URBANLINK COMPANIES") have been duly authorized and validly issued and
are fully paid and non-assessable, and, except for Ledcom Holdings
Ltd., Carrier Holdco, Urbanlink and Urbanlink Equipment Ltd. are owned
by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien
encumbrance, or adverse interest of any nature (each, a "LIEN"). Ledcom
Holdings Ltd. is owned 50% by the Company and 50% by Ledcor Inc., in
the case of the Company, directly or indirectly, through one or more
subsidiaries, free and clear of any Lien except for the security
interest granted to Ledcor Inc. pursuant to the Unanimous Shareholders
Agreement, dated as of December 1, 1998, by and among Worldwide Fiber
Communications Ltd., Ledcor Inc., Ledcor Industries Limited and Ledcor
Holdings Ltd. Each of Urbanlink and Urbanlink Equipment Ltd. is owned
100% by Carrier Holdco, free and clear of any Lien, the voting
securities of Carrier Holdco are owned 33 1/3% by the Company and 66
2/3% by Worldwide Fiber Holdings Ltd. ("WFH"), and the
4
remaining equity securities of Carrier Holdco are owned 51% by the
Company and 49% by WFH, in each case free and clear of any Lien;
(xi) The Company, its Material Subsidiaries and each of the
Urbanlink Companies have good and marketable title to all real property
and good title to all personal property owned by them which is material
to the business of the Company, its Material Subsidiaries and
Urbanlink, in each case free and clear of all Liens and defects, except
such as are described in the Prospectus and the Canadian Prospectus or
such as do not materially affect the value of such property taken as a
whole and do not materially interfere with the use made and proposed to
be made of such property by the Company, its Material Subsidiaries
taken as a whole and Urbanlink and any real property and buildings held
under lease by the Company, its Material Subsidiaries and Urbanlink are
held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company,
its subsidiaries and Urbanlink, in each case except as described in the
Prospectus and the Canadian Prospectus;
(xii) Each of the Company, its subsidiaries and each of the
Urbanlink Companies has been duly organized, is validly existing as a
corporation or limited liability company, as applicable, in good
standing under the laws of its jurisdiction of incorporation,
organization, amalgamation or continuance and has the requisite,
corporate or other, power and authority to carry on its business as
described in the Prospectus and the Canadian Prospectus, and to own,
lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation, partnership or limited
liability company, as applicable, authorized to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on
the business, prospects, financial condition or results of operations
of the Company, its subsidiaries and Urbanlink, taken as a whole (a
"MATERIAL ADVERSE EFFECT");
(xiii) On completion of the offering, the Company will have
authorized capital as set forth in the Prospectus and the Canadian
Prospectus, and all of the issued shares in the capital of the Company
("STOCK") will be duly and validly authorized and issued as fully paid
and non-assessable and conform to the description of the Stock
contained in the Prospectus and the Canadian Prospectus;
(xiv) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly allotted and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable and, at
the Time of Delivery (as defined in Section 3(a)), will conform to the
description of the Shares contained in the Prospectus and the Canadian
Prospectus;
(xv) The execution and delivery of this Agreement and the
transfer restriction agreement to be entered into on or before the
First Time of Delivery among the Company, WFH and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Montreal Trust Company of Canada (the "TRANSFER RESTRICTION
AGREEMENT"), the establishment and implementation of the Canadian
Telecommunications Arrangement (as described in the Canadian
Prospectus), the issue and sale of the Shares to be sold by the Company
and the compliance by the Company and, if applicable, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and WFH with all of
5
the provisions of this Agreement and the Transfer Restriction Agreement
and the consummation of the transactions herein and therein
contemplated will not (a) require any consent, approval, authorization
or other order of, or qualification with, any court or governmental
body or agency (except the registration under the Act of the Shares and
such as may be required or previously obtained under the securities or
Blue Sky laws of the various states or the Canadian Securities Laws)
other than consents, approvals, authorizations or other orders of, or
qualifications with, any court or governmental body or agency the
failure of which to be obtained would not, in the aggregate, have a
Material Adverse Effect, (b) conflict with or constitute a breach of
any of the terms or provisions of, or a default under, the Memorandum
of Association or Articles of Association of the Company, WFH or any of
the Material Subsidiaries or any of the Urbanlink Companies or any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company, and its subsidiaries, taken
as a whole, to which the Company, or WFH or any of its subsidiaries or
the Urbanlink Companies is a party or by which the Company or WFH or
any of its subsidiaries or the Urbanlink Companies or their respective
property is bound, except those violations or conflicts which would
not, in the aggregate, have a Material Adverse Effect, (c) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, WFH, any of the Material Subsidiaries or
the Urbanlink Companies or their respective property, (d) result in the
imposition or creation of (or the obligation to create or impose) a
Lien under, any agreement or instrument to which the Company, WFH, any
of the Material Subsidiaries or the Urbanlink Companies is a party or
by which the Company, WFH, any of their subsidiaries or the Urbanlink
Companies or their respective property is bound except as would not
have a Material Adverse Effect, or (e) result in the termination,
suspension or revocation of any Authorization (as defined below) of the
Company, WFH or any of the Material Subsidiaries or the Urbanlink
Companies or result in any other impairment of the rights of the holder
of any such Authorization except such terminations, suspensions,
revocations or impairments as would not have a Material Adverse Effect;
(xvi) None of the Company, or any of the Company's Material
Subsidiaries or the Urbanlink Companies is in violation of its
respective (a) articles or by-laws or (b) Memorandum of Association or
Articles of Association or in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken
as a whole, to which the Company, Urbanlink or any of the Company's
subsidiaries is a party or by which the Company, Urbanlink or any of
the Company's subsidiaries or their respective property is bound,
except violations or defaults which would not, in the aggregate, have a
Material Adverse Effect;
(xvii) The statements set forth in the Prospectus and the
Canadian Prospectus under the captions "Description of our Capital
Stock" and "Description of Capital Stock and Share Capital
Reorganization", insofar as they purport to constitute a summary of the
terms of the Stock, under the caption "Material United States and
Canadian Income Tax Considerations", "Relationships and Related Party
Transactions", "Description of Indebtedness" and under the caption
"Underwriting", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and
fair;
6
(xviii) Other than as set forth in the Prospectus or the
Canadian Prospectus, there are no legal or governmental proceedings
pending or, to the best of the Company's knowledge, threatened to which
the Company or any of its Material Subsidiaries or the Urbanlink
Companies is or could be a party or to which any of their respective
property is or could be subject, which might result, singly or in the
aggregate, in a Material Adverse Effect or materially and adversely
affect the ability of the Company or any of its subsidiaries to perform
its obligations under this Agreement, to consummate the transactions
contemplated hereby or to establish and implement the Canadian
Telecommunications Arrangement;
(xix) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company",
as such term is defined in the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT");
(xx) The accountants, PricewaterhouseCoopers LLP and Deloitte
& Touche LLP, that have certified the financial statements and
supporting schedules included in the Prospectus and the Canadian
Prospectus are independent public accountants with respect to the
Company and its predecessor, as required by the Act and the Exchange
Act and the rules and regulations thereunder and are independent with
respect to the Company within the meaning of the Companies Act (Nova
Scotia). To the best knowledge of the Company, the historical financial
statements and PRO FORMA financial information, together with related
schedules and notes, set forth in the Prospectus and the Canadian
Prospectus comply as to form in all material respects with the
requirements applicable to registration statements on Form F-1 under
the Act and the Canadian Securities Laws, respectively;
(xxi) (i) There are no restrictions on the corporate power and
capacity of the Company and, to the knowledge of the Company, of WFH,
to enter into this Agreement and the Transfer Restriction Agreement, to
issue and sell the Shares, or to carry out its obligations hereunder
and thereunder; (ii) the execution and delivery of this Agreement and
the Transfer Restriction Agreement and the consummation at the Time of
Delivery (as defined in Section 3(a)) of the transactions contemplated
herein and therein and the establishment and implementation of the
Canadian Telecommunications Arrangement have been duly authorized by
all necessary corporate action on the part of the Company and, to
knowledge of the Company, of WFH; and (iii) when duly executed and
delivered by each of the Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and WFH, the
Transfer Restriction Agreement will constitute a valid and binding
obligation of the Company, and to the knowledge of the Company, of each
of WFH and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and will be enforceable against the
Company, and to the knowledge of the Company, of each of WFH and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, transfer and other laws relating to or affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or
in equity);
(xxii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xxiii) The listing of the Shares on The Toronto Stock
Exchange has been approved by such exchange subject only to filing of
documents and evidence of
7
satisfactory distribution in accordance with the requirements of such
exchange on or before July 11, 2000. The Nasdaq Stock Market, Inc. has
conditionally approved the Shares for listing on the Nasdaq National
Market, subject to compliance with only customary listing conditions.
