1
Exhibit 1.4
XO Communications, Inc.
[FORM OF DEBT SECURITIES]
UNDERWRITING AGREEMENT
(INTERNATIONAL VERSION)
----------------------
[________________ ___,____]
[ ]
[ ]
[ ]
[ ]
as Representatives of the several
underwriters named in Schedule A hereto
c/o [ ]
[ ]
[ ]
[ ]
Ladies and Gentlemen:
XO Communications, Inc., a corporation organized under the laws
of the State of Delaware (the "Company"), proposes to issue and sell from time
to time certain of its debt securities registered under the registration
statement referred to in Paragraph 1(a)(i) hereof, the terms of which shall be
determined at the time of sale. The Company proposes to sell to the underwriters
named in Schedule A hereto (the "Underwriters") for whom you are acting as
representative(s) (the "Representatives"), the Securities with the terms and in
the aggregate principal amount specified in Schedule B hereto (the "[Firm]
Securities"). [At the election of the Underwriters, the Company proposes,
subject to the terms and conditions set forth herein, to sell the additional
principal amount of Securities specified in Schedule B hereto (the "Optional
Securities" and together with the Firm Securities, the "Securities").]
[It is understood and agreed to by all parties that the Company is
concurrently entering into an agreement (the "U.S. Underwriting Agreement")
providing for the sale by the Company of certain of its debt securities with the
terms and in the aggregate principal amount specified in Schedule C hereto (the
"U.S. Securities") through arrangements with certain underwriters in the United
States and Canada (the "U.S. Underwriters"), for whom
[___________________________], [___________________],
[__________________________] and [__________________________] are acting as lead
managers. Anything herein or therein to the contrary notwithstanding, the
respective closings under this Agreement and the U.S. Underwriting Agreement are
hereby expressly made conditional on one another. The Underwriters hereunder and
the U.S. Underwriters are simultaneously entering into an Agreement Between U.S.
Underwriters and International Underwriters (the "Agreement between U.S.
Underwriters and International Underwriters") which provides, among other
things, for the transfer of the Securities between the two syndicates. Two forms
of Prospectus are to be used in connection with the offering and sale of the
Securities contemplated by the foregoing, one relating to the Securities
hereunder and the other relating to the U.S. Securities. The latter form of
Prospectus will be identical to the former except for certain substitute pages
as included in the registration statement and amendments thereto as mentioned
below. Except as used in Sections 2(a), 2(b), 2(c) and 10 herein, and except as
the context may otherwise require, references hereinafter to the Securities
shall include all the Securities 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.]
1
2
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each of the Underwriters as of the date hereof and as
of [each of] the Closing Time[s] referred to in Section 2(c) hereof, and agrees
with each of the Underwriters as follows:
(i) Effectiveness of Registration Statement. A registration
statement on Form S-3 [(File No. 333-_____)] in respect of the Securities has
been filed with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Underwriters, excluding
exhibits thereto, but including all documents incorporated by reference in the
prospectus contained therein have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b) Registration Statement") filed pursuant to Rule
462(b) under the Securities Act of 1933 (the "Act") which became effective upon
filing, no other document with respect to such registration statement or
document incorporated by reference therein has heretofore been filed with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each in the form heretofore
delivered or to be delivered to the Representatives); and no stop order
suspending the effectiveness of the registration statement, any post-effective
amendment thereto or Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in the registration statement or
filed with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the registration statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement and the Rule 462(b) Registration Statement, if any, at the time such
part of such registration statement or such part of the Rule 462(b) Registration
Statement, if any, became effective but excluding Form T-1, each as amended at
the time such part of the registration statement or such part of the Rule 462(b)
Registration Statement, if any, became effective, are hereinafter collectively
called the "Registration Statement"; the prospectus relating to the Securities,
in the form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the Act,
as of the date of such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include any documents filed after
the date of such Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934 (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any report of the Company filed pursuant to Sections 13(a)
or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the applicable
Securities in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 3(a)(i) hereof, including any
documents incorporated by reference therein as of the date of such filing);
(ii) Compliance of the Registration Statement and Prospectus
with the Act. The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and
the rules and regulations of the Commission thereunder and do not and will not,
as of the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter of Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
2
3
(iii) Documents Incorporated by Reference. The documents
incorporated by reference in the Prospectus, when they became effective or were
filed with the Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter of Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(iv) Independent Accountants. The accountants who certified
the financial statements included in the Prospectus are independent certified
public accountants with respect to the Company and its subsidiaries within the
meaning of Regulation S-X under the Act.
(v) Financial Statements. The financial statements, together
with the related notes, included in the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries at the dates indicated
and the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The selected financial data included in the Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Prospectus.
