Exhibit 10.02
2,500,000 Shares
Hyperion Telecommunications, Inc.
Class A Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
May 4, 1998
XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
As Lead Managers for the Several Managers
c/o Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Hyperion Telecommunications, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell outside the United States and Canada an
aggregate of 2,5000,000 shares (the "Shares") of its Class A Common Stock, $.01
par value per share (the "Class A Common Stock"), to the several underwriters
named in Schedule I hereto (the "Managers"), for whom Xxxxx Xxxxxx Inc., Credit
Suisse First Boston (Europe) Limited and NationsBanc Xxxxxxxxxx Securities LLC
are acting as representatives (the "Lead Managers").
It is understood that the Company is concurrently entering into a U.S.
Underwriting Agreement, dated the date hereof (the "U.S. Underwriting
Agreement"), providing for the sale of 10,000,000 shares (the "Firm U.S.
Shares") of the Class A Common Stock (plus an option granted to purchase up to
an additional 1,875,000 shares of Class A Common Stock (the "Additional U.S.
Shares")) solely for the purpose of covering over-allotments) through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters"), for whom Xxxxx Xxxxxx Inc., Credit Suisse First Boston
Corporation and NationsBanc Xxxxxxxxxx Securities LLC are acting as
representatives (the " Representatives"). All shares of Class A Common Stock
proposed to be offered to the U.S Underwriters pursuant to the U.S. Underwriting
Agreement, including the Firm U.S. Shares and the Additional U.S. Shares, are
herein called the "U.S. Shares"; the U.S. Shares and the Shares, collectively,
are herein called the "Underwritten Shares."
The Company also understands that the Lead Managers and the
Representatives have entered into an agreement (the "Agreement Between U.S.
Underwriters and Managers") contemplating the coordination of certain
transactions between the Managers and the U.S. Underwriters and that, pursuant
thereto and subject to the conditions set forth therein, the Managers may
purchase from the U.S. Underwriters a portion of the U.S. Shares or sell to the
U.S. Underwriters a portion of the Shares. The Company understands that any such
purchases and sales between the Managers and the U.S. Underwriters shall be
governed by the Agreement Between Managers and U.S. Underwriters and shall not
be governed by the terms of this Agreement or the U.S. Underwriting Agreement.
The Company wishes to confirm as follows its agreement with you and the
other several Managers on whose behalf you are acting, in connection with the
several purchases of the Shares by the Managers.
1. Registration Statement and Prospectuses. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-1 (File No. 333-48209) under the Act,
including prospectuses subject to completion, relating to the Underwritten
Shares. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it becomes effective, and as thereafter amended by
post-effective amendment. The term "Prospectuses" as used in this Agreement
means the prospectuses in the forms included in the Registration Statement or,
if the prospectuses included in the Registration Statement omit information in
reliance on Rule 430A under the Act and such information is included in
prospectuses filed with the Commission pursuant to Rule 424(b) under the Act,
the term "Prospectuses" as used in this Agreement means the prospectuses in the
forms included in the Registration Statement as supplemented by the addition of
the Rule 430A information contained in the prospectuses filed with the
Commission pursuant to Rule 424(b). The term "Prepricing Prospectuses" as used
in this Agreement means the prospectuses subject to completion in the forms
included in the Registration Statement at the time of the initial filing of the
Registration Statement with the Commission, and as such prospectuses shall have
been amended from time to time prior to the date of the Prospectuses.
It is understood that two forms of Prepricing Prospectus and two forms
of Prospectus are to be used in connection with the offering and sale of the
Underwritten Shares: a Prepricing Prospectus and a Prospectus relating to the
U.S. Shares that are to be offered and sold in the United States or Canada to
U.S. or Canadian Persons (the "U.S. Prepricing Prospectus" and the "U.S.
Prospectus," respectively), and a Prepricing Prospectus and a Prospectus
relating to the Shares that are to be offered and sold outside the United States
or Canada to persons other than U.S. or Canadian Persons (the "International
Prepricing Prospectus" and the "International Prospectus," respectively). The
U.S. Prospectus and the International Prospectus are herein collectively
referred to as the "Prospectuses," and the U.S. Prepricing Prospectus and the
International Prepricing Prospectus are herein called the "Prepricing
Prospectuses." For purposes of this Agreement: "Rules and Regulations" means the
rules and regulations adopted by the Commission under either the Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable;
"U.S. or Canadian Person" means any resident or national of the United States or
Canada, any corporation, partnership or other entity created or organized in or
under the laws of the United States or Canada or any estate or trust the income
of which is subject to United States or Canadian income taxation regardless of
the source of its income (other than the foreign branch of any U.S. or Canadian
Person), and includes any United States or Canadian branch of a person other
than a U.S. or Canadian Person; "United States" means the United States of
America (including the states thereof and the District of Columbia) and its
territories, its possessions and other areas subject to its jurisdiction; and
"Canada" means Canada and its territories, its possessions and other areas
subject to its jurisdiction.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject
to all the terms and conditions set forth herein, to issue and sell to each
Manager and, upon the basis of the representations, warranties and agreements of
the Company herein contained and subject to all the terms and conditions set
forth herein, each Manager agrees, severally and not jointly, to purchase from
the Company, at a purchase price of $15.00 per Share (the "purchase price per
share"), the number of Shares set forth opposite the name of such Manager in
Schedule I hereto (or such number of Shares increased as set forth in Section 10
hereof).
3. Terms of Public Offering. The Company has been advised by you that
the Managers propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable and initially to offer the
Shares upon the terms set forth in the International Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to the Managers
of and payment for the Shares shall be made at the office of Xxxxxx and Xxxxxxx,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on
May 8, 1998 (the "Closing Date"). The place of closing for the Shares and the
Closing Date may be varied by agreement between you and the Company.
Certificates for the Shares to be purchased hereunder shall be
registered in such names and in such denominations as you shall request prior to
9:30 A.M., New York City time, on the second business day preceding the Closing
Date. Such certificates shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date. The certificates evidencing the
Shares to be purchased hereunder shall be delivered to you on the Closing Date,
against payment of the purchase price therefor in immediately available funds.
5. Agreements of the Company. The Company agrees with the several
Managers as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Company will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as possible and will advise
you promptly and, if requested by you, will confirm such advice in writing, when
the Registration Statement or such post-effective amendment has become
effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for amendment of or a supplement to the Registration Statement, the Prepricing
Prospectuses or the Prospectuses or for additional information; (ii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of the happening of any event which makes any statement of a material
fact made in the Registration Statement or the Prospectuses untrue or which
requires the making of any additions to or changes in the Registration Statement
or the Prospectuses in order to state a material fact required by the Act or the
regulations thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectuses to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(c) The Company will furnish to you, without charge, four
signed copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits thereto, and will also furnish to you, without charge, such number of
conformed copies of the Registration Statement as originally filed and of each
amendment thereto, but without exhibits, as you may request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectuses
of which you shall not previously have been advised or to which you shall object
after being so advised or (ii) so long as, in the written opinion of counsel for
the Managers, a prospectus is required to be delivered in connection with sales
by any Manager or dealer, file any information, documents or reports pursuant to
the Exchange Act, without delivering a copy of such information, documents or
reports to you, as Lead Managers for the Managers, prior to or concurrently with
such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered to you, without charge, in such quantities as you have
requested, copies of each form of the International Prepricing Prospectus. The
Company consents to the use, in accordance with the provisions of the Act and
with the securities or Blue Sky laws of the jurisdictions in which the Shares
are offered by the several Managers and by dealers, prior to the date of the
International Prospectus, of each International Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as possible and thereafter from time to time for such period as in the written
opinion of counsel for the Managers a prospectus is required by the Act to be
delivered in connection with sales by any Manager or dealer, the Company will
expeditiously deliver to each Manager and each dealer, without charge, as many
copies of the International Prospectus as you may request. The Company consents
to the use of the International Prospectus in accordance with the provisions of
the Act and with the securities or Blue Sky laws of the jurisdictions in which
the Shares are offered by the several Managers and by all dealers to whom Shares
may be sold, both in connection with the offering and sale of the Shares and for
such period of time thereafter as the International Prospectus is required by
the Act to be delivered in connection with sales by any Manager or dealer. If
during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Managers is required to be set
forth in the International Prospectus or should be set forth therein in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend the
International Prospectus to comply with the Act or any other law, the Company
will forthwith prepare and, subject to the provisions of paragraph (d) above,
file with the Commission an appropriate supplement or amendment thereto and will
expeditiously furnish to the Managers and dealers a reasonable number of copies
thereof.