The definitive form of certificate for the Shares has been duly
approved and adopted by the Company and complies with the provisions of
the Companies Act (Nova Scotia) and the requirements of The Toronto
Stock Exchange;
(xxiv) Montreal Trust Company of Canada at its principal
offices in Toronto, and Vancouver and HSBC Bank USA at its principal
offices in New York have been duly appointed as the transfer agent and
registrar for the Company's Subordinate Voting Shares in Canada and the
United States, respectively;
(xxv) Except for withholding tax eligible on any amount paid
or credited, or deemed to be paid or credited, to a non-resident person
as, on account for, or in lieu of payment of, or in satisfaction of a
dividend, no stamp duty, registration or documentary taxes, duties or
similar charges are payable to the Canadian government or to any
political subdivision or taxing authority thereof or therein in
connection with (A) the issuance, sale and delivery by the Company and
the Selling Shareholder to or for the respective accounts of the
Underwriters of the Shares, (B) the sale and delivery outside Canada by
the Underwriters of the Shares to the initial purchasers thereof in the
manner contemplated in this Agreement, or (C) the payment or crediting
by the Company or the Selling Shareholder of any commission or fee to
or for the respective account of any Underwriter who is not resident in
Canada, provided that a commission or fee is payable in respect of
services rendered by such Underwriter outside of Canada;
(xxvi) No goods and services tax imposed under the federal
laws of Canada will be collectible by an Underwriter in respect of the
payment or crediting of any discount, commission or fee as contemplated
by this Agreement to any Underwriter, provided that any such discount,
commission or fee is payable in respect of services performed by such
Underwriter wholly outside of Canada;
(xxvii) Except as disclosed in the Prospectus and the Canadian
Prospectus, none of the Company, any of the Company's Material
Subsidiaries or the Urbanlink Companies is a party or subject to the
provision of any injunction, judgment, decree or order of any court,
regulatory body, administrative agency or other governmental body
except as would not have a Material Adverse Effect;
(xxviii) The Company, Urbanlink and each of the Company's
Material Subsidiaries is in compliance with all applicable statutes,
laws, ordinances, administrative or governmental rules and regulations
of the jurisdictions in which it is conducting its business except
where a failure to be in such compliance would not have a Material
Adverse Effect;
(xxix) Except as discussed in the Prospectus or the Canadian
Prospectus, neither the Company nor any of its Material Subsidiaries
has violated any foreign, federal, state, provincial or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), any provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and
provisions of any federal or provincial pension standards legislation
(or rules, regulations and
8
administration policies thereunder) in Canada, or any provisions of the
Foreign Corrupt Practices Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a Material Adverse Effect;
(xxx) Except as described in the Prospectus or the Canadian
Prospectus, there are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up (including, without
limitation, to remediate any substance which exceeds decommissioning,
remediation or similar guidelines, standards or criteria under
Environmental Laws or applied by governmental authorities acting under
Environmental Laws), closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on
operating activities and any potential liabilities to third parties or
as a result of government action) which would, singly or in the
aggregate, have a Material Adverse Effect;
(xxxi) Except as disclosed in the Prospectus and the Canadian
Prospectus, each of the Company, its Material Subsidiaries and the
Urbanlink Companies has all permits, licenses, certificates, consents,
exemptions, waivers, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and
notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals,
including without limitation, under any applicable Environmental Laws,
as are necessary to own, lease, license and operate its respective
properties and to conduct its business except where the failure to have
any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Except as
disclosed in the Prospectus and the Canadian Prospectus, each such
Authorization is valid and in full force and effect and each of the
Company and its Material Subsidiaries is in compliance with all the
terms and conditions thereof and with the rules and regulations of the
authorities and governing bodies having jurisdiction with respect
thereto except where failure to comply would not have a Material
Adverse Effect; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would
allow, revocation, suspension or termination of any such Authorization
or results or, after notice or lapse of time or both, would result in
any other impairment of the rights of the holder of any such
Authorization except where such event would not have a Material Adverse
Affect; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its Material Subsidiaries except as
would not, singly or in the aggregate, have a Material Adverse Effect;
(xxxii) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Act (i) has imposed (or has informed the Company that it is
considering imposing) any condition (financial or otherwise) on the
Company's retaining any rating assigned to the Company, any securities
of the Company or (ii) has indicated to the Company that it is
considering (a) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of
the possible change in, any rating so assigned or (b) any change in the
outlook for any rating of the Company, or any securities of the
Company;
(xxxiii) Since the respective dates as of which information is
given in the Prospectus and the Canadian Prospectus other than as set
forth in the Prospectus and
9
the Canadian Prospectus, respectively, (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development
involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii)
there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or
in the long-term debt of the Company or any of its subsidiaries and
(iii) none of the Company, Urbanlink or any of the Company's
subsidiaries has incurred any material liability or obligation, direct
or contingent;
(xxxiv) The Company is a "foreign issuer" as defined in Rule
902 under the Act;
(xxxv) The Company and each of its Canadian subsidiaries as
set forth in Schedule D, Urbanlink and Carrier Holdco (collectively,
the "CANADIAN COMPANIES") hold all Canadian Radio-television and
Telecommunications Commission ("CRTC") and Industry Canada licenses or
authorizations and possess adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by them, other than those the
absence of which could not reasonably be expected to, individually or
in the aggregate, have a Material Adverse Effect and have not received
any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined
adversely, could reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect;
(xxxvi) The Canadian Telecommunications Arrangement (as
described in the Prospectus and the Canadian Prospectus) including the
execution, delivery and performance by the parties thereto of (i) the
Reseller Agreement dated - , 2000 between Urbanlink, the Company and
Worldwide Fiber Network Services Ltd. ("WF Services"), (ii) the
Co-Development Agreement dated - , 2000 between the Company and
Urbanlink, (iii) the Definitive Agreement dated - , 2000 between
Urbanlink and the Company, (iv) the Shareholders Agreement dated - ,
2000 between Carrier Holdco, Urbanlink, the Company, 360 Urbanlink Ltd.
and WFH, (v) the Capacity Purchase Agreement dated - , 2000 between
Urbanlink and WF Services, (vi) the Fibre Optic Maintenance Agreement
dated - , 2000 between Urbanlink and WF Services, (vii) the Roll-Over
Agreement dated - , 2000 between 360 Urbanlink Ltd. and Ledcor
Communications Ltd., (viii) the Roll-Over Agreement dated - , 2000
between 360 Urbanlink Ltd. and WFI-CN Fibre Inc., (ix) the Roll-Over
Agreement dated - , 2000 between 360 Urbanlink Ltd. and Worldwide Fiber
(F.O.T.S.) No. 3, Ltd., (x) the Roll-Over Agreement dated - , 2000
between 360 Urbanlink Ltd. and WF Services, (xi) the Roll-Over
Agreement dated - , 2000 between 360 Urbanlink Ltd. and Worldwide Fiber
Networks Ltd., (xii) the Roll-Over Agreement dated - , 2000 between
Carrier Holdco and 360 Urbanlink Ltd., (xiii) the Roll-Over Agreement
dated - , 2000 between Carrier Holdco and WFH, (xiv) the Asset Purchase
Agreement dated - , 2000 between Urbanlink and Ledcor Communications
Ltd., (xv) the Asset Purchase Agreement dated - , 2000 between WFI-CN
Fibre Inc. and Ledcor ▇▇▇▇▇ Inc., (xvi) the Asset Purchase Agreement
dated - , 2000 between Urbanlink and WF Services, (xvii) the Asset
Purchase Agreement dated - , 2000 between Urbanlink Equipment Ltd. and
WF Services, (xviii) the Asset Purchase Agreement dated - , 2000
between Urbanlink and WFI-CN Fibre Inc., (xvix) the Asset Purchase
Agreement dated - , 2000 between Urbanlink and Ledcor Communications
Ltd., (xx) the Asset Purchase Agreement dated
10
- , 2000 between Urbanlink and Worldwide Fiber (F.O.T.S.) No. 3, Ltd.,
(xxi) the Asset Purchase Agreement dated - , 2000 between Urbanlink and
WFI-CN Fibre Inc., (xxii) the Asset Purchase Agreement dated - , 2000
between WFI-CN Fibre Inc. and Ledcor Communications Ltd., (xxiii) the
Asset Purchase Agreement dated - , 2000 between WFI-CN Fibre Inc. and
Ledcor ▇▇▇▇▇ Inc. and (xxiv) the Asset Purchase Agreement dated - ,
2000 between WFI-CN Fibre Inc. and Ledcor Communications Ltd. will not
violate or conflict with any provisions of the Telecommunications Act
or the Ownership Regulations (as defined below) or any applicable law,
rule, regulation, judgment, decision, order or decree of any court or
any governmental body or agency having jurisdiction over any of the
Canadian Companies and will not result in any tax or other consequence
to the Company, actual or contingent, which will have a Material
Adverse Effect;
(xxxvii) (i) Urbanlink is eligible to operate as a
telecommunications common carrier in Canada, as defined under and in
accordance with the Telecommunications Act (Canada) (the
"TELECOMMUNICATIONS ACT") and the Canadian Telecommunications Common
Carrier Ownership and Control Regulations (the "OWNERSHIP
Regulations"); (ii) none of the Canadian Companies violates the
prohibition contained in subsection 16(4) of the Telecommunications Act
against operating in Canada as a telecommunications common carrier when
ineligible to do so; (iii) control of Urbanlink is not exercised by any
person(s) that is (are) not Canadian, in accordance with the meanings
ascribed to the term "control" under the Telecommunications Act and the
term "Canadian" under the Ownership Regulations; and (iv) the Canadian
Companies are not in violation of any judgment, decree, order, writ,
law, statute, rule or regulation rendered or enacted in Canada
respecting telecommunications and the regulation within Canada of
telecommunications common carriers, as defined in the
Telecommunications Act, applicable to the Canadian Companies, or any
interpretation or policy relating thereto known to be applicable by and
to them;
(xxxviii)(i) Not less than eighty percent of the members of
the board of directors of Urbanlink are individual Canadians, as
defined under the Ownership Regulations; (ii) Canadians, as defined
under the Ownership Regulations, beneficially own, directly or
indirectly, in the aggregate and otherwise than by way of security
only, not less than eighty percent of the issued and outstanding voting
shares, as defined under the Ownership Regulations, of Urbanlink; (iii)
Carrier Holdco, in respect of its ownership of and control over
Urbanlink is a carrier holding corporation, as defined under the
Ownership Regulations; and (iv) Carrier Holdco is a carrier holding
corporation that is a qualified corporation, as defined under the
Ownership Regulations;
(xxxix) With the exception of Urbanlink, no other Canadian
Company operates in Canada as a telecommunications common carrier as
that term is defined in the Telecommunications Act;
(xl) Except as disclosed in the Prospectus, neither the
Company nor its subsidiaries is currently, nor will the conduct of its
business as described in the Prospectus cause it to be subject to the
provisions of the Communications Act of 1934, as amended by the
Telecommunications Act of 1996 (the "COMMUNICATIONS Act") or to any
rules, regulations and policies of the Federal Communications
Commission (the "FCC") related hereto;
11
(xli) The Company and its Material Subsidiaries are in
compliance with all federal, state and local telecommunications laws,
rules, regulations and policies (i) in the United States to which they
are subject, including the Communications Act and the related rules,
regulations and policies of the FCC except as would not have a Material
Adverse Effect and (ii) in Europe to which they are subject, including
the Full Competition Directive, the Licensing Directive, and the
Interconnection Directive and the related rules, regulations and
policies of each of the member states of the European Union except as
would not have a Material Adverse Effect;
(xlii) The Company and its subsidiaries, and as of the First
Time of Delivery (as defined in Section 3(a)) Urbanlink will, own or
possess, or can acquire on reasonable terms, all 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 and trade names ("INTELLECTUAL PROPERTY") currently employed by
them in connection with the business now operated by them except where
the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of such intellectual
property which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect;
(xliii) Except as disclosed in the Prospectus and the Canadian
Prospectus, no relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries or affiliates on the one
hand, and the directors, officers, Shareholders, customers or suppliers
of the Company or any of its subsidiaries or affiliates on the other
hand, which is required by the Act or Canadian Securities Laws to be
described in the Prospectus or the Canadian Prospectus;
(xliv) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or threatened
against the Company or any of its subsidiaries before the National
Labor Relations Board, Canada Labor Relations Board or any state,
provincial, or local labor relations board, (ii) strike, labor dispute,
slowdown or stoppage pending or threatened against the Company or any
of its subsidiaries or (iii) union representation question existing
with respect to the employees of the Company or any of its
subsidiaries, except in the case of clauses (i), (ii) and (iii) for
such actions which, singly or in the aggregate, would not have a
Material Adverse Effect. To the best knowledge of the Company, no
collective bargaining organizing activities are taking place with
respect to the Company or any of its subsidiaries;
(xlv) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with the United States generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
12
(xlvi) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
otherwise or pursuant to any assessment received by the Company or any
of its subsidiaries have been paid, other than those being contested in
good faith and for which adequate reserves have been provided except
where failure to file would not have a Material Adverse Effect;
(xlvii) The Company has made available to the Underwriters
true and complete copies of all agreements between the Company or any
of its directors, officers or employees on one hand and Ledcor and
Urbanlink, or any of their respective directors, officers or employees
on the other hand;
(xlviii) the Shares are not subject to any registration rights
or preemptive rights pursuant to any shareholder agreement or any other
agreement, other than rights that have been expressly waived by the
parties to any such agreements; and
(xlix) Neither the Company nor any of its Restricted
Subsidiaries, as defined in the indenture governing the Company's 12%
Senior Notes due 2009, nor is any of its or their respective property
or assets subject to, any obligation (including, without limitation,
any mortgage, assignment, pledge, charge or other security interest)
under the Hibernia Facility (as defined).
