10,700,000 Shares of Common Stock
SPLITROCK SERVICES, INC.
UNDERWRITING AGREEMENT
----------------------
July __, 1999
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
Splitrock Services, Inc., a corporation organized and existing under
the laws of Delaware (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 10,700,000 shares (the
"Firm Shares") of its common stock, par value $.001 per share (the "Common
Stock"). In addition, for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares, the Company and certain selling
shareholders named in Schedule III hereto (the "Selling Stockholders") have
granted to the Underwriters an option, exercisable by the Underwriters as
provided in Section 2(c) hereof, to purchase up to an additional 1,472,628 and
157, 372 shares, respectively, (the "Additional Shares") of Common Stock. The
Firm Shares and any Additional Shares purchased by the Underwriters are referred
to herein as the "Shares." The Shares are more fully described in the
Registration Statement referred to below.
1. Representations and Warranties of the Company and the Selling
-------------------------------------------------------------
Stockholders.
------------
(a) The Company represents and warrants to, and agrees with, the
Underwriters that:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, and may have filed
an amendment or amendments thereto, on Form S-1 (No. 333-79909), for the
registration of
the Shares under the Securities Act of 1933, as amended (the "Act"). Such
registration statement, including the prospectus, financial statements and
schedules, exhibits and all other documents filed as a part thereof, as
amended at the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A or Rule 434 of the
Rules and Regulations of the Commission under the Act (the "Regulations"),
is herein called the "Registration Statement" and the prospectus, in the
form first filed with the Commission pursuant to Rule 424(b) of the
Regulations or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) or Rule 434 filing is required, is herein
called the "Prospectus." The term "preliminary prospectus" as used herein
means a preliminary prospectus as described in Rule 430 of the Regulations.
(ii) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission,
when any document filed under the Exchange Act is filed and at the Closing
Date and the Additional Closing Date, if any, (as hereinafter respectively
defined), the Registration Statement and the Prospectus and any amendments
thereof and supplements thereto complied or will comply in all material
respects with the applicable provisions of the Act and the Regulations and
does not or will not contain an untrue statement of a material fact and
does not or will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein (i) in the
case of the Registration Statement, not misleading and (ii) in the case of
the Prospectus, in light of the circumstances under which they were made,
not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the registration statement
for the registration of the Shares or any amendment thereto or pursuant to
Rule 424(a) of the Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such preliminary
prospectus and any amendments thereof and supplements thereto complied in
all material respects with the applicable provisions of the Act and the
Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein in light of the
circumstances under which they were made not misleading. No representation
and warranty is made in this subsection (b), however, with respect to any
information contained in or omitted from the Registration Statement or the
Prospectus or any related preliminary prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through you as herein stated or by or on behalf of any Selling Stockholder
insofar as it relates to such Selling Stockholder, in each case expressly
for use in connection with the preparation thereof. If Rule 434 is used,
the Company will comply with the requirements of Rule 434.
2
(iii) PricewaterhouseCoopers LLP, who have certified the
financial statements and supporting schedules included in the Registration
Statement, are independent public accountants as required by the Act and
the Regulations.
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as set forth in the Registration Statement and the Prospectus, there
has been no material adverse change or any development involving a
prospective material adverse change in the business, prospects, properties,
operations, condition (financial or other) or results of operations of the
Company whether or not arising from transactions in the ordinary course of
business. Since the date of the latest balance sheet presented in the
Registration Statement and the Prospectus, the Company has not incurred or
undertaken any liabilities or obligations, direct or contingent, which are
material to the Company taken as a whole, except for liabilities or
obligations which are reflected in the Registration Statement and the
Prospectus.
(v) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company and this Agreement has
been duly and validly executed and delivered by the Company.
(vi) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby do
not and will not (i) conflict with or result in a breach of any of the
terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to, any agreement,
instrument, franchise, license or permit to which the Company is a party or
by which any of such corporations or their respective properties or assets
may be bound or (ii) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company or any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company or any of its properties or assets. No consent, approval,
authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its
properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the
Shares to be issued, sold and delivered by the Company hereunder, except
the registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses
and permits as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
3
(vii) All of the outstanding shares of Common Stock are duly
and validly authorized and issued, fully paid and nonassessable and were
not issued and are not now in violation of or subject to any preemptive
rights. The Shares, when issued, delivered and sold in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
nonassessable, and will not have been issued in violation of or be subject
to any preemptive rights. The Company had, at June 30, 1999, an authorized
and outstanding capitalization as set forth in the Registration Statement
and the Prospectus. The Common Stock, the Firm Shares and the Additional
Shares conform in all material respects to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(viii) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation. The Company is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary,
except for those failures to be so qualified or in good standing which will
not in the aggregate have a material adverse effect on the Company. The
Company has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses
and permits of and from all public, regulatory or governmental agencies and
bodies, to own, lease and operate its properties and conduct its business
as now being conducted and as described in the Registration Statement and
the Prospectus except as would not have a material adverse effect on the
Company, and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome
restriction not adequately disclosed in the Registration Statement and the
Prospectus. The Company has no subsidiary or subsidiaries which,
individually or in the aggregate, as of the date hereof have more than
$100,000 in assets (measured at the lower of book or fair market value) or
$100,000 in liabilities (whether direct or contingent).
(ix) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company is a party or to
which any property of the Company is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company which might
result in any material adverse change or any development involving a
material adverse change in the business, prospects, properties, operations,
condition (financial or other) or, results of operations of the Company or
which is required to be disclosed in the Registration Statement and the
Prospectus.
(x) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the
sale or resale of the Shares.
4
(xi) The financial statements, including the notes thereto,
and supporting schedules included in the Registration Statement and the
Prospectus present fairly the financial position of the Company as of the
dates indicated and the results of its operations for the periods
specified; except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein.
(xii) Except as described in the Prospectus, no holder of
securities of the Company has any rights to the registration of securities
of the Company because of the filing of the Registration Statement or
otherwise in connection with the sale of the Shares contemplated hereby.
(xiii) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940.
(b) Each Selling Stockholder severally represents and warrants
to, and agrees with, the several Underwriters that:
(i) Each Selling Stockholder has (i) caused a certificate or
certificates for the number of Shares to be sold by each Selling
Stockholder hereunder to be delivered to Xxxxxxx X. XxXxxxxxxx, Xx., Esq.
in his capacity as custodian (the "Custodian") under the Custody Agreement
(as defined below), endorsed in blank or with blank stock powers duly
executed and with signatures appropriately guaranteed by a member firm of
the New York Stock Exchange or commercial bank, such certificate or
certificates to be held in the custody of the Custodian in accordance with
the terms of the Custody Agreement for delivery pursuant to the provisions
hereof on the Closing Date or the Additional Closing Date, if any, as the
case may be, and (ii) granted an irrevocable power of attorney to Xxxxxxx
X. Xxxxxx and Xxxxxxx X. XxXxxxxxxx, Xx., as such Selling Stockholder's
attorneys-in-fact (the "Attorneys-In-Fact") in the form attached hereto as
Exhibit A (the "Power of Attorney", and together with the Power of Attorney
executed by each other Selling Stockholder and the Custody Agreement in the
form attached hereto as Exhibit B, the "Custody Agreement").
(ii) The execution, delivery and performance of this
Agreement and the Custody Agreement on behalf of each Selling Stockholder
and the consummation of the transactions contemplated hereby and thereby
will not (i) conflict with or result in the breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) or require consent
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of such Selling Stockholder
pursuant to the terms of, any agreement,
5
instrument, franchise, license or permit to which such Selling Stockholder
is a party or by which such Selling Stockholder or any of such Selling
Stockholder's property or assets may be bound, including, without
limitation, the terms of any trust or similar agreement under which any
such Selling Stockholder was formed, or (ii) violate or conflict with any
judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over
such Selling Stockholder or such Selling Stockholder's properties or
assets.
