1
XXXXXX FIBER PROPERTIES, INC.
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
-------------------------------------------
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
January , 1997
2
XXXXXX FIBER PROPERTIES, INC.
Common Stock
(par value $0.01 per share)
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
January __, 1997
Xxxxxxx Xxxxx International,
Salomon Brothers International Limited,
Xxxxxx Brothers International (Europe),
Xxxxxx Xxxxxxxx & Co., Limited,
As representatives
of the several Underwriters named in Schedule I hereto,
c/o Goldman Xxxxx International,
Peterborough Court,
000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX, Xxxxxxx.
Ladies and Gentlemen:
Certain stockholders named in Schedule II hereto (the "Selling
Stockholders") of Xxxxxx Fiber Properties, Inc., a Delaware corporation (the
"Company"), propose, subject to the terms and conditions stated herein, to sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of _________ shares of Voting Common Stock (par value $0.01 per
share) ("Stock") of the Company, and the Company proposes, subject to the terms
and conditions stated herein, to sell to the Underwriters, at the election of
the Underwriters, up to _________ additional shares of Stock. The aggregate of
_________ shares to be sold by the Selling Stockholders is herein called the
"Firm Shares" and the aggregate of _______ additional shares to be sold by the
Company is herein called the "Optional Shares". The Firm Shares and the
Optional Shares which the Underwriters elect to purchase pursuant to Section 2
hereof are herein collectively called the "Shares". All references to "Firm
Shares," "Optional Shares" and "Shares" shall include the associated Preferred
Stock Purchase Rights ("Rights").
It is understood and agreed to by all parties that the Company and the
Selling Stockholders are concurrently entering into an agreement, a copy of
which is attached hereto (the "U.S. Underwriting Agreement"), providing for the
sale by the Company and the Selling Stockholders of up to a total of _________
shares of Stock (the "U.S. Shares"), including the overallotment option
thereunder, through arrangements with certain underwriters in the United States
(the "U.S. Underwriters"), for whom Xxxxxxx, Xxxxx & Co. and Salomon Brothers
Inc are acting as representatives (the "U.S. Representatives"). Anything
herein or therein to the contrary notwithstanding, the respective closings
under this Agreement and the U.S. Underwriting Agreement are hereby expressly
made conditional on one another. The
3
Underwriters hereunder and the U.S. Underwriters are simultaneously entering
into an Agreement between U.S. and International Underwriting Syndicates (the
"Agreement between Syndicates") which provides, among other things, for the
transfer of shares of Stock between the two syndicates and for consultation by
the Lead Managers hereunder with Xxxxxxx, Xxxxx & Co. prior to exercising the
rights of the Underwriters under Section 7 hereof. Two forms of prospectus are
to be used in connection with the offering and sale of shares of Stock
contemplated by the foregoing, one relating to the Shares hereunder and the
other relating to the U.S. Shares. The latter form of prospectus will be
identical to the former except for the front cover page, inside front cover
page, back cover page, and the text under the caption "Underwriting," the
addition of a section captioned "Additional Information" and the deletion of a
section captioned "Certain United States Federal Tax Consequences to Non-U.S.
Stockholders". Except as used in Sections 2, 3, 4, 9 and 11 herein, and except
as the context may otherwise require, references hereinafter to the Shares
shall include all of the shares of Stock which may be sold pursuant to either
this Agreement or the U.S. Underwriting Agreement, and references herein to any
prospectus whether in preliminary or final form, and whether as amended or
supplemented, shall include both the U.S. and the international versions
thereof.