(g) The Company will cooperate with you and with counsel for
the Managers in connection with the registration or qualification of the Shares
for offering and sale by the several Managers and by dealers under the
securities or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares, in any jurisdiction where it is not now so
subject.
(h) The Company will make generally available to its security
holders a consolidated earnings statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as practicable
after the end of such period, which consolidated earnings statement shall
satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years after the date of this
Agreement, the Company will (i) make generally available a copy of each report
of the Company mailed to stockholders or filed with the Commission or the Nasdaq
National Market and will promptly notify you of such mailing or filing and (ii)
furnish to you from time to time such other information concerning the Company
and its Subsidiaries as you may request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 10 hereof or by notice given by you terminating
this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement
shall be terminated by the Managers because of any failure or refusal on the
part of the Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to negotiate in good faith regarding the
reimbursement of the Lead Managers for all out-of-pocket expenses (including
fees and expenses of counsel for the Managers) incurred by you in connection
herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares substantially in accordance with the description set forth in the
Prospectuses.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectuses pursuant to Rule 424(b) under the Act and will
advise you of the time and manner of such filing.
(m) For a period of 180 days after the date hereof (the
"Lock-up Period"), the Company will not, without the prior written consent of
Xxxxx Xxxxxx Inc., offer, sell, contract to sell or otherwise dispose of any
Common Stock (or any securities convertible into or exchangeable for Common
Stock) or grant any options or warrants to purchase Common Stock, except for (i)
sales to the Managers pursuant to this Agreement and the U.S. Underwriters
pursuant to the U.S. Underwriting Agreement, (ii) the issuance of shares to
Adelphia Communications Corporation (the "Parent") in connection with the
Adelphia Note Contribution (as defined in the Prospectuses) and (iii) the
issuance of shares to the Parent in connection with the Adelphia Share Purchase
(as defined in the Prospectuses); (iv) the issuance of options or grants under
the Company's Long-Term Incentive Compensation Plan; (v) the issuance of the
Adelphia Warrant (as defined in the Prospectuses); (vi) the issuance of the
Additional MCI Warrants (as defined in the Prospectuses) and any other warrants
required to be issued by the Company in accordance with the Company's agreement
with MCImetro Access Transmission Services, Inc. or the Warrants (as defined 9n
the Prospectuses); (vii) the issuance of shares pursuant to the exercise of
warrants and options described in clauses (vi), (v) and (vi), the MCI Warrant
(as defined in the Prospectuses) and the Xxxxxxx Warrant (as defined in the
Prospectuses); (viii) the issuance of Class B Common Stock upon the exercise of
outstanding Class B Warrants (as defined in the Prospectuses); and (ix) the
issuance of shares upon the conversion of Class B Common Stock..
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance satisfactory to you, signed by the Parent and
each of the Company's stockholders set forth on Schedule II hereto.
(o) Except as stated in this Agreement and in the U.S.
Underwriting Agreement and in the Prepricing Prospectuses and Prospectuses, the
Company has not taken, nor will it take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate the
sale or resale of the Shares.
(p) The Company will use its best efforts to have the Common
Stock listed, subject to notice of issuance, on the Nasdaq National Market
concurrently with the effectiveness of the Registration Statement.
6. Representations and Warranties of the Company. The Company represents
and warrants to each Manager that:
(a) Each International Prepricing Prospectus included as part
of the Registration Statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act; except that
this representation and warranty does not apply to statements in or omissions
from such International Prepricing Prospectus made in reliance upon and in
conformity with information relating to any Manager or Manager furnished to the
Company in writing by a Manager through the Representatives or by a Manager
through the Lead Managers expressly for use therein. The Commission has not
issued any order preventing or suspending the use of any Prepricing Prospectus.
(b) The Registration Statement in the form in which it became
or becomes effective and also in such form as it may be when any post-effective
amendment thereto has or shall become effective and the Prospectuses and any
supplement or amendment thereto when filed with the Commission under Rule 424(b)
under the Act, complied or will comply in all material respects with the
provisions of the Act and did not or will not at any such times 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;
except that this representation and warranty does not apply to statements in or
omissions from the Registration Statement or the Prospectuses made in reliance
upon and in conformity with information relating to any Manager or Manager
furnished to the Company in writing by a Manager through the Representatives or
by a Manager through the Lead Managers expressly for use therein.
(c) All the outstanding shares of Common Stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights; the Shares have been duly
authorized and, when issued and delivered to the Managers against payment
therefor in accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and free of any preemptive or similar rights; and the capital
stock of the Company conforms to the description thereof in the Registration
Statement and the Prospectuses.
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby, including, without
limitation, the corporate power and authority to issue, sell and deliver the
Shares as provided herein.
(e) Each of this Agreement and the U.S. Underwriting Agreement
has been duly and validly authorized, executed and delivered by the Company and
is the legal, valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except insofar as indemnification and
contribution provisions may be limited by applicable law or public policy or
equitable principles and subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
(f) Each of the Company and its Subsidiaries (as defined) (A)
has been duly organized, is validly existing as a corporation or limited
liability company, as applicable, in good standing under the laws of its
respective jurisdiction of formation, (B) has all requisite corporate or limited
liability company power and authority to carry on its business as it is
currently being conducted and as described in the Registration Statement and the
Prospectuses and to own, lease and operate its properties and (C) is duly
qualified and in good standing as a foreign corporation 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, with respect to this clause (C), where the failure of the
Company and its Subsidiaries to be so qualified or in good standing does not and
could not reasonably be expected to (x) individually or in the aggregate, result
in a material adverse effect on the assets, liabilities, business, results of
operations, condition (financial or otherwise), cash flows, affairs or prospects
of the Company and the Subsidiaries, taken as a whole, (y) interfere with or
adversely affect the issuance or marketability of the Common Stock or (z) in any
manner draw into question the validity of this Agreement or the ability to
conduct its business in the manner set forth in the Registration Statements and
the Prospectuses (any of the events set forth in clauses (x), (y) or (z), a
"Material Adverse Effect"). The Company has no direct or indirect subsidiaries
as of the Closing Date other than those set forth on Schedule III hereto
(referred to herein collectively as "Subsidiaries" and individually as a
"Subsidiary").
(g) Each of the Joint Ventures (as defined) (A) has been duly
formed as a partnership, limited liability company or corporation, as
applicable, under the laws of its respective jurisdiction of formation, (B) has
all requisite partnership, limited liability company or corporate power and
authority, as applicable, to carry on its business as it is currently being
conducted and as described in the Registration Statement and the Prospectuses
and to own, lease and operate its properties and (C) is duly qualified and in
good standing as a foreign partnership, limited liability company or
corporation, 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, with respect to this clause (C), where the
failure to be so qualified or in good standing does not and could not reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor its
Subsidiaries has any ownership interest in any Joint Venture other than those
set forth on Schedule IV hereto (referred to herein collectively as "Joint
Ventures" and individually a "Joint Venture").