(b) The Selling Shareholder represents and warrants to, and
agrees with, each of the Underwriters, Sub-Underwriters and the Company that:
(i) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Shareholder of
this Agreement, and for the sale and delivery of the Shares to be sold
by the Selling Shareholder hereunder, have been obtained; and the
Selling Shareholder has full right, power and authority to enter into
this Agreement, and to sell, assign, transfer and deliver the Shares to
be sold by the Selling Shareholder hereunder;
(ii) The sale of the Shares to be sold by the Selling
Shareholder hereunder and the compliance by the Selling Shareholder
with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated 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, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder is
bound or to which any of the property or assets of the Selling
Shareholder is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Selling Shareholder if the Selling Shareholder is a corporation or the
Partnership Agreement of the Selling Shareholder if the Selling
Shareholder is a partnership or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Selling Shareholder or the property of the
Selling Shareholder;
(iii) This Agreement has been duly and validly executed and
delivered on behalf of the Selling Shareholder;
13
(iv) The Selling Shareholder has, and immediately prior to the
each Time of Delivery (as defined in Section 3(a)) the Selling
Shareholder will have, good and valid title to the Shares to be sold by
the Selling Shareholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(v) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Subordinate Voting
Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Subordinate Voting Shares or any such substantially similar
securities (other than pursuant to employee stock option plans
existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this
Agreement), without your prior written consent; except for those
securities the sale of which by the Selling Shareholder is
contemplated by the Prospectus and the Canadian Final Prospectus;
(vi) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(vii) To the extent that any statements or omissions made in
the Registration Statement, any Preliminary Prospectus, the Prospectus,
the Canadian Preliminary Prospectus, the Amended Canadian Preliminary
Prospectus, the Canadian Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with written
information furnished to the Company by the Selling Shareholder
expressly for use therein, such Preliminary Prospectus, the
Registration Statement, the Canadian Preliminary Prospectus and the
Amended Canadian Preliminary Prospectus did, and the Prospectus and the
Canadian Prospectus and any further amendments or supplements to the
Registration Statement, the Prospectus and the Canadian Prospectus,
when they become effective or are filed with the Commission or the
Canadian Commissions, as the case may be, will conform in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and the Canadian Securities Laws 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;
(viii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with
14
respect to the transactions herein contemplated, the Selling
Shareholder will deliver to you prior to or at the First Time of
Delivery (as defined in Section 3(a)) 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); and
(ix) The obligations of the Selling Shareholder hereunder
shall not be terminated by operation of law whether, in the case of a
partnership, by the dissolution of such partnership, or by the
occurrence of any other event; if any such partnership 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 Shareholder in accordance with
the terms and conditions of this Agreement;
2. Subject to the terms and conditions herein set forth, (a) the
Company and the Selling Shareholder agree, severally and not jointly, to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and the Selling Shareholder, at a purchase
price per share of $.............., the number of Firm Shares (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Shares to be sold by the Company and the Selling Shareholder
as set forth opposite its name in Schedule E 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
Shareholder 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 agrees to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
the purchase price 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 you 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, as and to the extent indicated in Schedule E hereto,
hereby grants, to the Underwriters the right to purchase at their election up to
6,941,250 Optional Shares, at the purchase price per share set forth in the
paragraph above, for the sole purpose of covering sales of shares in excess of
the number of Firm Shares. Any such election to purchase Optional Shares shall
be made in proportion to the maximum number of Optional Shares to be sold by the
Company as set forth in Schedule E hereto initially with respect to the Optional
Shares to be sold by the Company. Any such election to purchase Optional Shares
may be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement and 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 you but in no event
earlier than the First Time of Delivery (as defined in Section 3(a)) or, unless
you and the Company otherwise agree in writing, earlier than two or later than
ten business days after the date of such notice.
15
(a) Upon the authorization by you 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.
(b) The Company understands that a portion of the Shares may
be offered and sold in the Canadian Jurisdictions by ▇▇▇▇▇▇▇ Sachs Canada Inc.,
Credit Suisse First Boston Securities Canada Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Canada
Limited, and ▇▇▇▇▇▇▇ Warburg Dillon Read Inc. (collectively, the
"SUB-UNDERWRITERS") and TD Securities Inc., BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. and RBC
Dominion Securities Inc. pursuant to the Canadian Prospectus. Any Shares so sold
by the Sub-Underwriters will be purchased by the Sub-Underwriters from their
respective Underwriter affiliates at the Time of Delivery (as defined in Section
3(a)) at a price equal to the purchase price set forth in Section 2 above or
such purchase price less an amount to be mutually agreed upon by the
Sub-Underwriter and its Underwriter affiliate, which amount shall not be greater
than the underwriting commission set forth on the cover page of the Prospectus
and the Canadian Prospectus.
(c) The Underwriters shall give prompt written notice to
the Company and the Selling Shareholder when, in the opinion of the
Underwriters, they have ceased distribution to the public of the Firm Shares
or the Optional Shares, as the case may be, and after the First Time of
Delivery or the Second Time of Delivery, as the case may be, of the total
proceeds realized in each of the provinces from such distribution.
3. (a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, Sachs & Co. and DLJ may request upon at least forty-eight
hours' prior notice to the Company and the Selling Shareholder shall be
delivered by or on behalf of the Company and the Selling Shareholder to ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. and DLJ, through the facilities of the Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company and the Selling
Shareholder, as their interests may appear, to ▇▇▇▇▇▇▇, Sachs & Co. and DLJ at
least forty-eight hours in advance. 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 Time of Delivery (as defined below) with respect
thereto at the office 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, 9:00 a.m., New York time, on April __, 2000 or such other
time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and DLJ, the Company and the Selling
Shareholder may agree upon in writing, and, with respect to the Optional Shares,
9:00 a.m., New York time, on the date specified by ▇▇▇▇▇▇▇, Sachs & Co. and DLJ
in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and DLJ of the Underwriters'
election to purchase such Optional Shares, or such other time and date as
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., DLJ and the Company may agree upon in writing. Such time
and date for delivery of the Firm Shares is herein called the "FIRST TIME OF
DELIVERY", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "SECOND TIME OF DELIVERY", and each
such time and date for delivery is herein called a "TIME OF DELIVERY".
(b) The documents to be delivered at each Time of Delivery
by or on behalf of the parties hereto pursuant to Section 6 hereof, including
the cross receipt for the Shares, will be delivered at the offices of ▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
16
10022 (the "CLOSING LOCATION"), and the Shares will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location on the New York Business Day next preceding such Time of
Delivery, 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 3, "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.
4. The Company agrees with each of the Underwriters and
Sub-Underwriters:
(a) To (i) prepare the Prospectus in a form approved by you
and to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; (ii) obtain a Mutual
Reliance Review Decision document for the Canadian Final Prospectus from the
Principal Regulator of the Canadian Commissions not later than 5:00 p.m.
(Vancouver time) on the business day next following the date of this Agreement
and, if the Company has elected to use the PREP Procedures in connection with
the distribution of the Shares in Canada, to file the Canadian Prospectus, in a
form approved by you, with each of the Canadian Commissions not later than the
time of filing of the Prospectus with the Commission, and in any event, in
accordance with the PREP Procedures and the PREP Exemption Orders; (iii) advise
you, promptly, when the Canadian Prospectus shall have been filed with the
Canadian Commissions; (iv) advise you, promptly, after it receives any
communication from any Canadian Commission or any other regulatory authority in
Canada relating to the Canadian Prospectus, the offering of the Shares or the
listing of the Shares on The Toronto Stock Exchange; and (v) make no further
amendment or any supplement to the Registration Statement, Prospectus or
Canadian Prospectus which shall be disapproved by you promptly after reasonable
notice thereof; (vi) advise you, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed or
becomes effective or any supplement to the Prospectus or any amended Prospectus
has been filed and to furnish you with copies thereof; (vii) advise you,
promptly after it receives notice thereof, of the issuance by the Commission or
any Canadian Commission of any stop order, cease trading order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus,
Canadian Preliminary Prospectus, Amended Canadian Preliminary Prospectus,
Canadian Final Prospectus, Canadian Prospectus or any Canadian Prospectus
Amendment (as defined) 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 or a
Canadian Commission for the amending or supplementing of the Registration
Statement, Prospectus or Canadian Prospectus or for additional information; and,
(viii) in the event of the issuance of any stop order, cease trading order or of
any order preventing or suspending the use of any Preliminary Prospectus or
prospectus, Canadian Preliminary Prospectus, Amended Canadian Preliminary
Prospectus, Canadian Final Prospectus, Canadian Prospectus or any Canadian
Prospectus Amendment (as defined) or suspending any such qualification, promptly
to use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you 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
17
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to time,
to furnish the Underwriters and Sub-Underwriters with copies of the Prospectus
in New York City and the Canadian Prospectus in both the English and French
languages in Toronto and Montreal in such quantities as you 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
events shall have occurred as a result of which the Prospectus or the Canadian
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 or Canadian Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to amend or
supplement the Prospectus or the Canadian Prospectus in order to comply with the
Act, to notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or Canadian
Prospectus or a supplement to the Prospectus or Canadian 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 your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) If at any time it shall be necessary to amend or
supplement the Canadian Prospectus (each such amendment or supplement, a
"CANADIAN PROSPECTUS AMENDMENT") to comply with Section 4(c) or to otherwise
comply with Canadian Securities Laws, the Company promptly will (i) prepare and
file with each of the Canadian Commissions, an amendment or supplement in a form
approved by you which will effect such compliance and file such Canadian
Prospectus Amendment with the Canadian Commission in each of the Canadian
Jurisdictions where such filing is required and (ii) supply such Canadian
Prospectus Amendment to you in such quantities as you may reasonably request.