(vi) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Prospectus, except as
otherwise stated therein, (1) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise (a "Material Adverse Effect"), whether or not arising in the ordinary
course of business, (2) there have been no transactions entered into by the
Company or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
considered as one enterprise and (3) there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its capital
stock, except for those declared, paid or made on the preferred stock of the
Company outstanding as of the date hereof [and as otherwise described on
Schedule D hereto].
(vii) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation under the laws of the State
of Delaware and has power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus and to enter into and
perform its obligations under this Agreement [and the U.S. Underwriting
Agreement]; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(viii) Good Standing of Designated Subsidiaries. Each
"significant subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Designated Subsidiary" and, collectively, the
"Designated Subsidiaries") has been duly organized and is validly existing and
in good standing, where applicable, as a corporation, limited liability company
or limited partnership, as the case may be, under the laws of the jurisdiction
of its formation, has power and authority to own, lease and operate its
properties and to conduct its business as described in the
3
4
Prospectus and is duly qualified as a foreign corporation, limited liability
company or limited partnership, as the case may be, to transact business and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would
not result in a Material Adverse Effect; except as otherwise disclosed in the
Prospectus, all of the issued and outstanding capital stock or other equity
interest of each Designated Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and at least 99% thereof is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock or other equity interests of the Designated
Subsidiaries were issued in violation of any preemptive or similar rights
arising by operation of law, or under the constituting or operative document or
agreement of any Designated Subsidiary or under any agreement to which the
Company or any Designated Subsidiary is a party.
(ix) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus as of the dates
indicated therein. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company, as applicable.
(x) Authorization of Underwriting Agreement[s]. This
Agreement [and the U.S. Underwriting Agreement] [has] [have] been duly
authorized, executed and delivered by the Company.
(xi) Authorization and Description of the Securities and the
Indenture. The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth in Schedule B hereto, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the applicable indenture identified
on Schedule B hereto and relating to the Securities, to be dated as of [________
__, _____] (the "Indenture") between the Company and [____________], as trustee
(the "Trustee"), under which they are to be issued, which will be substantially
in the form filed as an exhibit to the Registration Statement; [if the
Securities to be issued are convertible into Class A common stock: when the
Securities are delivered and paid for pursuant to this Agreement, such
Securities will be convertible into Class A common stock of the Company in
accordance with their terms; the shares of Class A common stock initially
issuable upon conversion of the Securities have been duly authorized and
reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of Class A common stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description thereof
contained in the Prospectus;] the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and delivered by the
Company and the Trustee, will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles; and
the Securities and the Indenture will conform in all material respects to the
descriptions thereof in the Prospectus as amended or supplemented with respect
to such Securities.
(xii) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its constituting or operative
document or agreement or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party, or by which or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments") except for such defaults that would
not result in a Material Adverse Effect; the issue and sale of the Securities,
the execution, delivery and performance of this Agreement, [the U.S.
Underwriting Agreement,] the Indenture, the Securities and any other agreement
or
4
5
instrument entered into or issued or to be entered into or issued by the Company
in connection with the transactions contemplated hereby, thereby or in the
Prospectus and the consummation of the transactions contemplated herein, therein
and in the Prospectus (including the issuance and sale of the Securities by the
Company hereunder [and under the U.S. Underwriting Agreement]), the compliance
by the Company with its obligations hereunder and under the [U.S. Underwriting
Agreement and] Indenture and the Securities have been duly authorized by all
necessary action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, the Agreements and
Instruments except for such conflicts, breaches or defaults or liens, charges or
encumbrances that, singly or in the aggregate, would not result in a Material
Adverse Effect, nor will such action result in any violation of the provisions
of the constituting or operative document or agreement of the Company or any of
its subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
subsidiaries or any of their assets or properties, except for such violations
that, singly or in the aggregate, would not result in a Material Adverse Effect.
As used herein, a "Repayment Event" means any event or condition which gives the
holder of any material note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the Company or any
of its subsidiaries to repurchase, redeem or repay all or a portion of such
indebtedness.
(xiii) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company of its obligations hereunder, in
connection with the offering, issuance or sale of the Securities hereunder or
the consummation of the actions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act or the Trust Indenture Act and
such consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters [and the U.S.
Underwriters].