(iii) Each Selling Stockholder has, and at the time of
delivery of the Shares to be sold by such Selling Stockholder such Selling
Stockholder will have, full legal right, power, authority and capacity,
and, except as required under the Act and state securities and Blue Sky
laws, all necessary consents, approvals, authorizations, orders,
registrations, filings, qualifications, licenses and permits of and from
all public, regulatory or governmental agencies and bodies, as are required
for the execution, delivery and performance of this Agreement, the Custody
Agreement, and the consummation of the transactions contemplated hereby and
thereby, including the sale, assignment, transfer and delivery of the
Shares to be sold, assigned, transferred and delivered by such Selling
Stockholder hereunder.
(iv) This Agreement and the Custody Agreement have been duly
and validly authorized, executed and delivered by such Selling Stockholder
and, assuming the execution and delivery by the other parties hereto and
thereto, are valid and binding obligations of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with its
respective terms except to the extent that (a) the enforceability hereof
and thereof may be subject to applicable bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium, liquidation,
conservatorship and other laws affecting creditors' rights generally, (b)
equitable principles may limit the availability of equitable relief in the
case of a breach hereof (regardless of whether such remedies are sought in
a proceeding at law or in equity), and (c) federal securities laws may
limit the enforceability of the indemnification provisions hereof and
thereof.
(v) Each Selling Stockholder has good, valid and marketable
title to the Shares to be sold by such Selling Stockholder pursuant to this
Agreement, free and clear of all liens, encumbrances, adverse claims,
security interests, restrictions on transfer, shareholders' agreements,
voting trusts, options and other defects in title whatsoever, with full
power to deliver such Shares hereunder, and, upon the delivery of and
payment for such Shares as herein contemplated, each of the Underwriters
will receive good, valid and marketable title to the Shares purchased by it
from such Selling Stockholder, free and clear of all liens, encumbrances,
adverse claims, security interests, restrictions on transfer, shareholders'
agreements, voting trusts, options and other defects in title whatsoever.
6
(vi) Each Selling Stockholder has not taken and will not
take, directly or indirectly, any action which has constituted or which was
designed to constitute or which might be reasonably expected to cause or
result in stabilization or manipulation (in each case as such terms are
defined in the Exchange Act and the rules and regulations promulgated
thereunder) of the price of the shares of Common Stock.
(vii) When the Registration Statement shall become effective,
when any amendment to the Registration Statement becomes effective, when
the Prospectus is first filed with the Commission pursuant to Rule 424(b)
of the Regulations, when any supplement to or amendment of the Prospectus
is filed with the Commission, and at the Closing Date or the Additional
Closing Date, if any, such parts of the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto as relate to
such Selling Stockholder and are based upon information furnished in
writing to the Company by or on behalf of such Selling Stockholder
expressly for use therein will not contain an untrue statement of a
material fact and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein: (i) in
the case of the Registration Statement, not misleading, and (ii) in the
case of the Prospectus, in light of the circumstances under which they were
made, not misleading. When any related preliminary prospectus was first
filed with the Commission (whether filed as part of the Registration
Statement for the registration of the Shares or any amendment thereto or
pursuant to Rule 424(a) of the Regulations) and when any amendment thereof
or supplement thereto was first filed with the Commission, such parts of
such preliminary prospectus and any amendments thereof and supplements
thereto as relate to such Selling Stockholder and are based on information
furnished in writing to the Company by or on behalf of such Selling
Stockholder expressly for use therein did not contain an untrue statement
of a material fact and did not omit to state any material fact required to
be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(viii) Except as described in the Registration Statement and
the Prospectus, each Selling Stockholder (i) does not have any preemptive
right, co-sale right or right of first refusal or other similar right to
purchase any of the Shares that are to be sold by any of the other Selling
Stockholders to the Underwriters pursuant to this Agreement, and (ii) does
not own any warrants, options or similar rights to acquire, and does not
have any right or arrangement to acquire, any capital stock, rights,
warrants, options or other securities from the Company.
(ix) Except as described in the Registration Statement and
the Prospectus, each Selling Stockholder does not possess any registration
rights with respect to any securities of the Company.
7
(x) Each Selling Stockholder will deliver to Bear Xxxxxxx,
attention: Syndicate Department on or prior to the Additional Closing Date
a properly completed and executed United States Treasury Department Form W-
9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof.)
The Company and the Selling Stockholders acknowledge that each of the
Underwriters and, for purposes of opinions to be delivered to the Underwriters
pursuant to Section 6 hereof, counsel to the Company, counsel to the Selling
Stockholders and counsel to the Underwriters, will rely upon the accuracy and
truth of the foregoing representations and hereby consents to such reliance.
2. Purchase, Sale and Delivery of the Shares.
-----------------------------------------
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $_______, the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Shares shall be made at the office of Xxxxxx & Xxxxxxx,
0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 or at such other place as
shall be agreed upon by you and the Company, at 10:00 A.M. on the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
(unless postponed in accordance with the provisions of Section 9 hereof)
following the date of the effectiveness of the Registration Statement (or, if
the Company has elected to rely upon Rule 430A of the Regulations, the third or
fourth business day (as permitted under Rule 15c6-1 under the Exchange Act)
after the determination of the initial public offering price of the Shares), or
such other time not later than ten business days after such date as shall be
agreed upon by you and the Company (such time and date of payment and delivery
being herein called the "Closing Date"). Payment shall be made to the Company by
wire transfer of same day funds against delivery to you for the respective
accounts of the Underwriters of certificates for the Shares to be purchased by
them. Certificates for the Shares shall be registered in such name or names and
in such authorized denominations as you may request in writing at least two full
business days prior to the Closing Date. The Company will permit you to examine
and package such certificates for delivery at least one full business day prior
to the Closing Date.
(c) In addition, the Company and the Selling Stockholders hereby
grant to the Underwriters the option to purchase up to 1,472,625 and 157,372
Additional Shares, respectively, at the same purchase price per share to be paid
by the Underwriters to the Company
8
for the Firm Shares as set forth in this Section 2, for the sole purpose of
covering over-allotments in the sale of Firm Shares by the Underwriters. This
option may be exercised at any time, in whole or in part, on or before the
thirtieth day following the date of the Prospectus, by written notice by you to
the Company and the Custodian. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised and the date and
time, as reasonably determined by you, when the Additional Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional Closing Date"); provided, however, that the Additional Closing Date
-------- -------
shall not be earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised nor
later than the eighth full business day after the date on which the option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof). Certificates for the Additional Shares
shall be registered in such name or names and in such authorized denominations
as you may request in writing at least two full business days prior to the
Additional Closing Date. The Company and the Selling Stockholders will permit
you to examine and package such certificates for delivery at least one full
business day prior to the Additional Closing Date.
In the event that the over-allotment option is exercised only in part,
the Underwriters shall purchase the first 157,372 Additional Shares from the
Selling Shareholders on a pro rata basis and the number of Additional Shares
sold by each Selling Stockholder to each Underwriter shall be the number which
bears the same proportion to the total number of Additional Shares being sold by
each Selling Stockholder as set forth on Schedule III hereto, as the same number
of Firm Shares set forth opposite the name of such Underwriter in Schedule I
hereto (or such number increased as set forth in Section 9 hereof) bears to the
total number of Firm Shares being purchased from the Company, subject to such
adjustments to eliminate any fractional shares as you in your sole discretion
shall make. Any Additional Shares purchased by the Underwriters pursuant to the
over-allottment option in excess of 157,372 shall be sold by the Company to each
Underwriter in the proportions set forth on Schedule I hereto.