The Company shall deliver to the Underwriters, concurrently with the delivery of
any Canadian Prospectus Amendment, opinions similar to those referred to in
Sections 7(l) and 7(m) with respect to such Canadian Prospectus Amendment, if a
French language version of such Canadian Prospectus Amendment is required to be
filed;
(e) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(f) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company that are
substantially similar to the Subordinate Voting Shares, including but not
limited to any securities that are convertible
18
into or exchangeable for, or that represent the right to receive, Subordinate
Voting Shares or any such substantially similar securities (other than
pursuant to employee stock option plans existing on, or upon the conversion
or exchange of convertible or exchangeable securities outstanding as of, the
date of this Agreement), without your prior written consent except for those
Securities the sale of which by the Company is contemplated by the Prospectus
and the Final Canadian Prospectus or securities issued as consideration in
connection with strategic investments or acquisitions of businesses,
technologies or products complementary to ours, in which the Company may
otherwise engage, so long as the recipients of such securities agree to be
bound by the restriction set forth in this representation for the remainder
of the 180-day period;
(g) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its shareholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(h) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you 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
shareholders generally or to the Commission);
(i) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(j) To use its best efforts to effect the listing of the
Shares on The Toronto Stock Exchange (the "Exchange") and list for quotation the
Shares on the National Association of Securities Dealers Automated Quotations
National Market System ("NASDAQ");
(k) To cause the Canadian Telecommunications Arrangement to be
established prior to the First Time of Delivery;
(l) To file with the Commission such information on Form 10-Q
or Form 10-K as may be required by Rule 463 under the Act; and
(m) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
5. The Company and the Selling Shareholder covenant and agree with one
another and with the several Underwriters that (a) the Company and the Selling
Shareholder will pay or cause to be paid their respective pro rata share based
on the proceeds received by the Company and the Selling Shareholder hereunder,
as the case may be, of the following: (i) the
19
fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus, the Canadian Preliminary
Prospectus, the Amended Canadian Preliminary Prospectus, the Prospectus and the
Canadian 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 producing any Agreement among Underwriters, this 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, and any relevant foreign, securities
laws as provided in Section 5(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 listing the Shares on the Exchange and NASDAQ; and (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; and (b) the
Company will pay or cause to be paid: (i) the cost of preparing stock
certificates; (ii) the cost and charges of any transfer agents or registrars and
(iii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section 5; and (c) the Selling Shareholder will pay or cause to be paid all
costs and expenses incident to the performance of the Selling Shareholder's
obligations hereunder which are not otherwise specifically provided for in this
Section, including (i) any fees and expenses of counsel for the Selling
Shareholder, and (ii) all expenses and taxes incident to the sale and delivery
of the Shares to be sold by the Selling Shareholder to the Underwriters
hereunder. It is understood, however, that the Company shall bear, and the
Selling Shareholder shall not be required to pay or to reimburse the Company
for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided
in this Section, and Sections 7 and 10 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.
6. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholder herein are, at and as of such Time of
Delivery, true and correct, the condition that the Company and the Selling
Shareholder shall have performed all of their obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) (1) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 4(a) hereof; if the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective by 10:00
P.M., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction; and (2) the Canadian Final Prospectus shall have been
filed with each
20
of the Canadian Commissions and receipts obtained therefor and, if the Company
has elected to use the PREP Procedures in connection with the distribution of
the Shares in Canada, the Canadian Prospectus shall have been filed with each of
the Canadian Commissions within the applicable time period prescribed by and in
accordance with Section 4(a) hereof, and all other steps or proceedings shall
have been taken that may be necessary to enable the Shares to be lawfully
distributed to the public in each of the Canadian Jurisdictions;
(b) (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters, shall
have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the matters as you may reasonably request and (ii)
Osler, ▇▇▇▇▇▇ & Harcourt LLP, Canadian counsel for the Underwriters shall have
furnished to you such written opinion or opinions, dated such Time of Delivery
with respect to the matters as you may reasonably request, and each such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(c) (1) ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, U.S. counsel for the
Company, shall have furnished to you their written opinion or opinions, dated
such Time of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) assuming due authorization by the Company, this
Agreement has been duly executed and delivered by the
Company, to the extent that execution and delivery
are governed by New York law;
(ii) the statements under the caption "Description of
Indebtedness" in the Prospectus, insofar as such
statements constitute a summary of the documents
referred to therein, fairly summarize in all material
respects such documents;
(iii) the statements in the Prospectus under the caption
"Material United States and Canadian Income Tax
Considerations," to the extent they constitute
matters of United States law or legal conclusions
with respect thereto, have been prepared or reviewed
by us and are correct in all material respects and
fairly summarize the matters set forth therein;
(iv) the execution, delivery and performance by the
Company of this Agreement, the issuance and sale by
the Company of the Shares, the compliance by the
Company with all provisions hereof and thereof and
the consummation of the transactions contemplated
hereby and thereby: (i) do not conflict with or
violate any federal statute of the United States of
America or any statute of the State of New York or
any rule or regulation thereunder (provided that no
opinion is expressed in this paragraph as to
compliance with the Act, any state securities or blue
sky laws or the Telecommunications Act of 1996, as
amended, and the rules and regulations thereunder);
or (ii) conflict with or constitute a breach of any
of the terms or provisions of, or a default under,
the indenture governing the Company's 12% Senior
Notes due 2009, the indenture governing the Company's
12 1/2% Senior Notes due 2008, the indenture
governing the Company's U.S. Dollar ___% Senior
Notes due 2008, the indenture governing the Company's
Euro ___% Senior Notes due 2008, the agreement
governing the Hibernia project financing
Facilities entered into by the Company, ▇▇▇▇▇▇▇
Sachs, DLJ, Credit Suisse First Boston, Toronto
Dominion, Bank of Montreal and EDC (the "HIBERNIA
FACILITIES");
21
(v) the Company is not and, after giving effect to the
offering and sale of the Shares and the application
of the net proceeds thereof as described in the
Prospectus, will not be, an "investment company" as
such term is defined in the Investment Company Act of
1940, as amended;
(vi) assuming the due authorization, execution and
delivery of this Agreement by each party thereto, the
Company has validly and irrevocably submitted to the
jurisdiction of any United States or state court in
the State of New York, County of New York, has
expressly accepted the non-exclusive jurisdiction of
any such court and has validly and irrevocably
appointed CT Corporation System as its authorized
agent in any suit or proceeding against them
instituted by the Underwriters based on or arising
under this Agreement;
(vii) each of Worldwide Fiber IC LLC, IC Fiber Alabama LLC,
IC Fiber Illinois LLC, IC Fiber Iowa LLC, IC Fiber
Kentucky LLC, IC Fiber Louisiana LLC, IC Fiber
Mississippi LLC and IC Fiber Tennessee LLC
(collectively, the "DELAWARE COMPANIES") has been
duly organized as a Delaware limited liability
Company, and is validly existing and in good standing
under the laws of Delaware; there are no restrictions
on the power and capacity of each of the Delaware
Companies to own and lease property and assets and to
carry on business; and
(viii) the Registration Statement and the Prospectus and any
further amendments and supplements thereto made by
the Company prior to such Time of Delivery (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 Act and the rules and
regulations thereunder 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.
The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ described in Section 6(c)(1)
above shall be rendered to you at the request of the Company and shall so state
therein. In addition, such counsel shall state that it has participated in
conferences, by person or by telephone, with officers and other representatives
of the Company, with representatives of the chartered accountants for the
Company and with representatives of the Underwriters and their counsel. At such
meetings the contents of the Registration Statement and Prospectus and related
matters were discussed among the parties present at such meetings. Although such
counsel will not be passing upon and will not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus except as set forth in paragraphs (ii) and
(iii) above, such counsel shall advise the Underwriters that 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 Time of Delivery
(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
22
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 Time
of Delivery (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 the light of the circumstances under which they were
made, not misleading or that, as of such Time of Delivery, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto made by the Company prior to such Time of Delivery (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.
(c) (2) Farris, Vaughan, ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the
Company, shall have furnished to you their written opinion or opinions, dated
such Time of Delivery, in form and substance satisfactory to you, to the effect
that:
(i) each of the Canadian Companies is a corporation duly
incorporated and validly existing under the laws of its jurisdiction of
incorporation; each of the Canadian Companies has the corporate power
and capacity to own and lease property and assets and to carry on
business as described in the Prospectus and the Canadian Prospectus;
(ii) each of the Canadian Companies is qualified or
registered to carry on business as an extra-provincial corporation in
each jurisdiction in which it is required to be so qualified or
registered;
(iii) the Company has authorized capital as set forth in
the Prospectus and the Canadian Prospectus, and all of the issued
shares of capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly allotted
and issued and are outstanding as fully paid and non-assessable; and
the Shares conform to the description contained in the Canadian
Prospectus;
(iv) there are no statutory rights, including pre-emptive
or similar rights, to purchase or otherwise acquire shares or sell or
otherwise transfer the share capital of the Company pursuant to any
provision of the laws of Nova Scotia or the federal laws of Canada
applicable therein or the Memorandum of Association or Articles of
Association of the Company;
(v) all of the issued shares of each Canadian Company that
is a subsidiary of the Company have been duly and validly authorized
and issued and are outstanding as fully paid and non-assessable;
(vi) to the best of such counsel's knowledge and other
than as set forth in the Prospectus and the Canadian Prospectus, there
are no pending or threatened legal or governmental proceedings to which
any of the Canadian Companies is a party which questions the validity
of this Agreement or the Transfer Restriction Agreement or any action
taken or to be taken pursuant hereto or thereto or, if determined
adversely to any of the Canadian Companies, would individually or in
the aggregate have a Material Adverse Effect;
(vii) the Company has the corporate power and capacity to
enter into this Agreement and the Transfer Restriction Agreement and to
carry out its obligations under this Agreement and the Transfer
Restriction Agreement; the execution and delivery of this Agreement and
the Transfer Restriction Agreement and the
23
consummation of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action on the part of
the Company;
(viii) each of this Agreement and the Transfer Restriction
Agreement has been duly authorized, executed and delivered by the
Company, and the Transfer Restriction Agreement is a valid and legally
binding agreement, enforceable against the Company in accordance with
its terms subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, transfer and other laws relating to
or affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity);
(ix) WFH has the corporate power and capacity to enter
into the Transfer Restriction Agreement and to carry out its
obligations under the Transfer Restriction Agreement; the execution and
delivery of the Transfer Restriction Agreement and the consummation of
the transactions contemplated thereby have been duly authorized by all
necessary corporate action on the part of WFH ;
(x) The Transfer Restriction Agreement has been duly
authorized, executed and delivered by WFH, and the Transfer Restriction
Agreement is a valid and legally binding agreement, enforceable against
WFH in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, transfer
and other laws relating to or affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity);
(xi) the execution and delivery by the Company of this
Agreement and the Transfer Restriction Agreement, the issue and sale of
the Shares being delivered at such Time of Delivery to be sold by the
Company, the compliance by the Company with all of the provisions of
this Agreement and the Transfer Restriction Agreement, the compliance
by WFH with all of the provisions of the Transfer Restriction Agreement
and the consummation of the transactions contemplated in this Agreement
and the Transfer Restriction Agreement will not conflict with or result
in a breach or violation, of the provisions of the Memorandum of
Association or Articles of Association of the Company or any laws of
the Province of British Columbia or Nova Scotia or the federal laws of
Canada;
(xii) the statements set forth in the Prospectus and the
Canadian Prospectus under the captions "Description of our Capital
Stock" and "Description of Capital Stock and Share Capital
Reorganization," insofar as they purport to constitute a summary of the
terms of the Stock, fairly summarize in all material respects the
attributes of such Stock, and the statements set forth under the
captions "Regulation - Canada," "Shares Eligible for Future Sale -
Canadian Resale Restrictions," "Risk Factors - Extensive Regulation -
Canada," and "Enforceability of Civil Liabilities Against Foreign
Persons," insofar as such disclosure describes or summarizes matters of
Canadian law or constitutes conclusions of Canadian law, fairly
summaries such matters or conclusions of law;
(xiii) the form of certificate for the Shares has been
duly approved and adopted by the Company and complies with the
provisions of the Companies Act (Nova Scotia) and the requirements of
The Toronto Stock Exchange;
24
(xiv) The listing of the Shares on The Toronto Stock
Exchange has been approved by such Exchange, subject only to the filing
of documents and evidence of satisfactory distribution in accordance
with the requirements of such Exchange on or before July 11, 2000.