(h) All of the outstanding capital stock of each Subsidiary is
owned by the Company, free and clear of any security interest, claim, lien,
limitations on voting rights or other charge or encumbrance, other than security
interests, claims, liens, limitation on voting rights or other charges or
encumbrances arising from the pledge of the capital stock of the companies
pledged as security for the Company's 12 1/4% Senior Secured Notes due 2004.
Except as disclosed in the Prospectuses, there are not currently, and will not
be as a result of the transactions contemplated hereby, any outstanding
subscriptions, rights, warrants, calls, commitments of sale or options to
acquire, or instruments convertible into or exchangeable for, any capital stock
or other equity interest of the Company, any Subsidiary or any Joint Venture.
(i) None of the Company, the Subsidiaries or the Joint
Ventures is and, after giving effect to the transactions contemplated hereby
will be (A) in violation of its charter and bylaws, partnership agreement, or
operating agreement as applicable, (B) in default in the performance of any
bond, debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties is subject, or (C) in violation of any local, state or Federal law,
statute, ordinance, rule, regulation, requirement, judgment or court decree
(including, without limitation, the Communications Act of 1934, as amended by
the Telecommunications Act of 1996 (the "Telecommunications Act"), and the rules
and regulations of the Federal Communications Commission (the "FCC") and
environmental laws, statutes, ordinances, rules, regulations, judgments or court
decrees) applicable to the Company, any Subsidiary, any Joint Venture or any of
their respective assets or properties (whether owned or leased) other than, in
the case of clauses (B) and (C), any default or violation that could not
reasonably be expected to have a Material Adverse Effect. There exists no
condition that, with notice, the passage of time or otherwise, would constitute
a default under any such document or instrument that could reasonably be
expected to have a Material Adverse Effect.
(j) There is (i) no action, suit or proceeding before or by
any court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or threatened or contemplated to which the Company, any of
the Subsidiaries or any of the Joint Ventures is or may be a party or to which
the business or property of the Company, any Subsidiary or any Joint Venture is
subject, (ii) no local, state or Federal law, statute, ordinance, rule,
regulation, requirement, judgment or court decree (including, without
limitation, the Telecommunications Act and the rules and regulations of the FCC)
or order that has been enacted, adopted or issued by any governmental agency or,
to the best of the Company's knowledge, that has been proposed by any
governmental body or (iii) no injunction, restraining order or order of any
nature by a federal or state court or foreign court of competent jurisdiction to
which the Company, any Subsidiary or any Joint Venture is or could reasonably be
expected to be subject or to which the business, assets, or property of the
Company, any Subsidiary or any Joint Venture are could reasonably be expected to
be subject, that, in the case of clauses (i), (ii) and (iii) above, (y) is
required to be disclosed in the Registration Statement or the Prospectuses and
that is not so disclosed, or (z) could reasonably be expected to individually or
in the aggregate, result in a Material Adverse Effect.
(k) Neither the issuance and sale of the Shares, the
execution, delivery or performance by the Company of this Agreement or the U.S.
Underwriting Agreement by the Company, or the consummation by the Company of the
transactions contemplated hereby and thereby violate, conflict with or
constitute a breach of any of the terms or provisions of, or a default under (or
an event that with notice or the lapse of time, or both, would constitute a
default), or require consent under, or result in the imposition of a lien or
encumbrance on any properties of the Company, any Subsidiary or any Joint
Venture, or an acceleration of any indebtedness of the Company, any Subsidiary
or any Joint Venture pursuant to, (i) the charter or bylaws of the Company or
any Subsidiary or the partnership agreement or operating agreement governing any
Joint Venture, (ii) any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company, any Subsidiary or
any Joint Venture is a party or by which any of them or their property is or may
be bound, (iii) any local, state or Federal law, statute, ordinance, rule,
regulation or requirement (including, without limitation, the Telecommunications
Act and the rules and regulations of the FCC and environmental laws, statutes,
ordinances, rules or regulations) applicable to the Company, any Subsidiary, any
Joint Venture or any of their respective assets or properties or (iv) any
judgment, order or decree of any court or governmental agency or authority
having jurisdiction over the Company, the Subsidiaries, the Joint Ventures or
any of their assets or properties, except in the case of clauses (ii), (iii) and
(iv) for such violations conflicts, breaches, defaults, consents, impositions of
liens or accelerations that would not singly, or in the aggregate, have a
Material Adverse Effect. Other than as described in the Prospectuses, no
consent, approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, (A) any court or governmental
agency, body or administrative agency (including, without limitation, the FCC)
or (B) any other person is required for (1) the execution, delivery and
performance by the Company of this Agreement or the U.S. Underwriting Agreement
or (2) the issuance and sale of the Shares and the transactions contemplated
hereby and thereby, except (x) such as have been obtained and made under the Act
and state securities or Blue Sky laws and regulations or such as may be required
by the NASD or (y) where the failure to obtain any such consent, approval,
authorization or order of, or filing registration, qualification, license or
permit would not reasonably be expected to result in a Material Adverse Effect.
(l) The accountants who have certified or shall certify the
financial statements included in the Registration Statement and the Prospectuses
are independent public accountants as required by the Act. The historical
financial statements of the Company and each of the Subsidiaries comply as to
form in all material respects with the requirements applicable to registration
statements on Form S-1 under the Act and present fairly in all material respects
the financial position and results of operations of the Company and each of its
Subsidiaries, at the respective dates and for the respective periods indicated.
Such financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout the
periods presented. The other financial information and data included in the
Registration Statement and Prospectuses, historical and pro forma, are
accurately presented in all material respects and prepared on a basis consistent
with the financial statements, historical and pro forma, included in the
Prospectuses and the books and records of the Company, each of its Subsidiaries
and each of its Joint Ventures, as applicable. The statistical information and
data included in the Prospectuses are accurately presented in all material
respects.
(m) The financial statements, together with related schedules
and notes, included in the Registration Statement and the Prospectuses, present
fairly the consolidated financial position, results of operations and changes in
financial position of the Company and the Subsidiaries on the basis stated in
the Registration Statement at the respective dates or for the respective periods
to which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data included
in the Registration Statement and the Prospectuses are accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company and the Subsidiaries.
(n) Except as disclosed in the Registration Statement and the
Prospectuses, subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectuses, (i) none of the
Company, any Subsidiary or any Joint Venture has incurred any liabilities or
obligations, direct or contingent, which are material, individually or in the
aggregate, to the Company, the Subsidiaries and the Joint Ventures taken as a
whole, not entered into any transaction not in the ordinary course of business,
(ii) there has not been, singly or in the aggregate, any change or development
which could reasonably be expected to result in a Material Adverse Effect, (iii)
there has been no dividend or distribution of any kind declared, paid or made by
the Company or its Subsidiaries on any class of capital stock and (iv) there has
been no distribution of profits or return of capital contribution by any Joint
Venture.
(o) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectuses, the Prospectuses or other materials, if any, permitted
by the Act.