Payment for the Additional Shares shall be made by wire transfer in
same day funds at the offices of Xxxxxx & Xxxxxxx, or such other location as may
be mutually acceptable, upon delivery of the certificates for the Additional
Shares to you for the respective accounts of the Underwriters.
3. Offering.
--------
(a) Upon your authorization of the release of the Firm Shares, the
Underwriters propose to offer the Shares for sale to the public upon the terms
set forth in the Prospectus.
(b) The Company and the Underwriters hereby agree that 535,000 of
the Firm Shares to be purchased by the Underwriters (the "Directed Shares")
shall be reserved for sale by the Underwriters to certain eligible employees,
directors and certain persons designated by the Company (the "Directed Shares
Purchasers"), as part of the distribution of the Shares by the Underwriters
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc., and all
9
other applicable laws, rules and regulations, provided, however, that under no
circumstances will Bear Xxxxxxx or any other underwriter be liable to the
Company or to any of the Directed Shares Purchasers for any action taken or
omitted in good faith in connection with the transactions effected with regard
to the Directed Shares Purchasers. To the extent that such Directed Shares are
not orally confirmed for purchase by such persons by the end of the first day
after the date of this Agreement, such Directed Shares will be offered to the
public as part of the offering contemplated hereby.
4. Covenants of the Company. The Company covenants and agrees with
------------------------
the Underwriters that:
(a) If the Registration Statement has not yet been declared
effective the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to Rule 424(b) or Rule
434 within the prescribed time period and will provide evidence satisfactory to
you of such timely filing. If the Company elects to rely on Rule 434, the
Company will prepare and file a term sheet that complies with the requirements
of Rule 434.
The Company will notify you promptly (and, if requested by you, will
confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any post-
effective amendment thereto or of the initiation, or the threatening, of any
proceedings therefor, (v) of the receipt of any comments from the Commission,
and (vi) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction or
the initiation or threatening of any proceeding for that purpose. If the
Commission shall propose or enter a stop order at any time, the Company will
make every reasonable effort to prevent the issuance of any such stop order and,
if issued, to obtain the lifting of such order as soon as possible. The Company
will not file any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (including the prospectus required to be filed
pursuant to Rule 424(b)or Rule 434) that differs from the prospectus on file at
the time of the effectiveness of the Registration Statement before or after the
effective date of the Registration Statement to which you shall reasonably
object in writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have occurred as a result
of which the Prospectus as then amended or supplemented would, in the judgment
of you or the Company include an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend or
supplement the
10
Prospectus or Registration Statement to comply with the Act or the Regulations,
the Company will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to you)
which will correct such statement or omission and will use its best efforts to
have any amendment to the Registration Statement declared effective as soon as
possible.
(c) The Company will promptly deliver to you three conformed
copies of the Registration Statement, including exhibits and all amendments
thereto, and the Company will promptly deliver to each of the Underwriters such
number of copies of any preliminary prospectus, the Prospectus, the Registration
Statement, and all amendments of and supplements to such documents, if any, as
you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time of effectiveness of the Registration Statement, to
qualify the Shares for offering and sale under the securities laws relating to
the offering or sale of the Shares of such jurisdictions as you may designate
and to maintain such qualification in effect for so long as required for the
distribution thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process.
(e) The Company will make generally available (within the meaning
of Section 11(a) of the Act) to its security holders and to you as soon as
practicable, but not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the effective date of the Registration
Statement occurs, an earning statement (in form complying with the provisions of
Rule 158 of the Regulations), which need not be audited, covering a period of at
least twelve consecutive months beginning after the effective date of the
Registration Statement.
(f) During the period of 180 days from the date of the Prospectus,
the Company will not, without your prior written consent, issue, sell, offer or
agree to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock), , other than the Company's
sale of Shares hereunder and the Company's issuance of Common Stock upon the
exercise of presently outstanding stock options or warrants or the grant by the
Company of additional employee or director stock options pursuant to stock
option plans as in effect on the date hereof and the Company will obtain the
undertaking of each of its officers and directors and such of its shareholders
as have been heretofore designated by you and listed on Schedule II attached
hereto not to engage in any of the aforementioned transactions on their own
behalf, except as permitted by the terms of the lockup agreements agreed to by
you and your counsel.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its shareholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange.
(h) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus.
11
(i) The Company will use its best efforts to cause the Shares to
be listed for inclusion in the National Association of Securities Dealers
Automated Quotation National Market System ("Nasdaq").
5. Payment of Expenses. Whether or not the transactions contemplated
-------------------
in this Agreement are consummated or this Agreement is terminated, as between
the Company and the Selling Stockholders, on the one hand, and the Underwriters
on the other hand, the Company hereby agrees to pay all costs and expenses
incident to the performance of the obligations of the Company and the Selling
Stockholders hereunder, including those in connection with (i) preparing,
printing, duplicating, filing and distributing the Registration Statement, as
originally filed and all amendments thereof (including all exhibits thereto),
any preliminary prospectus, the Prospectus and any amendments or supplements
thereto (including, without limitation, fees and expenses of the Company's
accountants and counsel and separate counsel to the Selling Shareholders, if
any), the underwriting documents (including this Agreement) and all other
documents related to the public offering of the Shares (including those supplied
to the Underwriters in quantities as hereinabove stated), (ii) the issuance,
transfer and delivery of the Shares to the Underwriters, including any transfer
or other taxes payable thereon, (iii) the qualification of the Shares under
state or foreign securities or Blue Sky laws, including the costs of printing
and mailing a preliminary and final "Blue Sky Survey," (iv) the fees of counsel
for the Underwriters in connection with the qualifications of the shares under
state foreign securities of Blue Sky Laws and such counsel's disbursements in
relation thereto, (v) the fees of counsel for the Underwriters in connection
with the matters relating to the Directed Shares which are designated by the
Company for sale to certain employees and directors of and certain persons
designated by the Company and (vi) filing fees of the Commission and the
National Association of Securities Dealers, Inc. The purpose of this Section 5
is to allocate responsibility for expenses arising from the offer and sale of
the Shares between the Company and the Selling Stockholders, on the one hand,
and the Underwriters, on the other hand, and nothing herein shall be deemed to
override, or be in conflict with, any agreement on the allocation of such
expenses as may be made from time to time between the Company and the Selling
Stockholders.
6. Conditions of Underwriters' Obligations. The obligations of the
---------------------------------------
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to the accuracy of the representations and
warranties of the Company and the Selling Stockholders herein contained, as of
the date hereof and as of the Closing Date (for purposes of this Section 6
"Closing Date" shall refer to the Closing Date for the Firm Shares and any
Additional Closing Date, if different, for the Additional Shares), to the
absence from any certificates, opinions, written statements or letters furnished
to you or to Xxxxxx & Xxxxxxx ("Underwriters' Counsel") pursuant to this Section
6 of any misstatement or omission, to the performance by the Company of its
obligations hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than [if pricing pursuant to Rule 430A, 5:30 P.M., New York time, on the
date of this
12
Agreement] [if pricing pursuant to a pricing amendment -- 12:00 P.M., New
York time on the date an amendment to the Registration Statement containing the
public offering price has been filed with the Commission], or at such later time
and date as shall have been consented to in writing by you; if the Company shall
have elected to rely upon Rule 430A or Rule 434 of the Regulations, the
Prospectus shall have been filed with the Commission in a timely fashion in
accordance with Section 4(a) hereof; and, at or prior to the Closing Date no
stop order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereof shall have been issued and no proceedings
therefor shall have been initiated or threatened by the Commission.