In addition, this Agreement incorporates by reference certain
provisions from the U.S. Underwriting Agreement (including the related
definitions of terms, which are also used elsewhere herein) and, for purposes
of applying the same, references (whether in these precise words or their
equivalent) in the incorporated provisions to the "Underwriters" shall be to
the Underwriters hereunder, to the "Shares" shall be to the Shares hereunder as
just defined, to "this Agreement" (meaning therein the U.S. Underwriting
Agreement) shall be to this Agreement (except where this Agreement is already
referred to or as the context may otherwise require) and to the representatives
of the Underwriters or to Xxxxxxx, Sachs & Co. shall be to the addressees of
this Agreement and to Xxxxxxx Xxxxx International ("GSI"), and, in general, all
such provisions and defined terms shall be applied mutatis mutandis as if the
incorporated provisions were set forth in full herein having regard to their
context in this Agreement as opposed to the U.S. Underwriting Agreement.
1. The Company and each of the several Selling Stockholders,
severally and not jointly, hereby make to the Underwriters the same respective
representations, warranties and agreements as are set forth in Section 1(a) and
Section 1(b), respectively, of the U.S. Underwriting Agreement, which Sections
are incorporated herein by this reference. Section 1(c) of the U.S.
Underwriting Agreement is also incorporated herein by this reference.
2. Subject to the terms and conditions herein set forth, (a) each
of the Selling Stockholders agrees, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Stockholders, at a purchase price
per share of $_____, the number of Firm Shares (to be adjusted by you so as to
eliminate fractional shares) determined by multiplying the aggregate number of
Firm Shares to be sold by each of the Selling Stockholders as set forth
opposite their respective names in Schedule II hereto by a fraction, the
numerator of which is the aggregate number of Firm Shares to be purchased by
such Underwriter as set forth opposite the name of such Underwriter in Schedule
I hereto and the denominator of which is the aggregate number of Firm Shares to
be purchased by all the Underwriters from all the Selling
-3-
4
Stockholders hereunder and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, the Company agrees to sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at the purchase price per share set forth in clause (a) of this
Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional Shares by
a fraction the numerator of which is the maximum number of Optional Shares
which such Underwriter is entitled to purchase as set forth opposite the name
of such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Shares that all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _______ Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you
but in no event earlier than the First Time of Delivery (as defined in Section
4 hereof) or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
3. Upon the authorization by GSI of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus and in the forms of
Agreement among Underwriters (International Version) and Selling Agreements,
which have been previously submitted to the Company by you. Each Underwriter
hereby makes to and with the Company and the Selling Stockholders the
representations and agreements of such Underwriter as a member of the selling
group contained in Sections 3(d) and 3(e) of the form of Selling Agreements.
4. (a) The Shares to be purchased by each Underwriter hereunder,
in definitive form, and in such authorized denominations and registered in such
names as GSI may request upon at least forty-eight hours' prior written notice
to the Company and the Selling Stockholders, shall be delivered by or on behalf
of the Company and the Selling Stockholders to GSI, through the facilities of
The Depository Trust Company ("DTC"), for the account of such Underwriter,
against payment by or on behalf of such Underwriter of the purchase price
therefor in same day funds, payable to the order of the Company and the
Custodian on behalf of each of the Selling Stockholders, as their respective
interests may appear, in same day funds. The Company and the Selling
Stockholders will cause the certificates representing the Shares to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) with respect thereto at the office of DTC
or its designated custodian (the "Designated Office"). The time and date of
such delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m.,
New York City time, on January __, 1997 or such other time and date as GSI, the
Company and the Selling Stockholders may agree upon in writing, and, with
respect to the Optional Shares, 9:30 a.m., New York time, on the date specified
by GSI in the written notice given by GSI of the Underwriters' election
-4-
5
to purchase such Optional Shares pursuant to Section 2 hereof, or such other
time and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 of the U.S.
Underwriting Agreement, including the cross-receipt for the Shares and any
additional documents requested by the Underwriters pursuant to Section 7(m) of
the U.S. Underwriting Agreement, will be delivered at the offices of Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 (the "Closing Location"), and
the Shares will be delivered at the Designated Office, all at such Time of
Delivery. A meeting will be held at the Closing Location at 2:30 p.m., New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York are generally authorized or obligated by
law or executive order to close.
5. The Company hereby makes with the Underwriters the same
agreements as are set forth in Section 5 of the U.S. Underwriting Agreement,
which Section is incorporated herein by this reference.