(p) There is (i) no unfair labor practice complaint pending
against the Company, or any Joint Venture or threatened, before the National
Labor Relations Board, any state or local labor relations board or any foreign
labor relations board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement is so
pending or threatened against the Company, any Subsidiary or any Joint Venture,
(ii) no significant strike, labor dispute, slowdown or stoppage pending against
the Company, any Subsidiary or any Joint Venture threatened against the Company,
any Subsidiary or the Joint Venture and (iii) no union representation question
existing with respect to the employees of the Company, any Subsidiary or any
Joint Venture that, in the case of clauses (i), (ii) or (iii), could reasonably
be expected to result in a Material Adverse Effect. To the best of the Company's
knowledge, no collective bargaining organizing activities are taking place with
respect to the Company, the Subsidiaries or the Joint Ventures. None of the
Company, any Subsidiary or any Joint Venture has violated (A) any federal, state
or local law or foreign law relating to discrimination in hiring, promotion or
pay of employees, (B) any applicable wage or hour laws or (C) any provision of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the rules and regulations thereunder, which in the case of clause (A), (B) or
(C) above could reasonably be expected to result in a Material Adverse Effect.
(q) None of the Company, any Subsidiary or any Joint Venture
has violated any environmental, safety or similar law or regulation applicable
to it or its business or property relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants ("Environmental Laws"), lacks any permit, license or other
approval required of it under applicable Environmental Laws is violating any
term or condition of such permit, license or approval which could reasonably be
expected to, either individually or in the aggregate, have a Material Adverse
Effect.
(r) Each of the Company, the Subsidiaries and the Joint
Ventures has (i) good and marketable title to all of the properties and assets
described in the Prospectuses as owned by it, free and clear of all liens,
charges, encumbrances and restrictions, except such as are described in the
Prospectuses or as would not have a Material Adverse Effect, (ii) peaceful and
undisturbed possession under all leases to which any of them is a party as
lessee, (iii) all licenses, certificates, permits, authorizations, approvals,
franchises and other rights from, and has made all declarations and filings
with, all federal, state and local authorities (including, without limitation,
the FCC), all self-regulatory authorities and all courts and other tribunals
(each an "Authorization") necessary to engage in the business as presently
conducted by any of them in the manner described in the Prospectuses, except as
described in the Prospectuses or where failure to hold such Authorizations would
not, individually or in the aggregate, have a Material Adverse Effect and (iv)
no reason to believe that any governmental body or agency is considering
limiting, suspending or revoking any such Authorization. Except where the
failure to be in full force and effect would not have a Material Adverse Effect,
all such Authorizations are valid and in full force and effect and each of the
Company, the Subsidiaries and the Joint Ventures is in compliance with the terms
and conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities having jurisdiction with respect thereto. All leases
to which the Company, the Subsidiaries and the Joint Ventures is a party are
valid and binding and no default by the Company, any Subsidiary or any Joint
Venture has occurred and is continuing thereunder and no defaults by the
landlord are existing under any such lease that could reasonably be expected to
result in a Material Adverse Effect.
(s) Each of the Company, the Subsidiaries and the Joint
Ventures owns, possesses or has the right to employ all patents, patent rights,
licenses (including all FCC, state, local or other jurisdictional regulatory
licenses), inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
software, systems or procedures), trademarks, service marks and trade names,
inventions, computer programs, technical data and information (collectively, the
"Intellectual Property") presently employed by the Company, its Subsidiaries or
the Joint Ventures in connection with the businesses now operated by it or which
are proposed to be operated by the Company, its Subsidiaries or the Joint
Ventures free and clear of and without violating any right, claimed right,
charge, encumbrance, pledge, security interest, restriction or lien of any kind
of any other person and none of the Company, any Subsidiary or any Joint Venture
has received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing except as could not reasonably be
expected to have a Material Adverse Effect. The use of the Intellectual Property
in connection with the business and operations of the Company, the Subsidiaries
and the Joint Ventures does not infringe on the rights of any person, except
would not have a Material Adverse Effect.
(t) None of the Company, any Subsidiary, any Joint Venture or
any of their respective officers, directors, partners, employees, agents or
affiliates or any other person acting on behalf of the Company, any Subsidiary
or any Joint Venture, as the case may be, has, directly or indirectly, given or
agreed to give any money, gift or similar benefit (other than legal price
concessions to customers in the ordinary course of business) to any customer,
supplier, employee or agent of a customer or supplier, official or employee of
any governmental agency (domestic or foreign), instrumentality of any government
(domestic or foreign) or any political party or candidate for office (domestic
or foreign) or other person who was, is or may be in a position to help or
hinder the business of the Company, any Subsidiary or any Joint Venture (or
assist the Company, any Subsidiary or any Joint Venture in connection with any
actual or proposed transaction) which (i) might subject the Company, any
Subsidiary or any Joint Venture, or any other individual or entity to any damage
or penalty in any civil, criminal or governmental litigation or proceeding
(domestic or foreign), (ii) if not given in the past, could reasonably be
expected to have had a Material Adverse Effect on the assets, business or
operations of the Company, any Subsidiary or any Joint Venture or (iii) if not
continued in the future, could reasonably be expected to have a Material Adverse
Effect.
(u) All tax returns required to be filed by the Company, each
of the Subsidiaries and each of the Joint Ventures in all jurisdictions have
been so filed. All taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such entities
or that are due and payable have been paid, other than those being contested in
good faith and for which adequate reserves have been provided or those currently
payable without penalty or interest. There are no proposed additional tax
assessments against the Company, any Subsidiary, any Joint Venture or the assets
or property of the Company, any Subsidiary or any Joint Venture.
(v) None of the Company, the Subsidiaries or the Joint
Ventures is now, and after sale of the Shares to be sold by the Company
hereunder and application of the net proceeds from such sale as described in the
Prospectuses under the caption "Use of Proceeds" will not be (i) an "investment
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "Investment Company
Act"), or (ii) a "holding company" or a "subsidiary company" or an "affiliate"
of a holding company within the meaning of the Public Utility Holding Company
Act of 1935, as amended (the "PUHC Act").
(w) Except as disclosed in the Prospectuses, there are no
holders of securities of the Company, the Subsidiaries or the Joint Ventures
who, by reason of the filing of the Registration Statement or consummation of
the transactions contemplated by this Agreement or the U.S. Underwriting
Agreement, have the right to request or demand that the Company, any of the
Subsidiaries or any of the Joint Ventures register any of its securities
(including, without limitation, Class A Common Stock and Class B Common Stock)
under the Act. No such rights with respect to any shares of Class A Common Stock
have been exercised as of the date hereof.
(x) Each of the Company, the Subsidiaries and the Joint
Ventures maintains a system of internal accounting controls sufficient to
provide reasonable assurance that: (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (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 thereto.
(y) Each of the Company, the Subsidiaries and the Joint
Ventures maintains insurance covering its properties, operations, personnel and
businesses. Such insurance insures against such losses and risks as are adequate
in accordance with customary industry practice to protect the Company, the
Subsidiaries, the Joint Ventures and their respective businesses. None of the
Company, any Subsidiary or any Joint Venture has received notice from any
insurer or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance. All such
insurance is outstanding and duly in force on the date hereof.
(z) None of the Company, any Subsidiary or any Joint Venture
has (i) taken, directly or indirectly, any action designed to, or that 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
Class A Common Stock, (ii) since the date of the Prospectuses, (A) sold, bid
for, purchased or paid any person any compensation for soliciting purchases of
the Common Stock or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(aa) Set forth on Exhibit A hereto is a list of each employee
pension or benefit plan with respect to which the Company or any corporation
considered an affiliate of the Company within the meaning of Section 407(d)(7)
of ERISA (an "ERISA Affiliate") is a party in interest or disqualified person.
The execution and delivery of this Agreement and the issuance and sale of the
Shares will not involve any prohibited transaction within the meaning of Section
406 of ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended.