(b) At the Closing Date you shall have received the opinion of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, counsel for the Company, dated the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel, to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware. The Company is duly qualified and in good standing as a foreign
corporation in each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, except for those failures to
be so qualified or in good standing which will not in the aggregate have a
material adverse effect on the Company. The Company has all requisite
corporate authority to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus.
(ii) The Company has an authorized capital stock as set forth
in the Registration Statement and the Prospectus. All of the outstanding
shares of Common Stock are duly and validly authorized and issued, are
fully paid and nonassessable and were not issued in violation of or subject
to any preemptive rights created under Delaware General Corporation Law,
the Company's Certificate of Incorporation, its Bylaws, or, to the best of
our knowledge, any other contractual arrangement. The Shares to be
delivered on the Closing Date have been duly and validly authorized and,
when delivered by the Company in accordance with this Agreement, will be
duly and validly issued, fully paid and nonassessable and will not have
been issued in violation of or subject to any preemptive rights. The Common
Stock, the Firm Shares and the Additional Shares conform as to legal
matters to the descriptions thereof contained in the Registration Statement
and the Prospectus.
(iii) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(iv) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby by
the Company do not and will not (A) conflict with or result in a breach of
any of the terms and provisions of, or constitute a default (or an event
which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any
13
lien, charge or encumbrance upon any property or assets of the Company
pursuant to, any agreement or instrument filed as an exhibit to the
Registration Statement (except that such counsel shall express no opinion
with respect to any violation not readily ascertainable from the face of
the agreement or based upon any cross-default provision to the extent
arising out of, or based upon, any covenant of a financial or numerical
nature or requiring computation) or (B) violate or conflict with (1) any
provision of the certificate of incorporation or by-laws of the Company,
or, (2) to the best knowledge of such counsel, any judgment, decree or
order binding on the Company or its properties or assets or, any present
statute, rule or regulation of any governmental agency or authority of the
State of New York or Delaware or the United States applicable to the
Company or any of its respective properties or assets (It being understood
that such counsel shall express no opinion regarding telecommunications law
or regulations.) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental, or regulatory agency or body having jurisdiction over
the Company or any of its respective properties or assets is required for
the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, except for (1) such
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters (as to
which such counsel need express no opinion), (2) such as may be required by
telecommunications law and regulation, and (3) such as have been made or
obtained under the Act.
(v) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, required to register as an
"investment company" under the Investment Company Act of 1940.
(vi) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial data included therein, as to
which no opinion need be rendered) comply as to form in all material
respects with the requirements of the Act and the Regulations.
(vii) The description contained in the section of the
Prospectus entitle, "U.S. Tax Considerations for Non-U.S. Holders" is
complete and correct in all material respects.
(viii) The Registration Statement is effective under the Act,
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule 424(b) of the
Regulations have been made.
(ix) In the course of the preparation by the Company of the
Registration Statement and Prospectus, we participated in conferences with
certain of the officers and representatives of, and the independent public
accountants for, the Company.
14
Between the date of the Registration Statement and the time of delivery of
this letter we participated in additional conferences with certain officers
and representatives of the Company at which the contents of the
Registration Statement and the Prospectus were discussed to a limited
extent. Given the limitations inherent in the independent verification of
factual matters and the character of determinations involved in the
registration process, we are not passing upon and do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus and have made no
independent check or verification thereof. Subject to the foregoing and on
the basis of the information we gained in the course of the performance of
the services referred to above, including information obtained from
officers and representatives of the Company, no facts have come to our
attention that cause us to believe that the Registration Statement, at the
time the Registration Statement became effective, contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date contained any untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Also, subject to the foregoing, no facts have come to our attention in the
course of the proceedings described in the second sentence of this
paragraph that cause us to believe that the Prospectus as of the date and
time of delivery of this letter contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. In each case,
however, we express no view or belief with respect to financial statements,
notes, schedules and other financial data included in, or omitted from the
Registration Statement or Prospectus.
In rendering such opinion, such counsel may (A) state that they
express no opinion as to the laws of any jurisdiction other than the Federal law
of the United States, the New York Commercial Code and the General Corporation
Law of the State of Delaware; and (B) rely as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Company and
certificates or other written statements of officers of departments of various
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel.
(c) At the Closing Date you shall have received the opinion of
Xxxxxxx X. XxXxxxxxxx Senior Vice President, Secretary and General Counsel for
the Company, dated the Closing Date addressed to the Underwriters and in form
and substance satisfactory to Underwriters' Counsel, to the effect there is no
litigation or governmental or other action, suit, proceeding or investigation
before any court or before or by any public, regulatory or governmental agency
or body pending or, to the best knowledge of such General Counsel, threatened
against, or involving the properties or business of, the Company or any of its
subsidiaries, which is of a character required to be disclosed in the
Registration Statement and the Prospectus which has not been properly disclosed
therein and there is not contract or other
15
document which is required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the Registration
Statement which is not described or filed as required.
(d) At the Closing Date you shall have received the opinion of
Xxxxx, Xxxx & Xxxxxx, LLP, regulatory counsel for the Company, dated the Closing
Date addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that such counsel has reviewed the
descriptions in the Registration Statement under the caption "Business--
Regulation" and to the best knowledge of such counsel, such descriptions are
true and correct in all material respects and that , to the best knowledge of
such counsel, the execution, delivery, and performance of this Agreement and the
consummation of the transactions contemplated hereby by the Company do not and
will not violate or conflict with any judgment, decree, order, statute rule or
regulation of any public, governmental or regulatory agency or body having
jurisdiction over telecommunications law or regulation.
(e) You shall have received, with respect to the Selling
Stockholders, at the Closing Date or the Additional Closing Date, if any, as the
case may be, the opinion of [__________], counsel for the Selling Stockholders,
dated the Closing Date or the Additional Closing Date, as the case may be,
addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that:
(i) This Agreement and the Custody Agreement have been duly
and validly authorized, executed and delivered by or on behalf of each
Selling Stockholder and is a valid and binding obligation of each Selling
Stockholder enforceable against such Selling Stockholder in accordance with
its terms except to the extent that (a) the enforceability hereof may be
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium, liquidation,
conservatorship and other laws affecting creditors' rights generally, (b)
equitable principles may limit the availability of equitable relief in the
case of a breach hereof (regardless of whether such remedies are sought in
a proceeding at law or in equity), and (c) federal securities laws may
limit the enforceability of the indemnification provisions hereof.
(ii) To the knowledge of such counsel, each Selling
Stockholder has all requisite power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits of and from all courts and all public,
governmental or regulatory agencies and bodies as are required for the
execution, delivery and performance of this Agreement and the Custody
Agreement and the consummation of the transactions contemplated hereby and
thereby, except for (1) such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters (as to which such counsel need express no
opinion) and (2) such as have been made or obtained under the Act.
(iii) To the knowledge of such counsel, upon the delivery of
and payment for the Shares to be sold by the Selling Stockholders pursuant
to this Agreement as herein contemplated, assuming that the Underwriters
purchase the Additional Shares to
16
be delivered at the Closing for value in good faith and without notice of
any adverse claim as such term is used in Article 8 of the New York Uniform
Commercial Code as currently in effect, the delivery of certificates
representing such Additional Shares either registered in the name of the
Underwriters or effectively endorsed to the Underwriters or in blank will
pass to the Underwriters all rights that the Selling Stockholders had in
such Additional Shares, free and clear of all adverse claims.