(xv) the statements contained in the Prospectus and the
Canadian Prospectus under the caption "Material United States and
Canadian Income Tax Considerations - Certain Canadian Federal Income
Tax Considerations" and, "Eligibility for Investment" fairly and
accurately describe the principal Canadian federal income tax
consequences under the INCOME TAX ACT (Canada);
(xvi) Montreal Trust Company of Canada at its principal
stock and bond offices in Vancouver and Toronto and HSBC Bank USA have
been duly appointed as the transfer agents and registrars for the
Shares;
(xvii) the statements in the Canadian Prospectus under the
heading "Purchasers' Statutory Rights" are correct insofar as such
statements are, or refer to, statements of law or legal conclusions
relating to the laws of the Canadian Jurisdictions;
(xviii) The Canadian Telecommunications Arrangement (as
described in the Prospectus and the Canadian Prospectus) including the
execution, delivery and performance of the Canadian Telecommunications
Agreements by the parties thereto will not violate or conflict with any
provisions of the Telecommunications Act or the Ownership Regulations,
any applicable rule, regulation, judgment, order or decree of the
Canadian Radio-television and Telecommunications Commission (the
"CRTC") or Industry Canada or the articles or by-laws, or the
Memorandum of Association or Articles of Association, as the case may
be, of each of the parties thereto;
(xix) no filing, license, consent, permission, approval,
authorization, or order of any court or governmental agency or body in
Canada is required to be obtained by the Canadian Companies under the
laws of the Provinces of British Columbia or Nova Scotia or the federal
laws of Canada applicable therein, in connection with the execution,
delivery and performance of this Agreement by the Company or to permit
the issue, delivery and sale by the Company of the Shares, except such
filings, licenses, consents, permissions, approvals, authorizations or
orders that have been obtained;
(xx) No filing, license, consent, permission, approval,
authorization, or order of any court or governmental agency of body in
Canada is required to be obtained by any of the Canadian Companies from
the CRTC or Industry Canada in connection with the Canadian
Telecommunications Arrangement;
(xxi) the choice of law provisions set forth in Section 16
hereof, is legal, valid and binding under the laws of the Province of
British Columbia and the federal laws of Canada applicable therein,
provided that such choice of law is bona fide (in the sense that it was
not made with a view to avoiding the consequences of the laws of any
other jurisdiction) and provided that such choice of law is not
contrary to public policy, as that term is applied by the courts in the
▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("PUBLIC POLICY"); such counsel knows of
no Public Policy reason why the courts in the Province of British
Columbia (a "CANADIAN COURT") would not give effect to the choice of
New York law as the proper law of this Agreement and if this Agreement
is sought to be enforced in the Province of British Columbia in
accordance with the laws applicable thereto as chosen by the parties,
namely New York law, a Canadian Court would, subject to the foregoing,
recognize the choice of New York law, and, upon appropriate evidence as
to such law being adduced, apply such law; provided that none of the
provisions of this Agreement, or of applicable New York law, are
contrary to Public Policy or foreign revenue, expropriation or penal
laws; provided, however, that, in matters of procedure, the laws of the
Province of British Columbia will be applied and a Canadian Court will
retain discretion to decline to hear such action if it is contrary to
Public Policy for it to do so, or if it is not the proper forum to hear
such an action, or if concurrent proceedings are being brought
elsewhere;
(xxii) there are no reasons, to such counsel's knowledge,
under the laws of the Province of British Columbia or the federal laws
of Canada applicable therein or with respect to the application of New
York law by a Canadian Court, why enforcement of this Agreement would
be avoided on the grounds of Public Policy;
(xxiii) the Company has the legal capacity to ▇▇▇ and be
sued in its own name under the laws of the Province of British Columbia
and the federal laws of Canada applicable therein; the Company has the
power to submit, and has irrevocably submitted, to the non-exclusive
jurisdiction of the federal or state courts located in the Borough of
Manhattan in The City of New York (a "NEW YORK COURT") and has validly
and irrevocably appointed CT Corporation System as its authorized agent
for the purpose described in Section 16 hereof; the Company has the
power to submit, and has irrevocably submitted, to the non-exclusive
jurisdiction of the New York Court and has validly and irrevocably
appointed CT Corporation System as its authorized agent under the laws
of the Province of British Columbia and the federal laws of Canada
applicable therein; the irrevocable submission of the Company to the
non-exclusive jurisdiction of the New York Court and the waivers by it
of any immunity and any objection to the venue of the proceeding in a
New York Court herein is legal, valid and binding under the laws of the
Province of British Columbia and the federal laws of Canada applicable
therein, and such counsel knows of no reason why a Canadian Court would
not give effect to such submission and waivers; the irrevocable
submission of the Company to the non-exclusive jurisdiction of the New
York Court and the waivers by the Company of any immunity and any
objection to the venue of the proceeding in a New York Court herein is
legal, valid and binding under the laws of the Province of British
Columbia and the federal laws of Canada applicable therein, and such
counsel knows of no reason why a Canadian Court would not give effect
to such submission and waivers;
(xxiv) service of process in the manner set forth in
Section 16 hereof will be effective to confer valid personal
jurisdiction over the Company under the laws of the Province of British
Columbia and the federal laws of Canada applicable therein;
(xxv) a Canadian Court will recognize as valid and final,
and will enforce, any final and conclusive judgment in personam, of any
New York Court that is not impeachable as void or voidable under the
internal laws of the State of New York for a sum certain in respect of
the enforcement of the obligations of the Company under this Agreement,
if (i) the court rendering such judgment had jurisdiction over the
judgment debtor, as recognized by the Canadian Court (and submission by
the Company in this Agreement to the jurisdiction of the New York
Court, will be sufficient for this purpose), (ii) such judgment was not
obtained by fraud or in a manner contrary to natural justice
26
and the enforcement thereof would not be inconsistent with Public
Policy, or contrary to any order made by the Attorney General of Canada
under the Foreign Extraterritorial Measures Act (Canada), (iii) the
enforcement of such judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory or penal
laws, (iv) the action to enforce such judgment is commenced within the
applicable limitation period and (v) such counsel knows of no Public
Policy reason for avoiding the recognition of judgments of a New York
Court under this Agreement under the laws of the Province of British
Columbia and the federal laws of Canada applicable therein;
(xxvi) all necessary documents have been filed, all
requisite proceedings have been taken and all legal requirements have
been fulfilled by the Company in order to qualify the Shares for
distribution and sale to the public in each of the Canadian
Jurisdictions by or through persons appropriately registered under the
Canadian Securities Laws who have complied with all relevant provisions
of such laws;
(xxvii) Except for withholding tax eligible on any amount
paid or credited, or deemed to be paid or credited to a non-resident
person as, on account or in lieu of payment of, or in satisfaction of a
dividend, no stamp duty, registration or documentary taxes, duties or
similar charges are payable to the Canadian government or to any
political subdivision or taxing authority thereof or therein in
connection with (A) the issuance, sale and delivery by the Company and
the Selling Shareholder to or for the respective accounts of the
Underwriters of the Shares or (B) the sale and delivery outside Canada
by the Underwriters of the Shares to the initial purchasers thereof in
the manner contemplated in this Agreement, no withholding tax will be
payable by or on behalf of the Underwriters to the Canadian government
or to any political subdivision or taxing authority thereof or therein
in connection with (A) the issuance, sale and delivery by the Company
and the Selling Shareholder to or for the respective accounts of the
Underwriters of the Shares, (B) the sale and delivery outside Canada by
the Underwriters of the Shares to the initial purchasers thereof in the
manner contemplated in this Agreement; or (C) the payment or crediting
by the Company or the Selling Shareholder of any commission or fee to
or for the respective account of any Underwriter who is not resident in
Canada, provided that commission or fee is payable in respect of
services rendered by such Underwriter outside of Canada.