(xiv) Possession of Licenses and Permits. Each of the Company
and its Designated Subsidiaries has all material certificates, consents,
exemptions, orders, permits, licenses, authorizations, franchises or other
material approvals (each, an "Authorization") of and from, and has made all
material declarations and filings with, all Federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, necessary or appropriate for the Company and its Designated
Subsidiaries to own, lease, license, use and construct its properties and assets
and to conduct its business in the manner described in the Prospectus, except to
the extent that the failure to obtain any such Authorizations or make any such
declaration or filing would not, singly or in the aggregate, result in a
Material Adverse Effect. Except as set forth in or contemplated by the
Prospectus, all such Authorizations are in full force and effect with respect to
the Company and its Designated Subsidiaries; to the best knowledge of the
Company, no event has occurred that permits, or after notice or lapse of time
could permit, the revocation, termination or modification of any such
Authorization; the Company and its Designated Subsidiaries are in compliance in
all material respects with the terms and conditions of all such Authorizations
and with the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto; and, except as set forth in the
Prospectus, the Company has no knowledge that any person is contesting or
intends to contest the granting of any material Authorization; and neither the
execution and delivery of this Agreement, [the U.S. Underwriting Agreement,] the
Indenture or the Securities, nor the consummation of the transactions
contemplated hereby and thereby nor compliance with the terms, conditions and
provisions hereof and thereof by the Company or any of its Designated
Subsidiaries will cause any suspension, revocation, impairment, forfeiture,
nonrenewal or termination of any Authorization.
(xv) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any existing labor
disturbance by the employees of any of its or any of its subsidiaries' principal
suppliers,
5
6
manufacturers, customers or contractors, which, in either case, would reasonably
be expected to result in a Material Adverse Effect.
(xvi) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or by any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its subsidiaries which could reasonably be expected to result
in a Material Adverse Effect or which might reasonably be expected to materially
and adversely affect the consummation of this Agreement[, the U.S. Underwriting
Agreement] or the Indenture or the performance by the Company of its obligations
hereunder or thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any subsidiary thereof is a party or of
which any of their respective property or assets is the subject which are not
described in the Prospectus, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material Adverse
Effect.
(xvii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them, and except
as otherwise described in the Prospectus neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by them and good title to
all other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Prospectus or
(b) do not, singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectus, are in full force and
effect, and neither the Company nor any of its subsidiaries has any notice of
any material claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any of its subsidiaries under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the Company
or any subsidiary thereof to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xix) Tax Returns. The Company and its subsidiaries have filed
all federal, state, foreign and, to the extent material, local tax returns that
are required to be filed or have duly requested extensions thereof and have paid
all taxes required to be paid by any of them and any related assessments, fines
or penalties, except for any such tax, assessment, fine or penalty that is being
contested in good faith and by appropriate proceedings; and adequate charges,
accruals and reserves have been provided for in the financial statements
referred to in Section 1(a)(v) above in respect of all federal, state, local and
foreign taxes for all periods as to which the tax liability of the Company or
any of its subsidiaries has not been finally determined or remains open to
examination by applicable taxing authorities.
(xx) Environmental Laws. Except as described in the
Prospectus and except such matters as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or any
judicial or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
6
7
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or, to the Company's knowledge,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) there are no events or circumstances
that would reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or Environmental Laws.
(xxi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(xxii) Certain Disclosures in Prospectus. The statements set
forth in the Prospectus under the caption "Description of the Notes", insofar as
they purport to constitute a summary of the terms of the Securities, and under
the caption "Underwriting", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate and complete in all
material respects[; and the statements set forth in the Prospectus under the
caption "Material United States Federal Income Tax Consequences", insofar as
such statements purport to summarize certain United States federal income and
estate tax consequences of the ownership and dispensation of the Securities by
certain U.S. Holders (as such terms are defined in the Prospectus) of the
Securities, provide a fair summary of such consequences under current law].
(xxiii) No Manipulation or Stabilization. Neither the Company
nor, to its knowledge, any of its officers, directors or affiliates has taken
and will take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Underwriters or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, [(a)]
the Company agrees to issue and sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the purchase price and subject to the other terms set forth
in this Agreement and Schedule B hereto, the principal amount of the [Firm]
Securities set forth opposite its name in Schedule A hereto [and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Securities as provided below, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company at the purchase price and subject
to the other terms set forth in this Agreement and Schedule B hereto, the
principal amount of the Optional Securities as to which such election shall have
been exercised determined by multiplying such aggregate principal amount of
Optional Securities by a fraction, the numerator of which is the maximum
aggregate principal amount of Optional Securities which such Underwriter is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule A hereto and the denominator
7
8
of which is the maximum aggregate principal amount of Optional Securities 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 [$_________] additional aggregate principal amount [at
stated maturity] of Optional Securities at the purchase price and subject to the
other terms set forth in this Agreement and Schedule B hereto, for the sole
purpose of covering overallotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised only by written notice
from the Representatives to the Company, given within a period of 30 calendar
days after the date of this Agreement, setting forth the aggregate number of
Optional Securities to be purchased and the date on which such Optional
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Closing Time (as defined in Section 2(c) hereof)
or, unless the Representative and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.]