(iv) The execution, delivery and performance of this
Agreement and the Custody Agreement by the Selling Stockholders and the
consummation of the transactions contemplated hereby and thereby will not
violate or conflict with, to the knowledge of such counsel, any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over any of
the Selling Stockholders or any of their respective properties or assets.
In rendering such opinion, such counsel may (A) state that they
express no opinion as to the laws of any jurisdiction other than the Federal law
of the United States, the New York Commercial Code and the General Corporation
Law of the State of Delaware; and (B) rely as to matters of fact, to the extent
they deem proper, on certificates of, or certificates of responsible officers
of, the Selling Stockholders, provided, that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel. The opinions of such
counsel for the Selling Stockholders or Principal Selling Stockholders, as the
case may be, shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in their opinion, you and they are justified
in relying thereon.
(f) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to you and to Underwriters' Counsel, and the Underwriters
shall have received from said Underwriters' Counsel a favorable opinion, dated
as of the Closing Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related matters as you
may reasonably require, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(g) At the Closing Date you shall have received a certificate of
the Chief Executive Officer and Chief Financial Officer of the Company, dated
the Closing Date to the effect that (i) the condition set forth in subsection
(a) of this Section 6 has been satisfied, (ii) as of the date hereof and as of
the Closing Date the representations and warranties of the Company set forth in
Section 1 hereof are accurate, (iii) as of the Closing Date the obligations of
the Company to be performed hereunder on or prior thereto have been duly
performed and (iv) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company has not
sustained any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a material adverse change, in the business prospects,
properties, operations, condition (financial or
17
otherwise), or results of operations of the Company and its subsidiaries taken
as a whole, except in each case as described in or contemplated by the
Prospectus.
(h) At the Closing Date you shall have received certificates
executed by each of the Selling Shareholders (or by the Attorneys-in-Fact on
behalf of any such Selling Shareholder), dated the Closing Date to the effect
that (i) if such certificate is executed by the Selling Shareholder, the
representations and warranties of such Selling Shareholder set forth in Section
1 hereof are accurate, and that as of the Closing Date the obligations of such
Selling Shareholder to be performed hereunder on or prior thereto have been duly
performed and (ii) if such certificate is executed by the Attorney-in-Fact, the
best knowledge of the Attorney-in-Fact, the representations and warranties of
such Selling Shareholder set forth in Section 1 hereof are accurate, and that as
of the Closing Date, the obligations of such Selling Shareholder to be performed
hereunder on or prior thereto have been duly performed.
(i) At the time this Agreement is executed and at the Closing
Date, you shall have received a letter, from PricewaterhouseCoopers, LLP,
independent public accountants for the Company, dated, respectively, as of the
date of this Agreement and as of the Closing Date addressed to the Underwriters
and in form and substance satisfactory to you, to the effect that: (i) they are
independent certified public accountants with respect to the Company within the
meaning of the Act and the Regulations and stating that the answer to Item 10 of
the Registration Statement is correct insofar as it relates to them; (ii)
stating that, in their opinion, the financial statements and schedules of the
Company included in the Registration Statement and the Prospectus and covered by
their opinion therein comply as to form in all material respects with the
applicable accounting requirements of the Act and the applicable published rules
and regulations of the Commission thereunder; (iii) on the basis of procedures
consisting of a reading of the latest available unaudited interim consolidated
financial statements of the Company, a reading of the minutes of meetings and
consents of the shareholders and boards of directors of the Company and the
committees of its board subsequent to December 31, 1998, inquiries of officers
and other employees of the Company who have responsibility for financial and
accounting matters of the Company with respect to transactions and events
subsequent to December 31, 1998 and other specified procedures and inquiries to
a date not more than five days prior to the date of such letter, nothing has
come to their attention that would cause them to believe that: (A) the unaudited
consolidated financial statements and schedules of the Company presented in the
Registration Statement and the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the Act and, if
applicable, the Exchange Act and the applicable published rules and regulations
of the Commission thereunder or that such unaudited consolidated financial
statements are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with that of
the audited consolidated financial statements included in the Registration
Statement and the Prospectus; (B) with respect to the period subsequent to June
30, 1999 there were, as of the date of the most recent available monthly
consolidated financial statements of the Company and its subsidiaries, if any,
and as of a specified date not more than five days prior to the date of such
letter, any changes in the capital stock or long-term indebtedness of the
Company or any decrease in the net current assets or stockholders' equity of the
Company, in each case as compared with the amounts shown in the most recent
balance sheet presented in the Registration
18
Statement and the Prospectus, except for changes or decreases which the
Registration Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter or (C) that during the period from March 31,
1999 to the date of the most recent available monthly consolidated financial
statements of the Company, if any, and to a specified date not more than five
days prior to the date of such letter, there was any decrease, as compared with
the corresponding period in the prior fiscal year, in total revenues, or total
or per share net income, except for decreases which the Registration Statement
and the Prospectus disclose have occurred or may occur or which are set forth in
such letter; and (iv) stating that they have compared specific dollar amounts,
numbers of shares, percentages of revenues and earnings, and other financial
information pertaining to the Company set forth in the Registration Statement
and the Prospectus, which have been specified by you prior to the date of this
Agreement, to the extent that such amounts, numbers, percentages, and
information may be derived from the general accounting and financial records of
the Company or from schedules furnished by the Company, and excluding any
questions requiring an interpretation by legal counsel, with the results
obtained from the application of specified readings, inquiries, and other
appropriate procedures specified by you set forth in such letter, and found them
to be in agreement.
(j) Prior to the Closing Date and the Additional Closing Date, if
any, as the case may be, the Company and the Selling Stockholders, as the case
may be, shall have furnished to you such further information, certificates and
documents as you may reasonably request.
(k) Prior to the Closing Date the Company and the Selling
Stockholders shall have furnished to you such further information, certificates
and documents as you may reasonably request.
(l) You shall have received from each person who is a director or
officer of the Company or such shareholder as have been heretofore designated by
you and listed on Schedule II hereto an agreement to the effect that such person
will not, directly or indirectly, without your prior written consent, offer,
sell, offer or agree to sell, grant any option to purchase or otherwise dispose
(or announce any offer, sale, grant of an option to purchase or other
disposition) of any shares of Common Stock (or any securities convertible into,
exercisable for or exchangeable or exercisable for shares of Common Stock) for a
period of 180 days after the date of the Prospectus except as permitted by the
terms of the lockup agreements agreed to by you and your counsel.
(m) At the Closing Date, the Shares shall have been approved for
quotation on the Nasdaq.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
canceled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional
19
Shares may be canceled by you at, or at any time prior to, the Additional
Closing Date. Notice of such cancellation shall be given to the Company in
writing, or by telephone, telex or telegraph, confirmed in writing.
7. Indemnification.
---------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Shares, as originally filed or any amendment thereof, or any
related preliminary prospectus or the Prospectus, or in any supplement thereto
or amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) (A) the
violation of any applicable securities laws or regulations of Mexico, to the
extent not arising from gross negligence, willful misconduct, or fraud on the
part of the Underwriters or their agents and (B) any untrue statement or alleged
untrue statement of a material fact included in the supplement or prospectus
wrapper material distributed in connection with the reservation and sale of the
Directed Shares to eligible employees and certain persons designated by the
Company or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, when considered in conjunction with
the Prospectus of preliminary prospectus, not misleading; provided, however,
-------- -------
that the Company will not be liable in any such case to the extent but only to
the extent that any such loss, liability, claim, damage or expense 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 you expressly for use therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have
including under this Agreement.