(bb) None of (A) the execution, delivery and performance of
this Agreement or the U.S. Underwriting Agreement, (B) the issuance and sale of
the Shares, (C) the application of the proceeds from the issuance and sale of
the Shares or (D) the consummation of the transactions contemplated in
connection with any of the foregoing as set forth in the Prospectuses, will
violate Regulations G, T, U or X promulgated by the Board of Governors of the
Federal Reserve System or analogous foreign laws and regulations.
(cc) Except pursuant to this Agreement, there are no
contracts, agreements or understandings between the Company, any of its
Subsidiaries or any of its Joint Ventures and any other person that would give
rise to a valid claim against the Company or any of the Managers for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Common Stock.
(dd) The Company has filed in a timely manner each document or
report required to be filed by it pursuant to the Exchange Act and the rules and
regulations thereunder; each such document or report at the time it was filed
conformed to the requirements of the Exchange Act and the rules and regulations
thereunder; and none or such documents or reports contained an untrue statement
of any material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
(ee) Each of the Company, the Subsidiaries and the Joint
Ventures has complied with all provisions of Section 517.075, Florida Statutes,
relating to doing business with the Government of Cuba or with any affiliate
located in Cuba.
(ff) Except as disclosed in the Prospectuses, there are no
business relationships or related party transactions required to be disclosed
therein pursuant to Item 404 of Regulation S-K of the Commission.
The Company acknowledges that the Managers and, for purposes
of the opinions to be delivered to the Managers pursuant to Section 8(e), (f)
and (g) hereof, counsel to the Company and counsel to the Managers, will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each of you and each other Manager and each person, if any,
who controls any Manager within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any International Prepricing Prospectus or in the
Registration Statement or the International Prospectus or in any amendment or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission which
has been made therein or omitted therefrom in reliance upon and in conformity
with the information relating to such Manager furnished in writing to the
Company by any Manager through the Lead Managers expressly for use in connection
therewith; provided, however, that the indemnification contained in this
paragraph (a) with respect to any International Prepricing Prospectus shall not
inure to the benefit of any Manager (or to the benefit of any person controlling
such Manager) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Shares by such Manager to any person if a copy of
the International Prospectus shall not have been delivered or sent to such
person within the time required by the Act and the regulations thereunder, and
the untrue statement or alleged untrue statement or omission or alleged omission
of a material fact contained in such International Prepricing Prospectus was
corrected in the International Prospectus, provided that the Company has
delivered the International Prospectus to the several Managers in requisite
quantity on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Manager or any person controlling any Manager in respect of which indemnity may
be sought against the Company, such Manager or such controlling person shall
promptly notify the Company, and the Company shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. Such
Manager or any such controlling person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Manager or such controlling person unless (i) the Company has agreed in
writing to pay such fees and expenses, (ii) the Company has failed to assume the
defense and employ counsel, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both such Manager or
such controlling person, and the Company and such Manager or such controlling
person shall have been advised by its counsel that representation of such
indemnified party and the Company by the same counsel would be inappropriate
under applicable standards of professional conduct (whether or not such
representation by the same counsel has been proposed) due to actual or potential
differing interests between them (in which case the Company shall not have the
right to assume the defense of such action, suit or proceeding on behalf of such
Manager or such controlling person). It is understood, however, that the Company
shall, in connection with any one such action, suit or proceeding or separate
but substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such Managers
and controlling persons not having actual or potential differing interests with
you or among themselves, which firm shall be designated in writing by Xxxxx
Xxxxxx Inc., and that all such fees and expenses shall be reimbursed as they are
incurred. The Company shall not be liable for any settlement of any such action,
suit or proceeding effected without its written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the Company agrees to indemnify and hold
harmless any Manager, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Manager agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Manager, but only with respect to
information relating to such Manager furnished in writing by or on behalf of
such Manager through the Lead Managers expressly for use in the Registration
Statement, the International Prospectus or any International Prepricing
Prospectus, or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, or any such controlling person based on the Registration Statement, the
International Prospectus or any International Prepricing Prospectus, or any
amendment or supplement thereto, and in respect of which indemnity may be sought
against any Manager pursuant to this paragraph (c), such Manager shall have the
rights and duties given to the Company by paragraph (b) above (except that if
the Company shall have assumed the defense thereof such Manager shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at such
Manager's expense), and the Company, its directors, any such officer, and any
such controlling person shall have the rights and duties given to the Managers
by paragraph (b) above. The foregoing indemnity agreement shall be in addition
to any liability which the Managers may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable
to an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Managers on the other hand from the offering of the Shares,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Managers on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Managers
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
bear to the total underwriting discounts and commissions received by the
Managers, in each case as set forth in the table on the cover page of the
International Prospectus. The relative fault of the Company on the one hand and
the Managers on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Managers on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company and the Managers agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Managers were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Manager shall be required to contribute any
amount in excess of the amount by which the total price of the Shares
underwritten by it and distributed to the public exceeds the amount of any
damages which such Manager 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 Managers' obligations to contribute
pursuant to this Section 7 are several in proportion to the respective numbers
of Shares set forth opposite their names in Schedule I hereto (or such numbers
of Shares increased as set forth in Section 10 hereof) and not joint.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Manager or any person controlling any
Manager, the Company, its directors or officers, or any person controlling the
Company, (ii) acceptance of any Shares and payment therefor hereunder, and (iii)
any termination of this Agreement. A successor to any Manager or any person
controlling any Manager, or to the Company, its directors or officers, or any
person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution, and reimbursement agreements contained in this Section
7.
8. Conditions of Managers' Obligations. The several obligations of the
Managers to purchase the Shares hereunder are subject to the following
conditions:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto (including pursuant to Rule 462(b)) to be declared effective before the
offering of the Shares may commence, the Registration Statement or such
post-effective amendment shall have become effective not later than 5:30 P.M.,
New York City time, on the date hereof, or at such later date and time as shall
be consented to in writing by you, and all filings, if any, required by Rules
424 and 430A under the Act shall have been timely made; no stop order suspending
the effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge of
the Company or any Manager, threatened by the Commission, and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectuses or otherwise) shall have been complied with to
your satisfaction.
(c) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, that would have a Material Adverse Effect on the Company,
the Subsidiaries and the Joint Ventures, taken as a whole, not contemplated by
the Prospectuses, which in your opinion, as Lead Managers for the several
Managers, would materially adversely affect the market for the Shares, or (ii)
any event or development relating to or involving the Company, the Subsidiaries,
the Joint Ventures or any officer or director of the Company which makes any
statement made in the Prospectuses untrue or which, in the opinion of the
Company and its counsel or the Managers and their counsel, requires the making
of any addition to or change in the Prospectuses in order to state a material
fact required by the Act or any other law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Prospectuses to reflect such event or development would, in
your opinion, as Lead Managers for the several Managers, materially adversely
affect the market for the Shares.
(d) You shall have received a certificate, dated the Closing
Date, signed on behalf of the Company by (i) the President or a Vice Chairman
and (ii) a Vice President, Vice Chairman, Secretary or Assistant Secretary, in
form and substance reasonably satisfactory to you, confirming, as of the Closing
Date, the matters set forth in paragraphs (a), (b), and (c) of this Section 8,
certain incumbency matters and that, as of the Closing Date, the obligations of
the Company to be performed hereunder on or prior thereto have been duly
performed.
(e) You shall have received on the Closing Date, an opinion,
dated the Closing Date, in form and substance satisfactory to you, of Xxxxxxxx
Xxxxxxxxx, counsel for the Company, to the effect set forth in Exhibit B hereto.