(b) Terms and Conditions of Sale. Upon the authorization by the
Representatives of the release of the Securities, the several Underwriters
propose to offer the Securities for sale upon the terms and conditions set forth
in the Prospectus.
(c) Closing and Payment. The Securities to be purchased by each
Underwriter hereunder, in definitive form, and in such authorized denominations
and registered in such names as the Representatives may request upon at least 48
hours' prior notice to the Company shall be delivered by or on behalf of the
Company to the Underwriters, through the facilities of the Depository Trust
Company ("DTC") (unless the Representatives shall otherwise instruct) for the
account of such Underwriter, against payment by or on behalf of such Underwriter
of the purchase price therefor to the Company in funds specified on Schedule B
hereto, all in the manner and at the place and time and date [with respect to
each of the Firm Securities and the Optional Securities] specified on Schedule B
hereto (or at such other place and time and date as the Representatives and the
Company may agree upon in writing ([with respect to the Firm Securities, such
place and time and date being referred to herein as ]the "[First] Closing Time"
[and with respect to the Optional Securities, the "Second Closing Time"]). The
Company will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to [each
of] the [relevant] Closing Time[s] with respect thereto at the offices of DTC or
its designated custodian (the "Designated Office"). It is understood and agreed
that each Closing Time under this Agreement shall occur simultaneously with each
Closing Time under the U.S. Underwriting Agreement.]
SECTION 3. Covenants.
(a) Covenants of the Company. The Company covenants with each
Underwriter as follows:
(i) Preparation of Prospectus; Notices. To prepare the
Prospectus in a form approved by the Underwriters and to file such Prospectus,
properly completed, and any supplement thereto, pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second business
day following the execution and delivery of this Agreement, or, if applicable,
such earlier time as may be required by Rule 424(b) under the Act, and to
provide evidence satisfactory to the Underwriters of such timely filing; to make
or file no further amendment or any supplement to the Registration Statement or
Prospectus as amended or supplemented after the date of this Agreement relating
to the Securities and prior to [each of] the [relevant] Closing Time[s] for such
Securities which shall be disapproved by the Representatives promptly after
reasonable notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Closing Time and furnish the Representatives
with copies thereof; if the Company elects to rely upon Rule 462(b), to file a
Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m., Washington D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fees as applicable under the Act; to file promptly all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the
8
9
delivery of a prospectus is required in connection with the offering or sale of
the Securities, and during such same period to advise the Underwriters, promptly
after it receives notice thereof, of the time when the Rule 462(b) Registration
Statement has been filed or becomes effective or the Prospectus or any amended
Prospectus has been filed and to furnish the Underwriters with copies thereof;
to advise the Underwriters, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus, of the suspension of the qualification of
the Securities [or the shares of Class A common stock into which the Securities
are convertible] for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any stop order or of any order preventing or suspending the use of any
Prospectus or suspending any such qualification, promptly to use its best
efforts to obtain the withdrawal of such order.
(ii) Qualifications of the Securities under State Securities
Laws. Promptly from time to time to take such action as the Underwriters may
reasonably request to qualify the Securities [or the shares of Class A common
stock issuable upon the conversion of such Securities] for offering and sale
under the securities laws of such jurisdictions as they may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(iii) Copies of and Amendments to Prospectus and Supplements.
Except as otherwise agreed, prior to 12:00 noon on the New York Business Day
next succeeding the date of this Agreement, to furnish the Underwriters with
copies of the Prospectus in New York City in such quantities as the Underwriters
may reasonably request, and, if the delivery of a Prospectus is required at any
time prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the Securities [or the
shares of Class A common stock into which the Securities are convertible] and if
at such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the Prospectus
in order to comply with the Act, to notify the Underwriters and upon their
request to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Underwriters may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
which will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a Prospectus in connection with
sales of any of the Securities at any time nine months or more after the time of
issue of the Prospectus, upon the Underwriters' request but at the expense of
such Underwriter, to prepare and deliver to such Underwriter as many copies as
the Underwriters may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act. The Company will advise the Underwriters
promptly of any proposal to amend or supplement the Prospectus and will not
effect such amendment or supplement without the consent of the Underwriters.
Neither the consent of the Underwriters, nor the Underwriter's delivery of any
such amendment or supplement, shall constitute a waiver of any of the conditions
set forth in Section 5 hereof.
(iv) Investment Company. Not to be or become, at any time
prior to the expiration of three years after the [relevant] Closing Time, an
open-end investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the 1940 Act.