6. The Company, each of the Selling Stockholders, and the
Underwriters hereby agree with respect to certain expenses on the same terms as
are set forth in Section 6 of the U.S. Underwriting Agreement, which Section is
incorporated herein by this reference.
7. Subject to the provisions of the Agreement between Syndicates,
the obligations of the Underwriters hereunder shall be subject, in their
discretion, at each Time of Delivery to the condition that all representations
and warranties and other statements of the Company and the Selling Stockholders
herein are, at and as of such Time of Delivery, true and correct, the condition
that the Company and the Selling Stockholders shall have performed all of their
respective obligations hereunder theretofore to be performed, and additional
conditions identical to those set forth in Section 7 of the U.S. Underwriting
Agreement, which Section is incorporated herein by this reference. The opinion
of Xxxxx Xxxx to be delivered to the Underwriters shall also include an opinion
to the effect that the statements set forth in the Prospectus under the caption
"Certain United States Federal Tax Consequences to Non-U.S. Stockholders",
insofar as they purport to constitute a summary of the provisions of laws and
regulations referred to therein, are accurate summaries of such provisions in
all material respects.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged
-5-
6
untrue statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or the Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through GSI expressly for use
therein.
(b) Each of the Selling Stockholders will, severally and not jointly,
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Selling Stockholder expressly for
use therein; and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the liability of a Selling Stockholder
pursuant to this subsection 8(b) shall not exceed the product of the number of
Shares sold by such Selling Stockholder and the initial public offering price
(less underwriting discount) of the Shares as set forth in the Prospectus.
(c) Each Underwriter will indemnify and hold harmless the Company and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Underwriter through GSI
expressly for use therein; and will reimburse the Company and each Selling
Stockholder for any legal or other expenses
-6-
7
reasonably incurred by the Company or such Selling Stockholder in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a) (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party
which consent shall not be unreasonably withheld, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party. In no event shall any
indemnifying party be liable for the fees and expenses of more than one firm or
counsel (except to the extent that local counsel, in addition to such firm or
counsel, is required for effective representation) to represent all indemnified
parties with respect to a single action or separate but substantially similar
actions in the same jurisdiction arising out of the same general allegations,
which firm or counsel shall be designated in writing by GSI, on behalf of any
Underwriters and controlling persons, and by the Company, on behalf of itself
and any of its officers, directors or controlling persons and on behalf of any
Selling Stockholders.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and the
-7-
8
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and/or the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares purchased under this Agreement (before
deducting expenses) received by the Company in connection with the Shares sold
by the Company and received by each Selling Stockholder in connection with the
Shares sold by such Selling Stockholder, as the case may be, bear to the total
underwriting discounts and commissions received by the Underwriters with
respect to the Shares purchased under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Selling Stockholders on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to
above in this subsection (e) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint. Notwithstanding the provisions of this subsection
(e), no Selling Stockholder shall be required to contribute any amount in
excess of the amount by which the product of the number of Shares sold by such
Selling Stockholder and the initial public offering price (less underwriting
discount) of the Shares as set forth in the Prospectus exceeds the amount of
any damages which such Selling Stockholder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. The Selling Stockholders' obligations in this subsection (e) are
several, not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company or any Selling Stockholder within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time of
Delivery, you may in your discretion arrange for you or another party or other
parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not
-8-
9
arrange for the purchase of such Shares, then the Company and the Selling
Stockholders shall be entitled to a further period of thirty-six hours within
which to procure another party or other parties satisfactory to you to purchase
such Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company and the Selling Stockholders that you have so
arranged for the purchase of such Shares, or the Company and the Selling