(b) Each Selling Stockholder agrees to indemnify and hold harmless
each Underwriter, its directors, officers 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 to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only to the extent that any losses, liabilities, claims,
damages and expenses arise out of or relate to information relating to such
Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement, the Prospectus and
any Preliminary Prospectus. Notwithstanding the foregoing, the aggregate
liability of each Selling Stockholder pursuant to the provisions of this
paragraph shall be limited to an amount equal to the total
20
proceeds (before deducting the underwriting discount and expenses) received by
such Selling Stockholder from the sale of its Shares hereunder.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company who shall have signed the Registration
Statement, and each other person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any amendment thereof 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 any such loss,
liability, claim, damage or expense 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 you
expressly for use therein; provided, however, that in no case shall any
-----------------
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Company and
you acknowledge that the statements set forth in the last paragraph of the cover
page and in the thirteen paragraphs under the caption "Underwriting" in the
Prospectus constitute the only information furnished in writing by or on behalf
of any Underwriter expressly for use in the registration statement relating to
the Shares as originally filed or in any amendment thereof, any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(d) In connection with the offer and sale of Directed Shares the
Company agrees, promptly upon written notice, to indemnify and hold harmless the
Underwriters from and against any and all losses, liabilities, claims, damages
and expenses incurred by them as a result of the failure of any Directed Shares
Purchaser to pay for and accept delivery of the Directed Shares.
(e) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7). In case any such action is
brought against any
21
indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
-------- -------
8. Contribution. In order to provide for contribution in
------------
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Selling Shareholders (the "Sellers"), on the one hand, and each Underwriter,
on the other hand, severally and not jointly, shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Sellers any contribution received by the Sellers from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers of the Company who signed the Registration
Statement and directors of the Company) as incurred to which the Sellers and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Sellers, on the one
hand, and such Underwriter, on the other hand, from the offering of the Shares
or, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Sellers, on the one hand, and each Underwriter, on the other, in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Sellers, on the one hand, and each
Underwriter, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and (y) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page
22
of the Prospectus. The relative fault of the Sellers, on the one hand, and each
Underwriter, on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Sellers or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Sellers and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 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. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, (ii) in no case shall any of
the Selling Stockholders be liable or responsible for any amount that exceeds
that person's proceeds from the sale in the offering at the initial price to the
public (as set forth in the table on the cover page of the Prospectus) of the
Additional Shares sold by that Selling Stockholder pursuant to this Agreement,
and (iii) 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. Notwithstanding the
provisions of this Section 8 and the preceding sentence, 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 that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Section 8, (A)
each person, if any, who controls an Underwriter within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act and (B) the respective
officers, directors, partners, employees, representatives and agents of each of
the Underwriters shall have the same rights to contribution as such Underwriter,
and (A) each person, if any, who controls the Seller within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and (B) the
respective officers, directors, partners, employees, representatives and agents
of each of the shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Section 8. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise. No party shall be liable for contribution with respect
to any action or claim settled without its consent; provided, however, that such
-------- -------
consent was not unreasonably withheld.
9. Default by an Underwriter.
-------------------------
(a) If any Underwriter or Underwriters shall default in its or
their obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by you pursuant to
subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares
or Additional Shares, to which the default relates shall be
23
purchased by the non-defaulting Underwriters in proportion to the respective
proportions which the numbers of Firm Shares set forth opposite their respective
names in Schedule I hereto bear to the aggregate number of Firm Shares set forth
opposite the names of the non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of
the Firm Shares or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including any
non-defaulting Underwriter or Underwriters who so agree) to purchase such Firm
Shares or Additional Shares, as the case may be, to which such default relates
on the terms contained herein. In the event that within 5 calendar days after
such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company with respect thereto (except in each case
as provided in Section 5, 7(a) and 8 hereof) or the Underwriters, but nothing in
this Agreement shall relieve a defaulting Underwriter or Underwriters of its or
their liability, if any, to the other Underwriters and the Company for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you or the Company shall have the right to postpone the Closing Date or
Additional Closing Date, as the case may be for a period, not exceeding five
business days, in order to effect whatever changes may thereby be made necessary
in the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in the opinion
of Underwriters' Counsel, may thereby be made necessary or advisable. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Additional Shares.
10. Survival of Representations and Agreements. All representations
------------------------------------------
and warranties, covenants and agreements of the Underwriters the Selling
Stockholders and the Company contained in this Agreement, including the
agreements contained in Section 5, the indemnity agreements contained in Section
7 and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person thereof or by or on behalf
of the Company, any of its officers and directors or any Selling Stockholder or
any controlling person thereof, and shall survive delivery of and payment for
the Shares to and by the Underwriters. The representations contained in Section
1 and the agreements contained in Sections 5, 7, 8 and 11(d) hereof shall
survive the termination of this Agreement, including termination pursuant to
Section 9 or 11 hereof.
24
11. Effective Date of Agreement; Termination.
----------------------------------------
(a) This Agreement shall become effective, upon the later of when
(i) you and the Company shall have received notification of the effectiveness of
the Registration Statement or (ii) the execution of this Agreement. If either
the initial public offering price or the purchase price per Share has not been
agreed upon prior to 5:00 P.M., New York time, on the fifth full business day
after the Registration Statement shall have become effective, this Agreement
shall thereupon terminate without liability to the Company, the Selling
Stockholders or the Underwriters except as herein expressly provided. Until this
Agreement becomes effective as aforesaid, it may be terminated by the Company by
notifying you and the Selling Shareholders or the Attorney-in-Fact or by you
notifying the Company and the Selling Stockholders or the Attorney-in-fact.
Notwithstanding the foregoing, the provisions of this Section 11 and of Sections
1, 5, 7 and 8 hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be, if (A) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or securities
in general; or (B) if trading on the New York or American Stock Exchanges or
Nasdaq shall have been suspended, or minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities shall have been
required, on the New York or American Stock Exchanges by the New York or
American Stock Exchanges, on Nasdaq by Nasdaq or by order of the Commission or
any other governmental authority having jurisdiction; or (C) if a banking
moratorium has been declared by a state or federal authority or if any new
restriction materially adversely affecting the distribution of the Firm Shares
or the Additional Shares, as the case may be, shall have become effective; or
(D) (i) if the United States becomes engaged in hostilities or there is an
escalation of hostilities involving the United States or there is a declaration
of a national emergency or war by the United States or (ii) if there shall have
been such change in political, financial or economic conditions if the effect of
any such event in (i) or (ii) as in your judgment makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
or the Additional Shares, as the case may be, on the terms contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all out-
of-pocket expenses (including the fees and expenses of their counsel), incurred
by the Underwriters in connection herewith.
25
12. Notices. All communications hereunder, except as may be
-------
otherwise specifically provided herein, shall be in writing and , if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and confirmed
in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, Attention: Xxxxxx Xxxxxxx; if sent to the Company, shall
be mailed, delivered, or telegraphed and confirmed in writing to the Company,
0000 Xxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx, 00000 Attention: Xxxxxxx X.
XxXxxxxxxx, Xx., Senior Vice President and General Counsel with a copy to Xxxxx,
Xxxxx, Xxxxxx Xxxxxxx & Xxxxxxxx, Attention: Xxxxxx X. Xxxxxx.
13. Parties. This Agreement shall insure solely to the benefit of,
-------
and shall be binding upon, the Underwriters, the Selling Stockholders and the
Company and the controlling persons, directors, officers, employees and agents
referred to in Section 7 and 8, and their respective successors and assigns, and
no other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained. The term "successors and assigns" shall not include
a purchaser, in its capacity as such, of Shares from any of the Underwriters.
14. Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York, but without regard to
principles of conflicts of law.
15. Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be an original and all of which together shall constitute
one and the same instrument.
26
If the foregoing correctly sets forth the understanding between you
and the Company, please so indicate in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among us.