[(v) Information to the Underwriters. During a period of five
years from the effective date of the Registration Statement, to furnish to the
Underwriters copies of all reports or other communications (financial or other)
furnished to stockholders and to deliver to the Underwriters such additional
information concerning the business and financial condition of the Company as
the Underwriters may from time to time reasonably request (such financial
statements to be on a consolidated basis to
9
10
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission).]
(vi) Use of Proceeds. To use the net proceeds received by it
from the sale of the Securities pursuant to this Agreement [and the
International Underwriting Agreement] in the manner specified in the Prospectus
under the caption "Use of Proceeds".
(viii) Earning Statement. To make generally available to its
stockholders as soon as practicable, but in any event not later than the 45th
day following the end of the fiscal quarter first occurring after the first
anniversary of the date of the Underwriting Agreement, as that date is specified
on Schedule B hereto, (as defined in Rule 158(c) under the Act), an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158).
[(ix) Lock-Up. During the period beginning from the date of
the Underwriting Agreement, as that date is specified on Schedule B hereto, and
continuing for the duration of the lock-up period specified on Schedule B hereto
(the "Lock-Up Period"), not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, or announce an offering of, except as
provided hereunder [or under the U.S. Underwriting Agreement], any [_____]
[securities] of the Company in an offering to the public or in a private
offering where holders of [_____] [securities] are granted rights to have such
securities registered under the Act, [or to exchange such debt securities for
other debt securities that are so registered] [or, in the event the Securities
are convertible into shares of Class A common stock, shares of Class A common
stock or any securities convertible into or exchangeable for Shares other than
(i) grants of options and issuances and sales of Class A common stock issued
pursuant to any employee or director stock option plan, stock ownership plan,
401(k) savings and retirement plan, or stock purchase plan in effect on the date
of this Agreement, (ii) issuances of Class A common stock upon the conversion of
securities or the exercise of warrants outstanding on the date of this
Agreement, (iii) issuance of Class B common stock upon exercise of options
outstanding on the date of this Agreement, (iv) issuance of common stock
pursuant to agreements in effect on the date of this Agreement (which issuances
will not involve the issuance of a material amount of shares of common stock) or
(v) issuance of common stock in connection with acquisitions.]
[(b) Covenants of the Underwriters.
Each Underwriter agrees that:
(i) it is not purchasing any of the Securities for the
account of any United States or Canadian Person;
(ii) it has not offered or sold, and will not offer or sell,
directly or indirectly, any of the Securities and has not distributed and will
not distribute any Prospectus to any person in the United States or Canada, or
to any United States or Canadian Person; and
(iii) any dealer to whom it may sell any of the Securities
will represent that it is not purchasing for the account of any United States or
Canadian Person and agree that it will not offer or resell, directly or
indirectly, any of the Securities in the United States or Canada, or to any
United States or Canadian Person or to any other dealer who does not so
represent and agree;
provided, however, that the foregoing shall not restrict [(A) purchases and
sales between the Underwriters on the one hand and the U.S. Underwriters on the
other hand pursuant to the Agreement Between U.S. Underwriters and International
Underwriters, (B)] stabilization transactions contemplated under the Agreement
Between U.S. Underwriters and International Underwriters, conducted through
[_______________] (or through the Representatives [and U.S. Representatives]) as
a part of the distribution of the Securities, and (C) sales to or through (or
distributions of Prospectuses or Preliminary Prospectuses to) persons not United
States or Canadian Persons who are investment advisors, or who otherwise
exercise investment discretion, and who are purchasing for the account of any
United States or Canadian Person.
10
11
The agreements of the Underwriters set forth in this paragraph (b) of
Section 3 shall terminate upon the earlier of the following events:
(i) a mutual agreement of the Representatives and the U.S.
Representatives to terminate the selling restrictions set forth in this
paragraph (b) of this Section 3 [and in Section 3(b) of the U.S. Underwriting
Agreement]; or
(ii) the expiration of a period of 30 days after [each of]
the [relevant] Closing Time[s], unless (A) the Representatives shall have given
notice to the Company and the U.S. Representatives that the distribution of the
Securities by the Underwriters has not yet been completed, [or (B) the U.S.
Representatives shall have given notice to the Company and the International
Underwriters that the distribution of the U.S. Securities by the U.S.
Underwriters has not yet been completed]. If such notice by the [U.S.
Representatives or the] Representatives is given, the agreements set forth in
such paragraph (b) shall survive until the earlier of (1) the event referred to
in the immediately preceding clause (i) of this paragraph (b) or (2) the
expiration of an additional period of 30 days from the date of any such notice.