Stockholders notify you that they have so arranged for the purchase of such
Shares, you or the Company and the Selling Stockholders shall have the right to
postpone such Time of Delivery for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person
had originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of all the Shares to be purchased at such
Time of Delivery, then the Company and the Selling Stockholders shall have the
right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh
of the aggregate number of all the Shares to be purchased at such Time of
Delivery, or if the Company and the Selling Stockholders shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Time of Delivery, the obligations of
the Underwriters to purchase and of the Company to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company or the Selling Stockholders, except for the expenses
to be borne by the Company and any Selling Stockholder and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and
the several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain in full
force and effect, regardless of any investigation (or any statement as to the
results thereof) made by or on behalf of any Underwriter or any controlling
person of any Underwriter, or the Company or any of the Selling Stockholders,
or
-9-
10
any officer or director or controlling person of the Company or any controlling
person of any Selling Stockholders, and shall survive delivery of and payment
for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9
hereof, neither the Company nor any Selling Stockholder shall then be under any
liability to any Underwriter except as provided in Section 6 and Section 8
hereof; but, if for any other reason, any Shares are not delivered by or on
behalf of the Company and the Selling Stockholders as provided herein, the
Company and each of the Selling Stockholders pro rata (based on the number of
Shares to be sold by the Company and such Selling Stockholder hereunder), will
reimburse the Underwriters through GSI for all out-of-pocket expenses approved
in writing by GSI, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and each of the
Selling Stockholders shall then be under no further liability to any
Underwriter in respect of the Shares not so delivered except as provided in
Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made
or given by you jointly or by GSI on behalf of you as the representatives of
the Underwriters; and in all dealings with any Selling Stockholder hereunder,
you and the Company shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of such Selling Stockholder made or
given by any or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the Underwriters in care of GSI, Peterborough
Court, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxxx, Attention: Equity Capital
Markets, Telex No. 94012165, facsimile transmission No. (071) 774-1550; if to
any Selling Stockholder shall be delivered or sent by mail, telex or facsimile
transmission to the Attorneys-in-Fact for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of
the Company set forth in the Registration Statement, Attention: Chief Executive
Officer; provided, however, that any notice to an Underwriter pursuant to
Section 8(d) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address has been
supplied to the Company or the Selling Stockholders. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company and each Selling Stockholder and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company, any Selling Stockholder
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
-10-
11
14. Time shall be of the essence of this Agreement.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA.
16. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters, the
Company and each of the Selling Stockholders. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters
(International Version), the form of which shall be furnished to the Company
and the Selling Stockholders for examination upon request, but without warranty
on your part as to the authority of the signers thereof.
-11-
12
Any person executing and delivering this Agreement as Attorney-in-Fact
for a Selling Stockholder represents by so doing that he has been duly
appointed as Attorney-in-Fact by such Selling Stockholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-Fact
to take such action.
Very truly yours,
Xxxxxx Fiber Properties, Inc.
By: ...................................
Name:
Title:
EACH OF THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II TO THIS AGREEMENT
By: ...................................
Name:
Title:
As Attorney-in-Fact acting on behalf of
each of the Selling Stockholders named
in Schedule II to this Agreement.
Accepted as of the date hereof at New York,
New York:
Xxxxxxx Sachs International
Salomon Brothers International Limited
Xxxxxx Brothers International (Europe)
Xxxxxx Xxxxxxxx & Co., Limited
BY: XXXXXXX XXXXX INTERNATIONAL
By: ................................
(Attorney-in-fact)
On behalf of each of the Underwriters
-12-
13
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
Xxxxxxx Sachs International . . . . . . .
Salomon Brothers International Limited .
Xxxxxx Brothers International (Europe) .
Xxxxxx Xxxxxxxx & Co., Limited . . . . .