(f) You shall have received on the Closing Date an opinion,
dated the Closing Date, in form and substance satisfactory to you, of Xxxxxxx &
Berlin, special regulatory counsel to the Company, to the effect set forth in
Exhibit C hereto.
(g) You shall have received an opinion, dated the Closing
Date, in form and substance reasonably satisfactory to you, of Xxxxxx & Xxxxxxx,
counsel to the Lead Managers for the Managers, covering such matters as are
customarily covered in such opinions.
(h) At the time this Agreement is executed and at the Closing
Date, you shall have received from Deloitte & Touche, independent public
accountants for the Company dated as of the date of this Agreement and of the
Closing Date, respectively, a customary comfort letter addressed to the you and
in form and substance satisfactory to you with respect to the financial
statements and certain financial information of the Company, the Subsidiaries
and the Joint Ventures contained in the Registration Statement and the
Prospectuses.
(i)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been taken or, to the knowledge of the Company, shall be
contemplated by the Commission at or prior to the Closing Date; (ii) there shall
not have been any change in the capital stock of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectuses; (iii) there shall not have been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as may otherwise be stated in the
Registration Statement and, any material adverse change in the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole; and (iv) the
Company and the Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business), that
are material to the Company and the Subsidiaries, taken as a whole, other than
those reflected in the Registration Statement or the Prospectuses.
(j) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(k) Xxxxxx & Xxxxxxx shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably require
for the purpose of enabling them to review or pass upon the matters referred to
in this Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations, warranties
or conditions herein contained.
(l) The Shares shall have been listed or approved for listing
upon notice of issuance on the Nasdaq National Market.
(m) The closing under the U.S. Underwriting Agreement shall
have occurred concurrently with the closing hereunder on the Closing Date.
(n) The Adelphia Share Purchase shall have occurred in
accordance with the terms and conditions set forth in the letter agreement by
which the Parent and the Company have agreed to effectuate the Adelphia Share
Purchase (the "Adelphia Share Purchase Agreement") and the Adelphia Note
Contribution shall have occurred in accordance with the terms and conditions set
forth in the letter agreement by which the Parent and the Company have agreed to
effectuate the Adelphia Note Contribution (the "Adelphia Note Contribution
Agreement").
(o) In accordance with that certain letter of understanding
dated April ___, 1998, among the Company, the Parent and MCI (the "MCI
Agreement"): (i) the MCI Warrant (as defined in the Prospectuses) and the
Additional MCI Warrants shall been issued to MCI (as defined in the
Prospectuses), (ii) the MCI Warrant and the Additional MCI Warrants shall have
been purchased from MCI by the Parent and (iii) the Company shall have issued
the Adelphia Warrant (as defined in the Prospectuses) to the Parent.
(p) Prior to the Closing Date, the Company, the Subsidiaries
and the Joint Ventures shall have furnished or caused to be furnished to you
such further certificates and documents as you shall have requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to you and your counsel.
Any certificate or document signed by any officer of the Company
and delivered to you, as Lead Managers for the Managers, or to counsel for the
Managers, shall be deemed a representation and warranty by the Company to each
Manager as to the statements made therein.
9. Expenses. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing or reproduction, and
filing with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prepricing Prospectuses, the Prospectuses,
and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges
for counting and packaging) of such copies of the Registration Statement, the
Prepricing Prospectuses, the Prospectuses, and all amendments or supplements to
any of them as may be reasonably requested for use in connection with the
offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the original issuance and sale of the Shares;
(iv) the printing (or reproduction) and delivery of this Agreement, the U.S.
Underwriting Agreement, the Supplemental Agreement Among U.S. Underwriters, the
Agreement Among Managers, the Agreement Between U.S. Underwriters and Managers,
the International Selling Agreement, the Managers' Questionnaire, the Blue Sky
Memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Shares; (v) the registration of
the Class A Common Stock under the Exchange Act and the listing of the Shares on
the Nasdaq National Market; (vi) the registration or qualification of the Shares
for offer and sale under the securities or Blue Sky laws of the several states
as provided in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the U.S. Underwriters and Managers relating to the
preparation, printing or reproduction, and delivery of the Blue Sky Memorandum
and such registration and qualification); (vii) the filing fees and the fees and
expenses of counsel for the U.S. Underwriters and Managers in connection with
any filings required to be made with the National Association of Securities
Dealers, Inc.; (viii) the transportation and other expenses incurred by or on
behalf of Company Lead Managers in connection with presentations to prospective
purchasers of the Shares; (ix) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company.
10. Effective Date of Agreement. This Agreement
shall become effective: (i) upon the
execution and delivery hereof by the parties hereto; or (ii) if, at the time
this Agreement is executed and delivered, it is necessary for the Registration
Statement or a post-effective amendment thereto to be declared effective before
the offering of the Shares may commence, when notification of the effectiveness
of the Registration Statement or such post-effective amendment has been released
by the Commission. Until such time as this Agreement shall have become
effective, it may be terminated by the Company, by notifying you, or by you, as
Lead Managers for the several Managers, by notifying the Company.
If any one or more of the Managers shall fail or refuse to purchase
Shares which it or they are obligated to purchase hereunder on the Closing Date,
and the aggregate number of Shares which such defaulting Manager or Managers are
obligated but fail or refuse to purchase is not more than one-tenth of the
aggregate number of Shares which the Managers are obligated to purchase on the
Closing Date, each non-defaulting Manager shall be obligated, severally, in the
proportion which the number of Shares set forth opposite its name in Schedule I
hereto bears to the aggregate number of Shares set forth opposite the names of
all non-defaulting Managers or in such other proportion as you may specify in
accordance with Section 20 of the Master Agreement Among Underwriters of Xxxxx
Xxxxxx Inc., to purchase the Shares which such defaulting Manager or Managers
are obligated, but fail or refuse, to purchase. If any one or more of the
Managers shall fail or refuse to purchase Shares which it or they are obligated
to purchase on the Closing Date and the aggregate number of Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Shares which the Managers are obligated to purchase on the Closing Date and
arrangements satisfactory to you and the Company for the purchase of such Shares
by one or more non-defaulting Managers or other party or parties approved by you
and the Company are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Manager or
the Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Manager from liability in respect of
any such default of any such Manager under this Agreement. The term "Manager" as
used in this Agreement includes, for all purposes of this Agreement, any party
not listed in Schedule I hereto who, with your approval and the approval of the
Company, purchases Shares which a defaulting Manager is obligated, but fails or
refuses, to purchase.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be subject to
termination in your absolute discretion, without liability on the part of any
Manager to the Company, by notice to the Company, if prior to the Closing Date,
(i) trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York or Philadelphia shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other U.S. or domestic calamity, crisis or change in political,
financial or economic conditions, the effect of which on the financial markets
of the United States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Shares at the offering
price to the public set forth on the cover page of the International Prospectus
or to enforce contracts for the resale of the Shares by the Managers. Notice of
such termination may be given to the Company by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
12. Information Furnished by the Managers. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside cover page, and the statements in the first, third, seventh, eighth,
ninth and fifteenth paragraphs under the caption "Underwriting" in any
International Prepricing Prospectus and in the International Prospectus,
constitute the only information furnished by or on behalf of the Managers
through you as such information is referred to in Sections 6(b) and 7 hereof.
13. Miscellaneous. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall be
in writing and shall be delivered (i) if to the Company, at the office of the
Company at Hyperion Telecommunications, Inc., Main at Xxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, Xx., Vice President, Finance;
or (ii) if to you, as Lead Managers for the several Managers, care of Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Investment Banking Division.
This Agreement has been and is made solely for the benefit of the
several Managers, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Manager of any of the Shares in his status as
such purchaser.
14. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the several Managers.
Very truly yours,
HYPERION TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name:
Title: Vice President
Confirmed as of the date first above mentioned on behalf of themselves and the
other several Managers named in Schedule I
hereto.
XXXXX XXXXXX INC.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
NATIONSBANC XXXXXXXXXX SECURITIES LLC
As Lead Managers for the Several Managers
By: XXXXX XXXXXX INC.
By: /s/ M.E. Xxxxxxxx
Name:
Title: Managing Director
SCHEDULE I
HYPERION TELECOMMUNICATIONS INC.
Manager Number of Shares
Xxxxx Xxxxxx Inc.
Credit Suisse First Boston (Europe) Limited
NationsBanc Xxxxxxxxxx Securities LLC ________________
TOTAL
SCHEDULE II
Xxxxxx X. Xxxxxxxx
Xxxxxxx X Xxxxxxxx
Xxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxx
SCHEDULE III
SUBSIDIARIES
SCHEDULE IV
JOINT VENTURES
EXHIBIT A
LIST OF EMPLOYEE PENSION AND BENEFIT
PLANS OF HYPERION TELECOMMUNICATIONS, INC.
AND ITS SUBSIDIARIES
EXHIBIT B
FORM OF OPINION OF XXXXXXXX INGERSOLL
1. Each of the Company and the Subsidiaries is duly organized
and validly existing as a corporation or a limited liability company in good
standing under the laws of its jurisdiction of formation, as applicable, and has
all requisite corporate power and authority to carry on its business as it is
being conducted and as described in the Registration Statement and the
Prospectuses and to own, lease and operate its properties, and is duly qualified
and in good standing as a foreign corporation 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, singly or
in the aggregate, have a material adverse effect on the business, financial
condition or results of operations of the Company and the Subsidiaries, taken as
a whole (a "Material Adverse Effect").
2. Each of the Joint Ventures has been duly incorporated or
formed as a corporation, general partnership, limited partnership or limited
liability company under the laws of its jurisdiction of incorporation or
formation, as applicable, and has all requisite power and authority to own,
lease, and operate its properties and to conduct its business as described in
the Prospectuses, and is duly qualified to transact business as a foreign
corporation, general partnership, limited partnership or limited liability
company, as applicable, in each jurisdiction in which the character of the
business being conducted by it or the location of the property owned by it makes
such qualification necessary, except where the failure to so qualify, singly or
in the aggregate, would not have a Material Adverse Effect. Each Joint Venture
that is a corporation, limited partnership or limited liability company is
validly existing and is in good standing under the laws of its jurisdiction of
incorporation or formation, as applicable.
3. All of the outstanding shares of capital stock of the
Company have been duly authorized, validly issued, and are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights. All of the outstanding shares of capital stock of the Company is as set
forth in the Prospectuses under the caption "Capitalization." The authorized
capital stock of the Company conforms in all material respects as to legal
matters to the description thereof contained in the Prospectuses under the
caption "Description of Capital Stock."
4. All the shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be issued and sold by the Company
pursuant to the Underwriting Agreements have been duly authorized and validly
issued, and are fully paid and nonassessable.
5. The Underwritten Shares to be issued and sold to the U.S.
Underwriters and Managers by the Company under the U.S. Underwriting Agreement
and the International Underwriting Agreement have been duly authorized and when
issued and delivered to the U.S. Underwriters and Managers against payment
therefor in accordance with the terms of the U.S. Underwriting Agreement and the
International Underwriting Agreement, will be validly issued, fully paid and
nonassessable and free of any (A) preemptive rights or (B) to the best knowledge
of such counsel after reasonable inquiry, similar rights that entitle or will
entitle any person to acquire any shares of Class A Common Stock upon the
issuance thereof by the Company.
6. The Adelphia New Shares (as defined in the Prospectuses)
have been duly authorized and when issued and delivered to the Parent against
payment therefor in accordance with the terms of the Adelphia Share Purchase
Agreement or the Adelphia Note Contribution Agreement, as the case may be, will
be validly issued, fully paid and nonassessable and free of (A) preemptive
rights or (B) to the best knowledge of such counsel after reasonable inquiry,
similar rights that entitle or will entitle any person to acquire any shares of
Class A Common Stock upon the issuance thereof by the Company.
7. The Additional MCI Warrants (as defined in the
Prospectuses) have been duly authorized and, when executed and delivered
pursuant to the terms of the Warrant Agreement (the "MCI Warrant Agreement"),
dated June 13, 1997, between the Company and MCImetro Access Transmission
Services, Inc. ("MCI"), will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforceability of creditors'
rights generally and by general principles of equity (whether arising under a
proceeding at law or in equity).
8. The maximum number of Shares issuable upon exercise of the
Additional MCI Warrants has been duly authorized and reserved for issuance by
the Company at the time and in the manner required by the MCI Warrant Agreement
and, upon (i) due exercise of the Additional MCI Warrants and (ii) delivery of
Shares upon such exercise, in each case, in accordance with the terms of the
Additional MCI Warrants and the MCI Warrant Agreement, such Shares will be
validly issued, fully paid and nonassessable.
9. Upon due issuance of the Additional MCI Warrants, the
Company will have satisfied its obligation to issue "Additional Initial
Warrants" (as such term is defined in the MCI Warrant Agreement) under Section
2.2 of the MCI Warrant Agreement.
10. The Adelphia Warrant (as defined in the Prospectuses) has
been duly authorized and, when executed and delivered pursuant to the terms of
the MCI Agreement, will be valid and binding obligations of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other similar laws affecting the enforceability of creditors'
rights generally and by general principles of equity (whether arising under a
proceeding at law or in equity).
11. The maximum number of Shares issuable upon exercise of the
Adelphia Warrant has been duly authorized and reserved for issuance by the
Company and, upon (i) due exercise of the Adelphia Warrant and (ii) delivery of
Shares upon such exercise, in each case, in accordance with the terms of the
Adelphia Warrant, such Shares will be validly issued, fully paid and
nonassessable.
12. The form of certificates for the Underwritten Shares and
the Adelphia New Shares conforms to the requirements of the Nasdaq National
Market and the Delaware General Corporation Law.
13. The Registration Statement and all post-effective
amendments, if any, have become effective under the Act and, to the best
knowledge of such counsel after reasonable inquiry, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose are pending before or contemplated by the Commission; and any
required filing of the Prospectuses pursuant to Rule 424(b) has been made in
accordance with Rule 424(b).
14. The Company has the corporate power and authority to enter
into the U.S. Underwriting Agreement and the International Underwriting
Agreement and to issue, sell and deliver the Shares to be sold by it to the U.S.
Underwriters and Managers as provided therein, and each of the U.S. Underwriting
Agreement and the International Underwriting Agreement have been duly
authorized, executed and delivered by the Company and is a legal, valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that (A) enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws not or hereafter in
effect relating to creditors' rights generally, (B) the remedy of specific
performance and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which the
proceedings may be brought and (C) rights to indemnity and contribution
thereunder may be limited by Federal or state securities laws or the public
policy underlying such laws.
15. All of the Joint Venture's limited partnership and limited
liability company interests owned by each Subsidiary have been duly authorized
and validly issued and, except for matters referenced by the Prospectuses, all
of the partnership and limited liability company interests owned in the Joint
Ventures which are owned of record by each respective Subsidiary are, to the
best of our knowledge, owned free and clear of any security interest, lien or
other encumbrance.