(xxviii) No goods and services tax imposed under the
federal laws of Canada will be collectible by an Underwriter in respect
of the payment or crediting of any discount, commission or fee as
contemplated by this Agreement to any Underwriters, provided that any
such discount, commission or fee is payable in respect of services
performed by such Underwriter wholly outside of Canada;
(xxix) (a) Urbanlink is eligible to operate as a
telecommunications common carrier in Canada, as defined under and in
accordance with the Telecommunications Act (Canada) (the
"Telecommunications Act") and the Canadian Telecommunications Common
Carrier Ownership and Control Regulations (the "OWNERSHIP
Regulations"); (b) none of the Canadian Companies violates the
prohibition contained in subsection 16(4) of the Telecommunications Act
against operating in Canada as a telecommunications common carrier when
ineligible to do so; (c) control of Urbanlink is not exercised by any
person(s) that is (are) not Canadian, in accordance with the meanings
ascribed to the term "control" under the Telecommunications Act and the
term "Canadian" under the Ownership Regulations; and (d) none of the
Canadian Companies
27
is in violation of any judgment, decree, order, writ, law, statute,
rule or regulation rendered or enacted in Canada respecting
telecommunications and the regulation within Canada of
telecommunications common carriers, as defined in the
Telecommunications Act, applicable to any of the Canadian Companies, or
any interpretation or policy relating thereto known to such counsel to
be applicable to them;
(xxx) after giving effect to the performance by the
Company of its obligations under this Agreement at such Time of
Delivery:
(a) not less than eighty percent of the members of
the board of directors of Urbanlink are individual
Canadians, as defined under the Ownership Regulations;
(b) Canadians, as defined under the Ownership
Regulations beneficially own, directly or indirectly, in
the aggregate and otherwise than by way of security only,
at least 80% of the issued and outstanding voting shares,
as defined under the Ownership Regulations, of Urbanlink;
(c) Carrier Holdco, in respect of its ownership of
and control over Urbanlink, is a carrier holding
corporation, as defined under the Ownership Regulations;
and
(d) Carrier Holdco is a carrier holding corporation
that is a qualified corporation, as defined under the
Ownership Regulations;
(e) no notices, reports or other filings are
required to be made by any of the Canadian Companies,
either prior to or immediately after giving effect to the
performance by the Company of its obligations under this
Agreement at such Time of Delivery, with, nor are any
consents, registrations, applications, approvals, permits,
licenses or authorizations required to be obtained by any
of the Canadian Companies from the CRTC or Industry Canada
pursuant to Canadian telecommunications law in connection
with the performance by the Company of its obligations
under this Agreement at such Time of Delivery;
(f) to the knowledge of such counsel, and except as
described in the Prospectus and the Canadian Prospectus,
no litigation, regulatory proceeding or investigation is
pending against the Canadian Companies in connection with
the requirements of Canadian telecommunications law
existing at such Time of Delivery; and
(g) with the exception of Urbanlink, no other
Canadian Company operates in Canada as a
telecommunications common carrier as that term is defined
in the Telecommunications Act.
Such counsel shall also confirm the accuracy of the statements set
forth under the heading "Eligibility for Investment" in the Canadian Prospectus.
Such counsel shall also confirm that at the date of the Registration
Statement, Prospectus and Canadian Prospectus and at such Time of Delivery that
no facts have come to their attention in the course of their review that lead
them to believe that the ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and Canadian Prospectus contained or contains any untrue
statement of a material fact, or omitted or omits to state a material fact
necessary to make a statement therein not misleading in light of the
circumstances under which it was made, within the meaning of the Securities Act
(British Columbia).
The opinion of Farris, Vaughan, ▇▇▇▇▇ & ▇▇▇▇▇▇ described in Section
6(c)(2) above (i) shall be rendered to you at the request of the Company and
shall so state therein, (ii) as to matters of Alberta law, will rely upon the
opinion of the Company's Alberta Counsel, ▇▇▇▇▇▇▇▇ ▇▇▇▇, (iii) as to matters of
Nova Scotia law, will rely upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Stirling Scales
(iv) as to matters of law in the other Canadian Jurisdictions, other than
British Columbia, will rely upon counsel of good standing whom they believe to
be reliable and who are acceptable to you; and (v) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials.
(c) (3) ▇▇▇▇▇▇▇, Singleton, Jemison, Cobeaga & List, Chtd., special
Nevada counsel for the Company, shall have furnished to you their written
opinion or opinions, dated such Time of Delivery, in form and substance
satisfactory to you to the effect that:
(i) each of PFL Holdings, Inc., Worldwide Fiber (USA),
Inc., Ledcor Communications, Inc., Worldwide Fiber IC Holdings, Inc.
(fka Worldwide Fiberlink, Inc.), Worldwide Fiber Networks, Inc. (fka
Pacific Fiber Link POR-SAC, Inc.), Pacific Fiber Link Sea-Por, Inc.,
Worldwide Fiber Network Services, Inc., WFI Fiber Inc. and Worldwide
Fiber (F.O.T.S.), Inc. (collectively, the "NEVADA SUBSIDIARIES") has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the State of Nevada and has the corporate
power and authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties;
(ii) each of the Nevada Subsidiaries is duly qualified and
is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a Material Adverse
Effect;
(iii) all of the outstanding shares of capital stock of
each of the Nevada Subsidiaries has been duly authorized and validly
issued and is fully paid and non-assessable, and are owned by the
Company, free and clear of any Lien;
(iv) the execution, delivery, and performance of this
Agreement will not conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the Articles or Bylaws of
any of the Nevada Subsidiaries, or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to
the Nevada Subsidiaries, taken as a whole, to which any of the Nevada
Subsidiaries is a party or by which any of the Nevada Subsidiaries is
bound; violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over any of the Nevada Subsidiaries
or their respective property; result in the imposition or creation of
(or the obligation to create or impose) a Lien under, any agreement or
instrument to which any of the Nevada Subsidiaries or their respective
property is bound; or result in the termination, suspension or
revocation of any Authorization of any of the Nevada Subsidiaries or
result in any other impairment of the rights of the holder of such
Authorization; and
29
(v) there are no known legal or governmental proceedings
pending or threatened to which any of the Nevada Subsidiaries is or
could be a party or to which any of their property is or could be
subject, which might result, singly or in the aggregate, in a Material
Adverse Effect.
The opinion of ▇▇▇▇▇▇▇, Singleton, Jemison, Cobeaga & List, Chtd.
described in Section 6(c)(3) above shall be rendered to you at the request of
the Company and shall so state therein.
(c) (4) ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special regulatory counsel for the
Company, shall have furnished to you their written opinion or opinions, dated
such Time of Delivery, in form and substance satisfactory to you to the effect
that the statements, with respect to federal communications law, under the
captions "Regulation--United States," and "Risk Factors--Extensive
Regulation--United States" in the Prospectus, insofar as such statements as a
whole constitute a summary of the legal matters, documents and proceedings
referred to therein, fairly present in all material respects such legal matters,
documents and proceedings. The opinion of ▇▇▇▇▇ ▇▇▇▇ & Fielding described in
this Section 6(c)(4) shall be rendered to you at the request of the Company and
shall so state therein.
(c) (5) Bird & Bird, special regulatory counsel for the Company, shall
have furnished to you their written opinion or opinions, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect that the
statements, with respect to European regulatory matters, under the captions
"Regulation--European Union" and "Risk Factors--Extensive Regulation" (to the
extent such section deals with European Regulatory matters) in the Prospectus
insofar as such statements as a whole constitute a summary of the legal matters,
documents and proceedings referred to therein, fairly present in all material
respects such legal matters, documents and proceedings. The opinion of Bird &
Bird described in this Section 6(c)(5) shall be rendered to you at the request
of the company and shall so state therein.
(d) The counsel for the Selling Shareholder, as indicated
in Schedule E hereto, shall have furnished to you their written opinion with
respect to the Selling Shareholder dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) This Agreement has been duly authorized, executed
and delivered by or on behalf of the Selling Shareholder; and the
sale of the Shares to be sold by the Selling Shareholder hereunder
and the compliance by the Selling Shareholder with all of the
provisions of this Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any agreement which the
Selling Shareholder has represented to such counsel as material to
the Selling Shareholder, all of which are listed on a schedule to
the opinion of such counsel, nor will such action result in any
violation of the provisions of the Partnership Agreement of the
Selling Shareholder or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Selling Shareholder or the property of the
Selling Shareholder;
30
(iii) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with
the Shares to be sold by the Selling Shareholder hereunder, except
[name any such consent, approval, authorization or order] which [has]
[have] been duly obtained and [is] [are] in full force and effect, such
as have been obtained under the Act and the Canadian Securities Laws
in connection with the purchase and distribution of such Shares by the
Underwriters;
(iv) Immediately prior to such Time of Delivery, the
Selling Shareholder had full right, power and authority to sell,
assign, transfer and deliver the Shares to be sold by the Selling
Shareholder hereunder; and
(v) There are no reasons, to such counsel's knowledge,
under the laws of the Province of Alberta, or the federal laws of
Canada applicable therein or with respect to the application of New
York law by a Canadian Court, why enforcement of this Agreement would
be avoided on the grounds of Public Policy.
In rendering the opinion in paragraph (iv), such counsel may rely upon
a certificate of the Selling Shareholder in respect of matters of fact as to
ownership of the Shares sold by the Selling Shareholder, provided that such
counsel shall state that they believe that both you and they are justified in
relying upon such certificate;
(e) On the date of the Prospectus and the Canadian
Prospectus at a time prior to the execution of this Agreement, at 9:30 a.m., New
York City time, on the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this Agreement and also
at each Time of Delivery, PricewaterhouseCoopers LLP and Deloitte & Touche LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, containing the
information and statements of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement,
Prospectus and Canadian Prospectus;
(f) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial statements
included in the Prospectus and the Canadian Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
and the Canadian Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus and the Canadian Prospectus there shall
not have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the
31
Company and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus and the Canadian Prospectus, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered at such Time
of Delivery on the terms and in the manner contemplated in the Prospectus and
the Canadian Prospectus;
(g) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization 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;
(h) On or after the date hereof there shall not have
occurred any of the following: (i) the suspension or material limitation of
trading in securities or other instruments on the New York Stock Exchange, The
Toronto Stock Exchange, the American Stock Exchange or the Nasdaq National
Market or limitation on prices for securities or other instruments on any such
exchange or the Nasdaq National Market, (ii) the suspension or material
limitation of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iii) the declaration of a banking moratorium by either
federal or New York State authorities or authorities in Canada or any province
thereof, (iv) a change or development involving a prospective change in taxation
affecting the Company, the Shares or the transfer thereof or the imposition of
exchange controls by the United States or Canada, (v) the outbreak or escalation
of hostilities involving the United States or Canada or the declaration by the
United States or Canada of a national emergency or war, if the effect of any
such event specified in this clause (v) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus, (vi) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States or Canada or elsewhere which, in the judgment of
the Representatives would materially and adversely affect the financial markets
or the market for the Shares and other equity securities, (vii) the enactment,
publication, decree or other promulgation of any federal, state, provincial or
municipal statute, regulation, rule or order of any court or other governmental
authority which in the judgment of the Representatives materially and adversely
affects, or will materially and adversely affect, the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, or (viii) the taking of any action by any
federal, state, provincial, municipal or local government or agency in respect
of its monetary or fiscal affairs which in the judgment of the Representatives
has a material adverse effect on the financial markets in the United States or
Canada.