Total . . . . . . . . . . . . . . . . . . 1,344,996 201,749
-13-
14
SCHEDULE II
Number of
Optional Shares
Total Number of to be Sold if
Firm Shares Maximum Option
to be Sold Exercised
------------- ------------------
The Company . . . . . . . . . . . . . . . . . . . . . . . N/A 201,749
The Selling Stockholders(a): . . . . . . . . . . . . . . . 1,344,996 N/A
The Centennial Funds . . . . . . . . . . . . . . . . . N/A
Media Communications Partners II Limited . . . . . . . N/A
Providence Media Partners, L.P. . . . . . . . . . . . . N/A
Xxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . N/A
Xxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . N/A
D. Xxxxx Xxxxx . . . . . . . . . . . . . . . . . . . . N/A
The AB III, LLC . . . . . . . . . . . . . . . . . . . . N/A
ABS Employees Venture Fund Limited Partnership . . . . N/A
Xxxx Xxxxx & Sons Incorporated . . . . . . . . . . . . N/A
Amberbrook LLC . . . . . . . . . . . . . . . . . . . . N/A
Xxxxx Xxxxxxxx . . . . . . . . . . . . . . . . . . . . N/A
Xxxxxxxx Xxxxxxx . . . . . . . . . . . . . . . . . . . N/A
Xxxxx X. Xxxxx . . . . . . . . . . . . . . . . . . . . N/A
Xxxxx and Xxxxxxx Xxxx Revocable Trust
Dated 1/11/89 (Xxxxx and Xxxxxxx Xxxx Trustees) . . . N/A
Boston Capital Ventures III Limited Partnership . . . . N/A
Xxxxx X. Xxxxxxxx . . . . . . . . . . . . . . . . . . . N/A
Xxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . N/A
Xxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . . N/A
Xxxxxxx X. Xxxxxx Gift Trust -- 1996 . . . . . . . . . N/A
Xxxxxxx E.T. Xxxxxx (XXX) . . . . . . . . . . . . . . . N/A
Xxxxxxx E.T. Xxxxxx Xx. Irrevocable Trust -- 1983 . . . N/A
Xxxxx X. Xxxxxx Irrevocable Trust -- 1983 . . . . . . . N/A
The Xxxxxx Family Trust . . . . . . . . . . . . . . . . N/A
Xxxxxx GST Trust . . . . . . . . . . . . . . . . . . . N/A
Chestnut Street Partners, Inc. . . . . . . . . . . . . N/A
Xxxxxxxx Partners II, L.P. . . . . . . . . . . . . . . N/A
Xxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . N/A
EOS Partners, SBIC, L.P. . . . . . . . . . . . . . . . N/A
Equity-Linked Investors, L.P. . . . . . . . . . . . . . N/A
Equity-Linked Investors - II . . . . . . . . . . . . . N/A
FG - BRKS . . . . . . . . . . . . . . . . . . . . . . . N/A
Fiber Fund . . . . . . . . . . . . . . . . . . . . . . N/A
Fleet Equity Partners V, L.P. . . . . . . . . . . . . . N/A
Fleet Growth Resources, Inc. . . . . . . . . . . . . . N/A
Fleet Venture Resources, Inc. . . . . . . . . . . . . . N/A
Gilde Investment Fund B.V. . . . . . . . . . . . . . . N/A
Xxxxxx X. Xxxxxxx . . . . . . . . . . . . . . . . . . . N/A
The Xxxxxxx Sachs Group, L.P. . . . . . . . . . . . . . N/A
GPA VIE . . . . . . . . . . . . . . . . . . . . . . . . N/A
HCC Investments, Inc. . . . . . . . . . . . . . . . . . N/A
U/A/T Dated August 28, 1968 for Xxxxxx
Xxxxxxxx Xxxxxxx (X.X. Xxxxxxxxxxxx and Xxxxxx X.
Xxxxxx, Trustees) . . . . . . . . . . . . . . . . . . N/A
Xxxxx X. Xxxxxxx Trust U/A Dated November 18, 1985
(Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx and X.X.
Xxxxxxxxxxxx, Trustees . . . . . . . . . . . . . . . N/A
U/A/T Dated August 28, 1968 for Xxxxx Xxx Xxxxxxx, Xx.
(X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees) . .