16. All of the outstanding capital stock of each Subsidiary is
owned by the Company, free and clear of any security interest, claim, lien,
limitation on voting rights or encumbrance. There are not, to our knowledge,
other than as set forth in the Prospectuses, currently, and will not be
following the issuance and sale of the Shares, any outstanding subscriptions,
rights, warrants, calls, commitments of sale or options to acquire, or
instruments convertible into or exchangeable for, any capital stock or other
equity interest of the Company or any Subsidiary.
17. The Registration Statement and the Prospectuses and any
supplements or amendments thereto (except for the financial statements,
schedules, and notes thereto and other financial and statistical data included
therein, as to which such counsel need not express any opinion) comply as to
form in all material respects with the requirements of the Act.
18. Neither the issuance, sale or delivery of the Underwritten
Shares, nor the execution, delivery or performance of the U.S. Underwriting
Agreement or the International Underwriting Agreement, or compliance by the
Company with all provisions of the U.S. Agreement and the International
Underwriting Agreement, nor consummation by the Company of the transactions
contemplated in the U.S. Underwriting Agreement or by the International
Underwriting Agreement violates, conflicts with or constitutes a breach of any
of the terms or provisions of, or a default under (or an event that with notice
or the lapse of time, or both, would constitute a default), or require consent
under, or result in the imposition of a lien or encumbrance on any properties of
the Company or any Subsidiary, or an acceleration of any indebtedness of the
Company or any Subsidiary pursuant to, (i) the charter or bylaws of the Company
or any Subsidiary, (ii) any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any Subsidiary is
a party or by which it or its property is or may be bound identified to such
counsel as material (assuming all of such agreements are governed by
Pennsylvania law), (iii) any local, state or Federal law, statute, ordinance,
requirement, administrative statute, rule or regulation applicable to the
Company or any Subsidiary or its assets or properties (except with respect to
the matters set forth in the opinion of Xxxxxxx & Berlin, as to which no opinion
need be expressed) or (iv) any judgment, order or decree of any court or
governmental agency or authority having jurisdiction over the Company or any
Subsidiary or its assets or properties known to such counsel, except in the case
of clauses (ii), (iii) and (iv) for such violations, conflicts, breaches,
defaults, consents, impositions of liens or accelerations that (x) would not,
singly or in the aggregate, have a Material Adverse Effect or (y) are disclosed
in the Prospectuses. Assuming compliance with applicable state securities and
Blue Sky laws, as to which such counsel need express no opinion, and except for
the filing of a registration statement under the Act, no consent, approval,
authorization or order of, or filing, registration, qualification, license or
permit of or with, any court or governmental agency, body or administrative
agency is required for (1) the execution, delivery and performance by the
Company of the International Underwriting Agreement and the International
Underwriting Agreement, (2) the issuance and sale of the Shares or (3)
consummation by the Company, the Subsidiaries and the Joint Ventures of the
transactions described in the Prospectuses, except such as have been obtained
and made or have been disclosed in the Prospectuses, and except where the
failure to obtain such consents or waivers would not, singly or in the
aggregate, have a Material Adverse Effect. To the best of such counsel's
knowledge, no consents or waivers from any other person are required for the
execution, delivery and performance by the Company of the International
Underwriting Agreement and the International Underwriting Agreement or the
issuance and sale of the Underwritten Shares, other than such consents and
waivers as have been obtained.
19. None of the Company, its Subsidiaries or the Joint
Ventures is (i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or (ii) a "holding company" or a "subsidiary company" or an
"affiliate" of a holding company within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
20. Except as set forth in the Prospectuses, there are no
holders of securities of the Company who, by reason of the execution by the
Company of the International Underwriting Agreement or the International
Underwriting Agreement or the consummation by the Company of the transactions
contemplated thereby, have the right to request or demand that the Company
register under the Act securities held by them.
21. None of (A) the execution, delivery and performance of the
International Underwriting Agreement or the U.S. Underwriting Agreement, (B) the
issuance and sale of the Shares and the application of the proceeds from the
issuance and sale of the Shares or (C) the consummation of the transactions
contemplated in connection with any of the foregoing as set forth in the
Prospectuses, will violate Regulations G, T, U or X promulgated by the Board of
Governors of the Federal Reserve System.
22. To the knowledge of such counsel, there is (i) no action,
suit, investigation or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending, or
threatened or contemplated to which any of the Company or any Subsidiary is or
may be a party or to which the business or property of any of the Company or any
Subsidiary is or may be subject, (ii) no statute, rule, regulation or order that
has been enacted, adopted or issued by any governmental agency, or (iii) no
injunction, restraining order or order of any nature by a federal or state court
of competent jurisdiction to which any of the Company or any Subsidiary is or
may be subject has been issued that, in the case of clauses (i), (ii) and (iii)
above, (x) is required to be disclosed in the Prospectuses and that is not so
disclosed and, (y) could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect, it being understood that for
purposes of this opinion, such counsel need express no opinion with respect to
(i) actions, suits investigation or proceedings before the FCC or any similar
state regulatory commission or body, (ii) statutes, rules, regulations or orders
by any FCC or any similar state regulatory commission or (iii) injunctions,
restraining orders or other orders by the FCC or any similar state regulatory
commission or body.
Although we have not undertaken, except as otherwise indicated
in our opinion, to determine independently, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements in the
Registration Statement, we have participated in the preparation of the
Registration Statement and the Prospectuses, including general review and
discussion of the contents thereof but have made no independent check or
verification thereof, and no facts have come to our attention that would lead us
to believe that the Registration Statement at the time the Registration
Statement became effective, or the Prospectuses, as of their respective dates
and as of the Closing Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated in the Prospectuses or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that any amendment or supplement
to the Prospectuses, as of their respective dates, and as of the Closing Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated in the Prospectuses or necessary in order to make the
statements in the Prospectuses, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements, schedules, pro
forma financial statements and the notes thereto and other financial data
included in the Registration Statement and the Prospectuses.
EXHIBIT C
FORM OF OPINION OF REGULATORY COUNSEL
1. Each of the Company, the Subsidiaries and the Joint Ventures has all
of the licenses, permits and authorizations, if any, required by the FCC and the
State Regulatory Agencies for the provision of telecommunications services
except where the failure to obtain or hold such license, permit or authority
would not have a Material Adverse Effect on the Company, the Subsidiaries and
the Joint Ventures, taken as a whole.
2. Neither the Company, any Subsidiaries nor any Joint Ventures is
subject to any pending complaint or investigation before the FCC or, to the best
knowledge of counsel, to any threatened complaint or investigation before the
FCC, or, any pending or threatened complaint or investigation before any State
Regulatory Agencies based on any alleged violation by the Company, the
Subsidiaries or the Joint Ventures in connection with their provision of or
failure to provide telecommunications services.
3. The statements in the Prospectuses under the heading of "Risk
Factors - Regulation" and "Regulation" fairly and accurately summarize the
matters therein described.
4. The Company, the Subsidiaries and the Joint Ventures have the
consents, approvals, authorizations, licenses, certificates, permits, or orders
of the FCC or any State Regulatory Agency if any, for the consummation of the
transactions contemplated in the Underwriting Agreements except where the
failure to obtain the consents, approvals, authorizations, licenses,
certificates, permits or orders would not have a Material Adverse Effect on the
Company, the Subsidiaries and the Joint Ventures, taken as a whole.
5. Neither the execution and delivery of the Underwriting Agreements
nor the issuance of the Shares will conflict with or result in a violation of
any order or regulation of the FCC or any State Regulatory Agency applicable to
the Company, its Subsidiaries or the Joint Ventures except where the conflict
with or the violation of which would not have a material adverse impact on the
Company, the Subsidiaries and the Joint Ventures, taken as a whole.