(i) The Shares at such Time of Delivery shall have been
conditionally approved for listing on the Exchange, subject to the Company
fulfilling all of the requirements of the Exchange, and shall be listed for
quotation on NASDAQ;
(j) the Canadian Telecommunications Arrangement shall have
been established and the Canadian Telecommunications Agreements shall have been
executed and delivered by each of the parties thereto;
32
(k) The Company has obtained and delivered to the
Underwriters executed copies of an agreement from each of the parties listed on
Schedule G hereto agreeing not to sell, transfer of hypothecate their Shares for
a set period of time in form and substance satisfactory to you;
(l) The Company shall have complied with the provisions of
Section 4(c) hereof with respect to the furnishing of prospectuses on the New
York Business Day next succeeding the date of this Agreement;
(m) PricewaterhouseCoopers LLP shall have furnished to the
Underwriters an opinion, dated the respective dates of the documents enumerated
below, in form and substance satisfactory to the Underwriters that the French
language versions of the pro forma financial statements and notes to such
statements, the historical financial statements and notes to such statements and
the related auditors' reports on such statements, the Management's Discussion
and Analysis of Financial Condition and Results of Operations and the tables of
financial and accounting information and notes thereto (collectively, the
"Financial Information") contained in each of the Canadian Preliminary
Prospectus, the Amended Canadian Preliminary Prospectus, the Canadian Final
Prospectus and the Canadian Prospectus are in all material respects a complete
and proper translation of the English language versions thereof.
(n) Lafleur, Brown, Quebec counsel to the Company, shall
have furnished to the Underwriters an opinion, in form and substance
satisfactory to the Underwriters, dated the respective dates of the documents
enumerated below, that, except for the Financial Information as to which they
need express no opinion, the French language version of each of the Canadian
Preliminary Prospectus, the Amended Canadian Preliminary Prospectus, the
Canadian Final Prospectus and the Canadian Prospectus is in all material
respects a complete and proper translation of the English language version
thereof and that such version is not susceptible of any materially different
interpretation with respect to any matter contained therein; and that all laws
relating to the use of the French language will have been complied with in
connection with the offer and sale of the Shares in the Province of Quebec.
(o) On or prior to such Time of Delivery, the Transfer
Restriction Agreement, in form and substance satisfactory to the Underwriters
and their counsel, shall have been executed and delivered to you by the parties
thereto.
(p) The Company and the Selling Shareholder shall have
furnished or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of the Selling Shareholder, respectively,
satisfactory to you as to the accuracy of the representations and warranties of
the Company and the Selling Shareholder, respectively, herein at and as of such
Time of Delivery, as to the performance by the Company and the Selling
Shareholder of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to be
furnished certificates as to the matters set forth in subsections (a) and (f) of
this Section.
7. (a) The Company and the Selling Shareholder, jointly and severally,
will indemnify and hold harmless each Underwriter and Sub-Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter and Sub-Underwriter may become subject, under the Act, the Canadian
Securities Laws or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
33
upon (i) an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
or (ii) any misrepresentation or alleged misrepresentation (as defined in the
Canadian Securities Laws) contained in the Canadian Preliminary Prospectus, the
Amended Canadian Preliminary Prospectus, the Canadian Final Prospectus, the
Canadian Prospectus, any Canadian Prospectus Amendment, or any untrue, false or
misleading statement therein, or any omission or alleged omission to state
therein any material fact or information required to be stated therein or
necessary to make any of the statements therein not misleading in light of the
circumstances in which they were made, and will reimburse each Underwriter and
Sub-Underwriter for any legal or other expenses reasonably incurred by such
Underwriter and Sub-Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; PROVIDED, HOWEVER, that
the Company and the Selling Shareholder shall 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus or any such amendment or supplement, the Canadian Preliminary
Prospectus, the Amended Canadian Preliminary Prospectus, the Canadian Final
Prospectus, the Canadian Prospectus or any Canadian Prospectus Amendment, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or DLJ expressly for use
therein; PROVIDED, FURTHER, that the Selling Shareholder will not be liable for
any amounts pursuant to this Section 7(a) in excess of the total proceeds to the
Selling Shareholder from the sale of the Shares.
(b) Each Underwriter and Sub-Underwriter will indemnify and hold
harmless the Company and the Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or the Selling Shareholder may
become subject, under the Act, the Canadian Securities Laws or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, the Canadian Preliminary Prospectus, the Amended Canadian Preliminary
Prospectus, the Canadian Final Prospectus, the Canadian Prospectus or any
Canadian Prospectus Amendment or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement, the Canadian Preliminary Prospectus, the Amended Canadian
Preliminary Prospectus, the Canadian Final Prospectus, the Canadian Prospectus
or any Canadian Prospectus Amendment in reliance upon and in conformity with
written information furnished to the Company by such Underwriter or
Sub-Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. or DLJ expressly for use therein;
and will reimburse the Company and the Selling Shareholder for any legal or
other expenses reasonably incurred by the Company or the Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
34
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
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. No
Indemnifying Party shall be required to indemnify an Indemnified Party for any
amount paid or payable by such Indemnified Party in the settlement of any
action, proceeding or investigation without the written consent of such
Indemnifying Party, with consent which shall not be unreasonably withheld.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholder on the one
hand and the Underwriters and Sub-Underwriters on the other from the offering of
the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then each indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company and the Selling Shareholder on the
one hand and the Underwriters and Sub-Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholder on the one hand and the Underwriters and the
Sub-Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company and the Selling Shareholder bear to the total underwriting discounts
and commissions received by the Underwriters and the Sub-Underwriters, in each
case as set forth in the table on the cover page of the Prospectus and the
Canadian Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Selling Shareholder on the one hand
or the Underwriters and Sub-Underwriters on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
35
such statement or omission. The Company, the Selling Shareholder and the
Underwriters and Sub-Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (d) were determined by PRO RATA
allocation (even if the Underwriters and Sub-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
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter or Sub-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 Underwriter
or Sub-Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' and Sub-Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Shareholder
under this Section 7 shall be in addition to any liability which the Company and
the Selling Shareholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter or
Sub-Underwriter within the meaning of the Act; and the obligations of the
Underwriters and Sub-Underwriters under this Section 7 shall be in addition to
any liability which the respective Underwriters and Sub-Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (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 to each person, if any, who controls the Company or the Selling
Shareholder within the meaning of the Act.
8. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company and the Selling Shareholder shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such Shares on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Shareholder that you have so arranged for the purchase of such
Shares, or the Company and the Selling Shareholder notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Shareholder shall have the right to postpone a Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement, the Prospectus or the Canadian
Prospectus, or in any other documents or arrangements, and the Company agrees to
file promptly any amendments to the Registration Statement, the Prospectus or
the Canadian Prospectus which in your opinion may thereby be made necessary. The
term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such Shares.
36
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Shareholder as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all the Shares to be purchased at such Time of Delivery,
then the Company and the Selling Shareholder shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Shareholder as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Shareholder shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Shareholder, except for the expenses
to be borne by the Company and the Selling Shareholder and the Underwriters as
provided in Section 5 hereof and the indemnity and contribution agreements in
Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
9. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Shareholder and the several
Underwriters and Sub-Underwriters, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Underwriter or Sub-Underwriter
or any controlling person of any Underwriter or Sub-Underwriter, or the Company,
or the Selling Shareholder, or any officer or director or controlling person of
the Company, or any controlling person of the Selling Shareholder, and shall
survive delivery of and payment for the Shares.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subsection (a) of Section 7 hereof, the
representations and warranties in subsections (a)(ii) and (a)(iii) of Section 1
hereof and any representation or warranty as to the accuracy of the Registration
Statement or the Prospectus contained in any certificate furnished by the
Company pursuant to Section 6 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company of expenses
incurred or paid in the successful defense of any action, suit or proceeding)
arising under the Act, shall not extend to the extent of any interest therein of
a controlling person or partner of an Underwriter or Sub-Underwriter who is a
director, officer or controlling person of the Company when the Registration
Statement has become effective or who, with his or her consent, is named in the
Registration Statement as about to become a director of the Company, except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public policy
as expressed in the Act. Unless in the opinion of counsel for the Company the
matter has been settled by controlling precedent, the
37
Company will, if a claim for such indemnification is asserted, submit to a court
of appropriate jurisdiction the question of whether such interest is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
10. If this Agreement shall be terminated pursuant to Section 8 hereof,
neither the Company nor the Selling Shareholder shall then be under any
liability to any Underwriter or Sub-Underwriter except as provided in Sections 5
and 7 hereof; but, if for any other reason any Shares are not delivered by or on
behalf of the Company and the Selling Shareholder as provided herein, the
Company and the Selling Shareholder pro rata (based on the number of Shares to
be sold by the Company and Selling Shareholder hereunder) will reimburse the
Underwriters and Sub-Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters and Sub-Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and the Selling Shareholder shall then be under no further
liability to any Underwriter or Sub-Underwriter in respect of the Shares not so
delivered except as provided in Sections 5 and 7 hereof.
11. In all dealings hereunder, you shall act on behalf of each of the
Underwriters and Sub-Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter or Sub-Underwriter made or given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. and DLJ on behalf of you as the representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters or the Sub-Underwriters shall be delivered
or sent by mail, telex or facsimile transmission to you as the representatives
in care of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Registration Department; if to the Selling Shareholder shall
be delivered or sent by mail, telex or facsimile transmission to counsel for the
Selling Shareholder at its address set forth in Schedule E hereto; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter or its
Sub-Underwriter affiliate pursuant to Section 7(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter or its
Sub-Underwriter affiliate 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 Shareholder by you on request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
12. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Sub-Underwriters, the Company and the Selling
Shareholder and, to the extent provided in Sections 7 and 9 hereof, the officers
and directors of the Company and each person who controls the Company, the
Selling Shareholder or any Underwriter or Sub-Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Shares from any Underwriter or Sub-Underwriter shall be
deemed a successor or assign by reason merely of such purchase.
13. 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.
38
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement may be executed by any one or 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.