U/A/T Dated August 28, 1969 for Juliet Xxx Xxxxxxx N/A
(X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees) . . N/A
U/A/T Dated August 28, 1968 for Xxxxxxx Xxxxxx Xxxxxxx
(X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees) . . N/A
Xxxx & Co., nominee for SMALL CAP World Fund, Inc. . . N/A
Xxxxx Xxxxxxxxx Clinic Foundation . . . . . . . . . . . N/A
Xxxxxx Family Foundation . . . . . . . . . . . . . . . N/A
Xxxxxxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . N/A
Xxxxxx X. XxXxxxxx . . . . . . . . . . . . . . . . . . N/A
Media/Communications Investors Limited Partnership . . N/A
Xxx X. Xxxxxx . . . . . . . . . . . . . . . . . . . . . N/A
Xxxxxx Xxxxxxx Fund II, L.P. . . . . . . . . . . . . . N/A
Xxxxx Xxxxxxxx XXX . . . . . . . . . . . . . . . . . . N/A
Osiris Investments Ltd. Partnership . . . . . . . . . . N/A
Quince Associates, L.P. . . . . . . . . . . . . . . . . N/A
Rainbow Trading Partners, Ltd. . . . . . . . . . . . . N/A
Rainbow Trading Systems, Inc. . . . . . . . . . . . . . N/A
Rainbow Venture . . . . . . . . . . . . . . . . . . . . N/A
Xxxx X. Xxxxxx (Rollover XXX) . . . . . . . . . . . . . N/A
Xxxx X. Xxxxxxxxxxxx (XXX) . . . . . . . . . . . . . . N/A
Xxxxxxx/Kulhanjian Family Trust . . . . . . . . . . . . N/A
Von Graffenreid AG, Private Bank . . . . . . . . . . . N/A
Westminster Telecom Investors, Inc. . . . . . . . . . . N/A
Willou & Co. . . . . . . . . . . . . . . . . . . . . . N/A
Total . . . . . . . . . . . . . . . 1,344,996
(a) Unless otherwise indicated, each Selling Stockholder is represented
by Xxxxx Xxxx LLP, One Metropolitan Square, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx.
Xxxxx, Xxxxxxxx 00000-0000, (which will on behalf of such Selling Stockholder
deliver an opinion on the form of Annex II-A) and has appointed Xxxxx X. Xxxxx
and Xxxxx X. Xxxxxxx, and each of them, as the Attorneys-in-Fact for such
Selling Stockholder.
15
EXHIBIT I
PRINCIPAL STOCKHOLDERS AND AFFILIATED DIRECTORS
The Centennial Funds
X. Xxxxxxx Xxxxxxxxxx, Jr. (Director)
Xxxxxx X. Xxxxxx Pol (Director)
Media/Communications Partners II Limited Partnership
Xxxxxx Investment Management, Inc.
Providence Media Partners L.P.
Xxxxxxxx X. Xxxxxx (Director)
XXXXXX FIBER PROPERTIES, INC. SENIOR OFFICERS
Xxxxxx X. Xxxxxx Chairman, Xxxxxx Fiber Properties, Inc.
Xxxxx X. Xxxxx Vice Chairman and Chief Executive Officer, BFP
D. Xxxxx Xxxxx President and Chief Operating Officer, BFP
Xxxx X. Xxxxxxxxx Executive Vice President - Regulatory and Corporate
Development, BFP
Xxxxx X. Xxxxxxx Executive Vice President and Chief Financial Officer, BFP
Xxxx X. Xxxxxx Senior Vice President, BFP and President, JB Telecom
Xxxxxxx X. Xxxxxxxxxxx Senior Vice President and General Counsel, BFP
Xxxxxxx Xxxx Senior Vice President, Marketing and Carrier/Resale
Sales, BFP
Xxx X. Xxxxxx Senior Vice President and Managing Director, GLA
International
Xxxx X. Xxxxx Senior Vice President - Operations, BFP
Xxxxxx X. Xxxxxx Senior Vice President - Corporate Communications and
Strategic Development, BFP
Xxxxxx X. Xxxx Vice President - Finance, BFP, and Senior Vice President
and Chief Financial Officer - JB Telecom, Inc.
-2-