"United States or Canadian Person" shall mean any person who is a
national or resident of the United States or Canada, any corporation,
partnership, or other entity created or organized in or under the laws of the
United States or Canada or of any political subdivision thereof, or any estate
or trust the income of which is subject to United States or Canadian Federal
income taxation, regardless of its source (other than any non-United States or
non-Canadian branch of any United States or Canadian Person), and shall include
any United States or Canadian branch of a person other than a United States or
Canadian Person. "U.S. or "United States" shall mean the United States of
America (including the states thereof and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction.]
SECTION 4. Payment of Expenses.
(a) Expenses. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the following: (i)
the fees, disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or
reproducing any Agreement among Underwriters, this Agreement, [the U.S.
Underwriting Agreement, the Agreement Between U.S. Underwriters and
International Underwriters,] the Indenture, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 3(b) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey, (iv) any fees charged
by securities rating services for rating the Securities, (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, securing any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the cost and charges of any transfer
agent or registrar and of DTC; (viii) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, and (ix) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 6
and 7 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
11
12
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder, as to the
Securities to be delivered at [each of] the [relevant] Closing Time[s], are
subject to the accuracy, at and as of such Closing Time, of the representations
and warranties of the Company contained in Section 1 hereof or in certificates
of any officer of the Company or any of its subsidiaries delivered pursuant to
the provisions hereof, to the performance by each of the Company of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Filing of Prospectus. The Prospectus as amended or supplemented
in relation to the applicable Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in accordance
with Section 3(a)(i) hereof; if the Company has elected to rely upon Rule
462(b), the Rule 462(b) Registration Statement shall have become effective by
10:00 p.m., Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Opinion of Counsel for Company. At [each of] the [relevant]
Closing Time[s], the Underwriters shall have received the favorable opinion,
dated as of the [relevant] Closing Time, of Xxxxx Day Xxxxxx & Xxxxx, counsel
for the Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect set forth in [Exhibit A] hereto, and to such further
effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for Underwriters. At [each of] the [relevant]
Closing Time[s], the Underwriters shall have received the favorable opinion,
dated as of the [relevant] Closing Time, of [____________], counsel for the
Underwriters, with respect to the incorporation of the Company, the Indenture,
the validity of the Securities being delivered at the Closing Time, the
Registration Statement, the Prospectus and such other related matters as the
Underwriters may reasonably request. In giving such opinion such counsel may
rely, as to all matters governed by the laws of jurisdictions other than the law
of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriters. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) Officers' Certificate. At [each of] the [relevant] Closing
Time[s], there shall not have been, since the date hereof or since the date of
the most recent financial statements included in the Prospectus (exclusive of
any supplement thereto), any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business except as set forth
in the Prospectus (exclusive of any supplement thereto), and the Underwriters
shall have received certificates of the Chairman of the Board, the President or
a Vice President of the Company and of the chief financial or chief accounting
officer of the Company, satisfactory to the Underwriters, to the effect that, at
and as of such Closing Time, (i) they have carefully examined the Registration
Statement, the Preliminary Prospectus, the Prospectus and any supplements
thereto and this Agreement, (ii) there has been no such material adverse change,
(iii) the representations and warranties of the Company in Section 1 hereof are
true and correct in all material respects on and as of the Closing Time with the
same force and effect as though expressly made at and as of such Closing Time,
(iv) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to such Closing Time, and
(v) no stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened.
(e) Accountant's Comfort Letter. On the date of this Agreement at a
time prior to the execution of this Agreement, the Underwriters shall have
received from Xxxxxx Xxxxxxxx LLP a letter or letters dated the effective date
of the Registration Statement or the date of the most recent report filed with
the Commission containing
12
13
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective date, in form
and substance satisfactory to the Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
the Underwriters with respect to the financial statements and certain financial
information contained in the Prospectus.
(f) Bring-down Comfort Letter. At [each of] the [relevant] Closing
Time[s], the Underwriters shall have received from Xxxxxx Xxxxxxxx LLP a letter,
dated as of the [relevant] Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (e) of this
Section 5, except that the specified date referred to shall be a date not more
than three business days prior to such Closing Time.
(g) No Material Adverse Change in Business. Since the date of the
latest audited financial statements included or incorporated by reference in the
Prospectus as amended prior to the date of this Agreement (1) there has been no
Material Adverse Effect, whether or not arising in the ordinary course of
business, (2) there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise (3) there has been no dividend or distribution of any kind, declared,
paid or made by the Company on any class of its capital stock, except for those
declared, paid or made on the preferred stock of the Company outstanding as of
the date hereof [and as otherwise described on Schedule D hereto] and (4) there
has been no change or decrease specified in the letters referred to in Section
5(e) and 5(f) above, the effect of which, in any case referred to in clauses (1)
through (4) above, is, in the sole judgment of the Underwriters, so material and
adverse as to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus relating to the
Securities.