16. The Company and its subsidiaries agree that any suit, action or
proceeding against them brought by any Underwriter or Sub-Underwriter, the
directors, officers, employees and agents of any Underwriter, or by any person
who controls any Underwriter or Sub-Underwriter, arising out of or based upon
this Agreement or the transactions contemplated hereby, may be instituted in any
State or Federal court in The City of New York, and waive any objection which
they may now or hereafter have to the laying of venue of any such proceeding,
and irrevocably submit to the non-exclusive jurisdiction of such courts in any
suit, action or proceeding. Each of the Company and the Selling Shareholder has
appointed CT Corporation System as its authorized agent (the "AUTHORIZED AGENT")
upon whom process may be served in any suit, action or proceeding arising out of
or based upon this Agreement or the transactions contemplated herein that may be
instituted in any State or Federal court in The City of New York, by any
Underwriter or Sub-Underwriter, the directors, officers, employees and agents of
any Underwriter or Sub-Underwriter, or by any person, if any, who controls any
Underwriter or Sub-Underwriter, and expressly accept the non-exclusive
jurisdiction of any such court in respect of any such suit, action or
proceeding. Each of the Company and the Selling Shareholder hereby represents
and warrants that the Authorized Agent has accepted such appointment and has
agreed to act as said agent for service of process, and each of the Company and
the Selling Shareholder agrees to take any and all action, including the filing
of any and all documents that may be necessary to continue such appointment in
full force and effect as aforesaid. Service of process upon the Authorized Agent
shall be deemed, in every respect, effective service of process upon the Company
or the Selling Shareholder, as the case may be. Notwithstanding the foregoing,
any action arising out of or based upon this Agreement may be instituted by any
Underwriter or Sub-Underwriter, the directors, officers, employees and agents of
any Underwriter or Sub-Underwriter, or by any person who controls any
Underwriter or Sub-Underwriter, in any court of competent jurisdiction in
Canada.
39
If the foregoing is in accordance with your understanding, please sign
and return to us one for the Company and each of the Representatives plus one
for each counsel, if any counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters and the Sub-Underwriters, this letter
and such acceptance hereof shall constitute a binding agreement among each of
the Underwriters and the Sub-Underwriters, the Company and the Selling
Shareholder. It is understood that your acceptance of this letter on behalf of
each of the Underwriters and the Sub-Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Shareholder for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
360NETWORKS INC.
By:
-----------------------------------
Name:
Title:
LEDCOR LIMITED PARTNERSHIP
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
Credit Suisse First Boston Securities Corporation,
TD Securities Inc.,
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Chase Securities Inc.,
RBC Dominion Securities Inc.
Warburg Dillon Read LLC.
BY:
---------------------------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
BY:
---------------------------------------------
(▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation)
On behalf of each of the Underwriters and Sub-Underwriters
40
SCHEDULE A
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.................................................
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation.................
Credit Suisse First Boston Corporation..............................
TD Securities Inc...................................................
Bear, ▇▇▇▇▇▇▇ & Co. Inc.............................................
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc...............................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................................
Chase Securities Inc................................................
RBC Dominion Securities Inc.........................................
Warburg Dillon Read LLC.............................................
--------------- ------------------
Total............................................................... 46,000,000 6,900,000
=============== ==================
SUB-UNDERWRITERS
----------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc.
Credit Suisse First Boston Securities Canada Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Canada Limited
▇▇▇▇▇▇▇ Warburg Dillon Read Inc.
41
SCHEDULE B
----------
SUBSIDIARIES
Ledcom Holdings Ltd.
Ledcor Communications Ltd.
Ledcor ▇▇▇▇▇ Inc.
Ledcor Engineering Inc.
Worldwide Fiber Finance Ltd.
Worldwide Fiber Networks Ltd.
Worldwide Fiber (F.O.T.S.) Ltd.
Worldwide Fiber (F.O.T.S.) No. 2, Inc.
WFI-CN Fibre Inc.
Worldwide Fiber Comuncations Ltd.
Worldwide Fiber (F.O.T.S.) No. 3, Ltd.
WFNS Holdings Ltd.
Worldwide Fiber Network Services Ltd.
Ledcor Communications, Inc.
Worldwide Fiber (USA), Inc.
Worldwide Fiber Networks, Inc.
Worldwide Fiber (F.O.T.S.), Inc.
Worldwide Fiber IC Holdings, Inc.
Worldwide Fiber IC LLC
IC Fiber Alabama LLC
IC Fiber Illinois LLC
IC Fiber Iowa LLC
IC Fiber Kentucky LLC
IC Fiber Mississippi LLC
IC Fiber Tennessee LLC
PFL Holdings, Inc.
Pacific Fiber Link SEA-POR, Inc.
Worldwide Fiber Network Services, Inc.
WFI Liquidity Management Hungary Limited Liability Company
WFI Urbanlink Ltd.
WFI Fiber Inc.
Worldwide Fiber Networks (UK) Limited
360 Urbanlink Ltd.
Urbanlink Holdings Ltd.
Urbanlink Equipment Ltd.
WFI Metrobuild Ltd.
Worldwide Telecom (Bermuda) Holdings Ltd.
Worldwide Telecom Limited
Worldwide Telecom (Bermuda) Ltd.
Worldwide Telecom (Barbados) Inc.
Worldwide Telecom (Denmark) ApS
Worldwide Telecom (Canada) Inc.
Worldwide Telecom (USA) Inc.
WTI Telecom (Ireland) Limited
WTI Telecom (UK) Limited
Worldwide Telecom Distribution (USA) Inc.
42
WTI Telecom Distribution (UK) Limited
360pacific (Bermuda) holdings ltd.
360pacific (Bermuda) ltd.
Threesixty pacific (Barbados) inc.
360pacific (USA) inc.
43
SCHEDULE C
MATERIAL SUBSIDIARIES
Ledcom Holdings Ltd.
Ledcor Communications Ltd.
Ledcor ▇▇▇▇▇ Inc.
Worldwide Fiber Finance Ltd.
Worldwide Fiber Networks Ltd.
Worldwide Fiber (F.O.T.S.) Ltd.
Worldwide Fiber (F.O.T.S.) No. 2, Inc.
WFI-CN Fibre Inc.
Worldwide Fiber Comuncations Ltd.
Worldwide Fiber (F.O.T.S.) No. 3, Ltd.
WFNS Holdings Ltd.
Worldwide Fiber Network Services Ltd.
Ledcor Communications, Inc.
Worldwide Fiber (USA), Inc.
Worldwide Fiber Networks, Inc.
Worldwide Fiber (F.O.T.S.), Inc.
Worldwide Fiber IC Holdings, Inc.
Worldwide Fiber IC LLC
IC Fiber Alabama LLC
IC Fiber Illinois LLC
IC Fiber Iowa LLC
IC Fiber Kentucky LLC
IC Fiber Mississippi LLC
IC Fiber Tennessee LLC
Worldwide Fiber Network Services, Inc.
WFI Liquidity Management Hungary Limited Liability Company
WFI Urbanlink Ltd.
WFI Fiber Inc.
Worldwide Fiber Networks (UK) Limited
360 Urbanlink Ltd.
Urbanlink Holdings Ltd.
Urbanlink Equipment Ltd.
WFI Metrobuild Ltd.
Worldwide Telecom (Bermuda) Holdings Ltd.
Worldwide Telecom Limited
Worldwide Telecom (Bermuda) Ltd.
Worldwide Telecom (Barbados) Inc.
Worldwide Telecom (Danmark) ApS
Worldwide Telecom (Canada) Inc.
Worldwide Telecom (USA) Inc.
WTI Telecom (Ireland) Limited
WTI Telecom (UK) Limited
Worldwide Telecom Distribution (USA) Inc.
WTI Telecom Distribution (UK) Limited
Threesixty pacific (Barbados) inc.
44
SCHEDULE D
CANADIAN COMPANIES
Ledcom Holdings Ltd.
Ledcor Communications Ltd.
Ledcor ▇▇▇▇▇ Inc.
Ledcor Engineering Inc.
Worldwide Fiber Finance Ltd.
Worldwide Fiber Networks Ltd.
Worldwide Fiber (F.O.T.S.) Ltd.
Worldwide Fiber (F.O.T.S.) No. 2, Inc.
WFI-CN Fibre Inc.
Worldwide Fiber Comuncations Ltd.
Worldwide Fiber (F.O.T.S.) No. 3, Ltd.
WFNS Holdings Ltd.
Worldwide Fiber Network Services Ltd.
WFI Urbanlink Ltd.
360 Urbanlink Ltd.
Urbanlink Holdings Ltd.
Urbanlink Equipment Ltd.
WFI Metrobuild Ltd.
Worldwide Telecom (Canada) Inc.
45
SCHEDULE E
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF SOLD IF
FIRM SHARES MAXIMUM OPTION
TO BE SOLD EXERCISED
--------------- ------------------
The Company........................................................ 44,625,000 6,941,250
The Selling Shareholder (a):................................... 1,650,000 0
----------- ----------
Total..................................................... 46,275,000 6,900,000
=========== ==========
----------
(a) The Selling Shareholder is represented by ▇▇▇▇▇▇▇▇ ▇▇▇▇.
46
SCHEDULE F
(subject to completion)
DLJ Merchant Banking Partners II L.P.
DWF SRL
GS Capital Partners III, L.P.
GSCP3 WWF (Barbados) SRL
WWF (Barbados) SRL
Providence Equity Fiber, L.P.
TYCO Group S.A.R.L.
Mackenzie Partners, LLC
Ledcor Inc.
Boston Ventures Limited Partnership V
TD Capital Group Limited
▇▇▇▇▇ Investment
Associates VI, L.P.
KEP VI, L.L.C.
Capital Communications CDPQ, Inc.
Providence Equity Partners III, L.P.
Providence Equity Operating Partners III, L.P.
Spectrum Equity Investors III, L.P.
Spectrum Entrepreneurs' Fund, L.P.
Spectrum III Investment Managers' Fund, ▇.▇.
▇▇▇▇▇▇▇ Capital Partners IV, ▇.▇.
▇▇▇▇▇▇▇ Capital Partners IV FTE, L.P.
Ontario Municipal Employees Retirement Board
Nautilus Equity Investors, LLC
IHI Hydro, Inc.
the Directors of the Company:
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
the Vice Presidents of the Company:
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
47
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
Ed Remingon
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Ledcor Limited Partnership
Worldwide Fiber Holdings Ltd.
Madison Square, Inc.
Comcast TSIX Holding, Inc. (shares from Comcast Corporation)
Liberty WF Holdings LLC
RLM Holdings, LLC
MSD Capital L.P.
MSD Select Sponsors Venture I, LLC
MSD Portfolio L.P. - Investments
DBV Investments, L.P.
MSD ED I, LLC
▇▇▇▇▇ ▇. Dell Separate Property Trust
▇▇▇▇ Communications Inc.
Oak Investment Partners IX
an affiliate of ▇▇▇▇▇ ▇'▇▇▇▇▇, Jr.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
InterNAP Network Services Corporation
divine interVentures, inc.
Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
GT Group Telecom Services
48
[PSINet Strategic Investments, Inc.]
[America On Line]
[News Corp]
[an affiliate of ▇▇▇▇▇▇ ▇▇▇▇]
[Singapore Telecommunications Limited]
Canadian National Railway Company
MI-Tech Communications, LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company,
▇▇▇▇▇▇ ▇▇▇▇▇▇,
49