Very truly yours,
SPLITROCK SERVICES, INC.
By:
---------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE III HERETO
By:
---------------------------------------------
Name:
------------------------------------------
Attorney-in-Fact
Accepted as of the date first above written.
BEAR, XXXXXXX & CO. INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
PRUDENTIAL SECURITIES INCORPORATED
On behalf of themselves and the other Underwriters
named in schedule I hereto
By: BEAR, XXXXXXX & CO. INC.
By:
------------------------------------------
Name:
------------------------------------
Managing Director
27
SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Bear, Xxxxxxx & Co. Inc.
Credit Suisse First Boston Corporation
Prudential Securities Incorporated
Total..........................
=====================
28
SCHEDULE II
Xxxx Xx
Xxxxxx Xx
Linsang Partners, L.L.C.
Xxxxxxx Xxxxxx
Carso Global Telecom, S.A. de C.V.
Xxxxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. XxXxxxxxxx, Xx.
Xxxx Xxxxxxx
Xxx Xxxxxxx
Xxxxx XxXxxx
Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx
29
SCHEDULE III*
Number of Additional
Name of Selling Stockholder Shares to be Sold
---------------------------- --------------------
Xxxxxxx X. Xxxxxx 100,000
Xxxxxxx X. XxXxxxxxxx, Xx. 25,000
Xxxxxxx X. Xxxxxx 2,815
Xxxxx X. Xxxx 5,630
Xxxxxxx X. Xxxxx 5,630
Xxxxx X. Xxxxxxxxx 5,630
Xxxx X. Xxxxxxxxx 7,037
Xxxxxxxxx X. Xxxxxxxxx 5,630
Total.......... 152,372
=======
* The total number of Additional Shares to be sold by the Company is 1,447,628,
and the total number of Additional Shares to be sold by both the Company and the
Selling Stockholders is 1,605,000.
30
EXHIBIT A
SPLITROCK SERVICES, INC.
POWER OF ATTORNEY
WHEREAS, the Undersigned (the "Undersigned") owns Shares of Common
Stock, $.001 par value (the "Common Stock"), of Splitrock Services, Inc., a
Delaware corporation (the "Company"); and
WHEREAS, the Undersigned, subject to the terms and conditions stated
herein, desires to sell the number of Shares of Common Stock in the over
allotment as set forth below the Undersigned's name on the signature page hereof
(the "Shares"); and
WHEREAS, the Undersigned proposes to sell the Shares in the over
allotment to the several Underwriters (the "Underwriters") named in Schedule I
to the Underwriting Agreement to be entered into by and among the Company, the
Undersigned, the other Selling Shareholders named therein and the Underwriters,
substantially in the form attached hereto as Exhibit A with such changes,
including additions, deletions and amendments thereto, as the Attorneys-in-Fact
(as defined below), or either of them, may deem necessary or advisable (the
"Underwriting Agreement");
NOW, THEREFORE, as an inducement to the Underwriters and the Company
to execute the Underwriting Agreement in such form as may be entered into,
executed and delivered by the Attorneys-in-Fact, or either of them, as
hereinafter provided, and in order to secure the performance of the Underwriting
Agreement upon its execution, the Undersigned agrees, for the benefit of the
Underwriters and the Company as follows:
1. Delivery of Certificates; Appointment of Attorneys-in-Fact; Grant
of Authority. The Undersigned is delivering herewith, for deposit with Xxxxxxx
X. XxXxxxxxxx, Xx., in his capacity as Custodian (the "Custodian"), a
certificate or certificates that represent the number of shares of issued and
outstanding Common Stock set below the Undersigned's signature on the signature
page hereof, that are registered in the name of the Undersigned or in the name
of a nominee which holds such certificates for the account of the Undersigned.
The Undersigned hereby makes, constitutes and appoints, irrevocably, subject to
the terms hereof, Xxxxxxx X. Xxxxxx and Xxxxxxx X. XxXxxxxxxx, Xx., and either
of them, as the true and lawful Attorneys-in-Fact (the "Attorneys-in-Fact") of
the Undersigned, each with full power and authority, for and in the name, place
and stead of the Undersigned:
(a) To negotiate and agree with the Underwriters on the per share
price at which the Shares are to be sold by the Undersigned to the Underwriters,
which purchase price shall be the same price per share to be paid by the
Underwriters to the other Selling Shareholders and to sell up to such number of
Shares at such price as shall be determined by the Attorney-in-Fact
31
executing the Underwriting Agreement, acting in his sole discretion, it being
understood and agreed that:
(i) not more than the aggregate number of Shares set forth below
the Undersigned's name on the signature page hereof shall be sold by the
Undersigned to the Underwriters pursuant to the Underwriting Agreement; and
(ii) The reoccurring of the Shares by the Underwriters shall be
by a public offering registered under the Securities Act of 1933, as amended
(the "Act").
(b) To make the representations and warranties and enter into the
Agreements on behalf of the Undersigned contained in the Underwriting Agreement,
to execute and deliver the Underwriting Agreement on behalf of the Undersigned
with full power to make such changes including additions, deletions and
amendments thereto as the Attorneys-in-Fact, or either of them, shall deem
necessary or advisable, in his sole discretion, and to consummate the
transactions contemplated thereby.
(c) To arrange for, prepare or cause to be prepared a Registration
Statement, and all amendments thereto, under the act covering the offering and
sale of the Shares by the Undersigned and the other Selling Shareholders
(collectively, the "Registration Statement"), and to take all necessary action
with respect to such Registration Statement as the Attorneys-in-Fact, or either
of them, shall deem necessary or advisable, in his sole discretion, subject,
however, to the Undersigned's rights under the Underwriting Agreement.
(d) To take any and all steps that the Attorney-in-Fact, shall deem
necessary or advisable, in his sole discretion, in connection with the
registration of the Shares under the Act and under the securities or Blue Sky
laws of any jurisdiction, including the preparation of the Registration
Statement, the making of any undertakings or representations (but only to the
extent contained in or consistent with the representations of the Selling
Shareholders set forth in the Underwriting Agreement), the execution and filing
of letters and other communications to the Securities and Exchange Commission
(the "Commission") regarding the Registration Statement and the performance of
any such other acts as the Attorneys- in-Fact, shall deem necessary or
advisable, in their sole discretion. To the extent such actions, letters and
communications relate to the Undersigned, they will be based upon written
information furnished and provided by or on behalf of the Undersigned, provided
that the Attorneys-in-Fact, or either or them, reasonably believes that such
information is true and correct.
(e) To execute, acknowledge and deliver the Custody Agreement,
substantially in the form attached hereto as Exhibit B (the "Custody
Agreement"), with full power to make such changes, including additions,
deletions and amendments thereto, as the Attorneys-in-Fact, or either or them,
shall deem necessary or advisable, in his sole discretion, pursuant to which the
certificates representing the Undersigned's Shares will be held by the Custodian
for sale as contemplated by the Underwriting Agreement, to deliver the
certificate or certificates representing the Shares to the Custodian, to
instruct the Custodian with respect to the
32
number of Shares to be sold, and to consummate the transactions contemplated by
the Custody Agreement.