(h) Maintenance of Rating. On or after the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Company's debt securities or preferred stock by any nationally recognized
securities rating agency, and no such securities rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities or
preferred stock.
(i) Delivery of Prospectuses. The Company shall have complied with
the provisions of Section 3(a)(iii) hereof with respect to the furnishing of
Prospectuses on the New York Business Day next succeeding the date of this
Agreement.
(j) Adequate Disclosure of Litigation. There is no litigation or
governmental or other action, suit, claim, proceeding or investigation before
any court or any public, regulatory or governmental agency or body, pending or,
to the best of the Company's knowledge, threatened against the Company or any of
its subsidiaries or any of their respective officers (in their capacity as
officers of the Company or such subsidiaries) or any of the properties, assets,
business or rights of the Company or such subsidiaries which is of a character
required to be disclosed in the Registration Statement and Prospectus which is
not disclosed therein.
(k) Additional Documents. At [each of] the [relevant] Closing
Time[s]: (i) the Company shall have furnished to the Underwriters such further
information, certificates and documents as the Underwriters may reasonably
request; (ii) counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and (iii) all
proceedings taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to the [relevant] Closing Time, and such termination shall be
without liability of any
13
14
party to any other party except as provided in Section 4 and except that
Sections 1, 6 and 7 shall survive any such termination and remain in full force
and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, liabilities (joint or several), claims, damages and
expenses whatsoever, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Underwriters specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, each of
its directors, each of its officers who sign the Registration Statement
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act against any and all losses, liabilities (joint or
several), claims, damages and expenses described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to written
information furnished to the Company by such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity.
(c) Actions against Parties; Notification. Each indemnified party
shall give written notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party
14
15
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the indemnifying
party. It is understood that the indemnifying party shall, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable only
for the fees and expenses of one separate firm (in addition to local counsel)
for all such indemnified parties. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim; provided, that such unconditional release
may be subject to a parallel release of a claimant or plaintiff by such
indemnified party from all liability in respect of claims or counterclaims
asserted by such indemnified party and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SECTION 7. Contribution.
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses (including legal or
other expenses reasonably incurred in connection with investigating or defending
same) incurred by such indemnified party, as incurred, (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement (provided that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder) or (ii) if the allocation provided by
clause (i) is unavailable for any reason, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities 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
15
16
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
Notwithstanding the provisions of this Section 7, no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company submitted pursuant
hereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or controlling person, or
by or on behalf of the Company, and shall survive delivery of the Securities to
the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. This Agreement shall be subject to
termination in the absolute discretion of the Underwriters, by notice given to
the Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Class A common stock shall have
been suspended by the Commission or the NASDAQ or trading in securities
generally on the New York Stock Exchange or the NASDAQ shall have been suspended
or limited or minimum prices shall have been established on such Exchange or
NASDAQ, (ii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iii) there shall have occurred, subsequent to the
signing hereof, any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Underwriters, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6 and 7 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If any one or more of the Underwriters shall fail to purchase and pay
for any of the Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the amount of Securities set forth opposite
their names in Schedule A hereto bears to the aggregate amount of Securities set
forth opposite the names of all the remaining Underwriters) the Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of Securities
which the defaulting Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set forth in Schedule A
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all of the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 10, the [relevant] Closing Time shall be postponed for such period, not
exceeding five Business Days, as the Underwriters shall determine in order that
the required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be
16
17
effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
SECTION 11. Reliance; Notices.
In all dealings hereunder, the Representatives shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to act and
rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by such Representatives jointly or by [____________]
on their behalf.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile to the Representative at its address set forth in Schedule B hereto;
and if to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Prospectus,
Attention: General Counsel; provided, however, that any notice to an Underwriter
pursuant to Section 6(c) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Underwriters upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
SECTION 12. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal Underwriters, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriters, the Company and their respective successors, and said controlling
persons and officers and directors and their heirs and legal Underwriters, and
for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. Time of the Essence.
Time shall be of the essence of this Agreement. As used herein, the term
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
SECTION 14. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
SECTION 15. Effect of Headings.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 16. Counterparts.
This Agreement may be executed by any one of more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, and upon
the acceptance hereof by [____________], on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement
between each of the Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of
17
18
Agreement among [International] Underwriters, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
XO Communications, Inc.
By:
--------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
[ ]
[ ]
[ ]
[ ]
By: [ ]
By:[ ]
-----------------------------------------
Name:
Title:
For themselves and on behalf of the
other Underwriters named in Schedule A hereto.
18
19
SCHEDULE A
Aggregate Principal Amount Aggregate Principal Amount
[At Stated Maturity] of [At Stated Maturity] of
[Firm] Securities to be [Optional] Securities to be
Underwriter Purchased Purchased
----------- --------- ---------
Total..................... $ $
19
20
SCHEDULE B
SECURITIES
UNDERWRITING AGREEMENT dated __________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
SECURITIES:
TITLE:
AGGREGATE PRINCIPAL AMOUNT:
[FIRM:]
[OPTIONAL:]
PRICE TO THE PUBLIC:
[__]% of the principal amount of the Securities, plus accrued interest[,
if any,] from [_______] to [_____]
PURCHASE PRICE BY UNDERWRITERS:
[__]% of the principal amount of the Securities, plus accrued interest[,
if any,] from [______] to [______]
SPECIFIED FUNDS
[Federal (same day)]
[New York Clearing House (next day)] funds
TIME OF DELIVERY:
[__] a.m. on [__________], 200_, at [________] to be made available for
checking and packaging at the office of [__________________] at least 24
hours prior to the [relevant] Closing Time.
PRE-CLOSING: [_____]p.m. on [__________], 200[__], at [____________].
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount of
[$__] of an integral multiple thereof,
[on or after [_________,___] at the following redemption prices
(expressed in percentage of principal amount). If [redeemed on or before
[_________,___], [__]%, and if] redeemed during the 12-month period
beginning [__________,__],
Year Redemption Price
---- ----------------
20
21
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after [_________,___] at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to date of the redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire
[$__] principal amount of Securities on in each of the years through
[________] at 100% of their principal amount plus accrued interest[,
together with [cumulative] [noncumulative] redemptions at the option of
the Company to retire an additional [$__] principal amount of Securities
in the years [__] through [__] at 100% of their principal amount plus
accrued interest.]
[LOCK-UP PERIOD: ____________________]
[CONVERTIBLE TERMS:
The Securities are convertible into shares of [Class A common stock] at
a rate of [_______] shares of [Class A common stock] per $1,000 principal amount
of the Securities or a conversion price of approximately [$_______] per share.
The conversion rate is subject to adjustment in certain events.]
[OTHER TERMS:]
The aggregate principal amount of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The Securities will be made available for checking and packaging at the
office of ______________________ at least 24 hours prior to the Closing Date.
21
22
SCHEDULE C
U.S. SECURITIES
UNDERWRITING AGREEMENT dated __________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
SECURITIES:
TITLE:
AGGREGATE PRINCIPAL AMOUNT:
[FIRM:]
[OPTIONAL:]
PRICE TO THE PUBLIC:
[__]% of the principal amount of the Securities, plus accrued interest[,
if any,] from [_______] to [_____]
PURCHASE PRICE BY UNDERWRITERS:
[__]% of the principal amount of the Securities, plus accrued interest[,
if any,] from [______] to [______]
SPECIFIED FUNDS
[Federal (same day)]
[New York Clearing House (next day)] funds
TIME OF DELIVERY:
[__] a.m. on [__________], 200_, at [________] to be made available for
checking and packaging at the office of [__________________] at least 24
hours prior to the [relevant] Closing Time.
PRE-CLOSING: [_____]p.m. on [__________], 200[__], at [____________].
MATURITY:
INTEREST RATE:
INTEREST PAYMENT DATES:
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the amount of
[$__] of an integral multiple thereof,
[on or after [_________,___] at the following redemption prices
(expressed in percentage of principal amount). If [redeemed on or before
[_________,___], [__]%, and if] redeemed during the 12-month period
beginning [__________,__],
Year Redemption Price
---- ----------------
22
23
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling on or after [_________,___] at the
election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to date of the redemption.]]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to retire
[$__] principal amount of Securities on in each of the years through
[________] at 100% of their principal amount plus accrued interest[,
together with [cumulative] [noncumulative] redemptions at the option of
the Company to retire an additional [$__] principal amount of Securities
in the years [__] through [__] at 100% of their principal amount plus
accrued interest.]
[LOCK-UP PERIOD: ____________________]
[CONVERTIBLE TERMS:]
[The Securities are convertible into shares of [Class A common stock] at
a rate of [_______] shares of [Class A common stock] per $1,000 principal amount
of the Securities or a conversion price of approximately [$_______] per share.
The conversion rate is subject to adjustment in certain events.]
[OTHER TERMS:]
The aggregate principal amount of the Securities to be purchased by each
of the Underwriters are set forth opposite their names in Schedule A hereto.
The Securities will be made available for checking and packaging at the
office of ______________________ at least 24 hours prior to the Closing Date.
23
24
[SCHEDULE D]
[OUTSTANDING PREFERRED STOCK]
24