(f) To do all things and to perform all acts required to be performed
on the part of the Undersigned in connection with the sale by the Undersigned of
the Undersigned's Shares, including, but not limited to, (i) the transfer of the
Shares of the Undersigned on the books of the Company in order to effect their
sale, (ii) the endorsement and execution and delivery of all stock certificates,
stock powers, certificates, receipts, instructions to transfer agents and
registrars, and any other document and paper required, contemplated by, or
deemed necessary or advisable by the Attorneys-in-Fact, or either or them,, in
their sole discretion, in connection with, the performance of the Underwriting
Agreement, the Custody Agreement, the registration of the Shares pursuant to the
act, and the exemption, qualification or registration of the Shares under the
securities or Blue Sky laws of any state or jurisdiction, (iii) the
authorization for payment by the Custodian out of the net proceeds of any sale
to the Underwriters, or the withholding by Bear, Xxxxxxx & Co. Inc. Credit
Suisse First Boston Corporation and Prudential Securities Incorporated as
representatives of the Underwriters (the "Representatives") from such proceeds,
of the Undersigned's necessary transfer taxes in connection with the sale and
delivery to the Underwriters of the Shares sold by the Undersigned, (iv) the
retention of one legal counsel in connection with all matters referred to herein
(which counsel may, but need not be, counsel for the Company), (v) the return to
the Undersigned of certificates representing the number of Shares (if any)
received by the Custodian but not sold by the Undersigned to the Underwriters,
(vi) instructing the Custodian as to the number of Shares to be sold by the
Undersigned and (vii) to otherwise act for, in the name of and on behalf of the
Undersigned with respect to the transactions described in the Underwriting
Agreement and the Custody Agreement, as fully as the Undersigned could if then
personally present and acting.
The Undersigned recognizes that the number of Shares that the
Underwriters will purchase from the Selling Shareholders (the "Underwritten
Shares") may be less than the number of Shares desired to be sold by any or all
Selling Shareholders. In the event the number of underwritten Shares is less
than the aggregate number of Shares desired to be sold by any or all Selling
Shareholders, the Attorneys-in-Fact, or either or them,, is authorized and
directed to determine that portion of the Shares that the Undersigned is
entitled to sell, if any, on a pro rata basis among each of the other Selling
Shareholders and any such determination by the Attorneys-in-Fact, or either or
them,, shall be final and binding upon the undersigned.
The Attorneys-in-Fact, or either or them, shall be entitled to act and
rely upon any statement, notice or instruction received by the Undersigned in
writing or by facsimile transmission.
2. Irrevocability. All authority conferred hereby shall be deemed
granted and conferred in contemplation and furtherance of the interests of the
Underwriters and the Company, and this Power of Attorney is irrevocable and is
coupled with an interest, subject to the provisions of Section 4 hereof. The
obligations and authorizations of the Undersigned hereunder shall not be
terminated by operation of law or the occurrence of any event whatsoever,
including, but not limited to, the merger, consolidation, reorganization,
liquidation, dissolution,
33
bankruptcy, insolvency, death or incapacity of the Undersigned or the occurrence
of any other similar event; and if, after the execution of this Power of
Attorney and before the completion of the transactions contemplated by the
Underwriting Agreement, the Undersigned merges, consolidates, liquidates,
reorganizes, enters bankruptcy, becomes insolvent, dissolves, dies or becomes
incapacitated or any other similar event occurs, the Attorneys-in-Fact, and each
of them, are nevertheless authorized and directed to complete all such
transactions, including the delivery of the certificates for the Shares to be
sold to the Underwriters, as if such merger, consolidation, reorganization,
liquidation, dissolution, bankruptcy, insolvency, death, incapacity or other
similar event had not occurred, regardless of whether or not the Attorneys-in-
Fact shall have received notice thereof.
3. Representations and warranties.
(a) The Undersigned represents and warrants to the Attorneys-in-Fact,
to the Company, to each of the Underwriters and to legal counsel for the Company
and the Undersigned, that:
(i) the Undersigned has, and at and as of the date the
Underwriting Agreement is executed and at the Closing Date and any Additional
Closing Date (each as defined in the Underwriting Agreement) will have, full
right, power and authority and all authorizations and approvals required by law
or otherwise to enter into this Power of Attorney, the Custody Agreement and
Underwriting Agreement, and
(ii) the consummation of the transactions contemplated hereby
and thereby and the fulfillment of the terms hereof and thereof will not
conflict with or constitute a breach of, or default under, any bond, debenture,
note or any other evidence of indebtedness or in any indenture or other material
Agreement to which the Undersigned is a party or by which it is bound or to
which any of its properties is subject, or any law, statute, rule, regulation,
judgment or court decree applicable to the Undersigned.
(b) The Undersigned hereby represents and warrants to the Attorneys-
in-Fact, the Company, the Underwriters and to legal counsel for the Company and
the Undersigned, that the Undersigned has carefully reviewed the
representations, warranties, statements and Agreements to be made by the
Undersigned as a Selling Shareholder pursuant to the Underwriting Agreement,
including, without limitation, those contained in Section 1.B of the
Underwriting Agreement and the indemnity and contribution Agreements contained
in Sections 7 and 8 of the Underwriting Agreement (and such representations and
warranties are incorporated herein by reference), and hereby certifies,
represents and warrants to the Attorney-in-Facts, the Company, each of the
Underwriters and to legal counsel for the Company and the Undersigned, that the
representations and warranties to be made by the Undersigned in Section 1.B of
the Underwriting Agreement are true and correct on the date hereof and will be
true and correct at and as of the date such Underwriting Agreement is executed
and at and as of the Closing Date and any Additional Closing Date, and that such
Agreements, insofar as they relate to the Undersigned, have been complied with
as of the date hereof and will be complied with on and after the Closing Date
and any Additional Closing Date.
34
(c) For purposes of delivering any certificate on behalf of the
Undersigned which may be required pursuant to the Underwriting Agreement or by
counsel to the Company and the Undersigned, the Attorneys-in-Fact may rely on
the representations and warranties of the Undersigned set forth herein and in
the Underwriting Agreement as if said representations and warranties had been
set forth in a separate certificate directed to the Attorneys-in-Fact at and as
of the Closing Date or any Additional Closing Date, provided the Attorneys-in-
Fact are not in receipt of written notice from or on behalf of the Undersigned
or otherwise do not reasonably believe that any such representation or warranty
is not true and correct at and as of the Closing Date or any Additional Closing
Date.
(d) The Undersigned will immediately notify the Company, the
Attorneys-in-Fact, each of the Underwriters and legal counsel for the Company
and the Undersigned of the occurrence of any event which shall cause the
representations and warranties set forth herein or incorporated herein by
reference not to be true and correct during the period of the public offering of
the Shares or at any time of delivery of the Shares pursuant to the Underwriting
Agreement.
(e) All of the information heretofore, now or hereafter furnished by
the Undersigned to the Company, each of the Attorneys-in-Fact, each of the
Underwriters and legal counsel for the Company and the Undersigned in connection
with the offering and sale of the Shares is accurate and complete. The maximum
number of Shares of common stock to be sold by the Undersigned to the
Underwriters is accurately stated below the Undersigned's name on the signature
page hereof.
(f) If the Undersigned has a spouse, such spouse has joined in the
execution and delivery of this Power of Attorney for all purposes, and all
references to "the Undersigned" shall mean both the Selling Shareholder who is a
signatory to this Power of Attorney and to such spouse just as if such spouse
were also a Selling Shareholder. The joinder of such spouse, however, has been
made without regard to the ownership of the Shares to which this Power of
Attorney relates.
(g) If the Undersigned is a trust and the Shares held by such trust
are held by a nominee which holds such Shares for the account of the
Undersigned, such nominee has joined in the execution and delivery of this Power
of Attorney for all purposes and all references to "the Undersigned" shall mean
both the Undersigned and the nominee which holds the Shares for the account of
the Undersigned as if both the Undersigned and the nominee which holds the
Shares for the account of the Undersigned were Selling Shareholders.
(h) The Undersigned has received a copy of Amendment No. 1 to the
Registration Statement filed by the Company with the Commission on July 6, 1999.
The information relating to the Undersigned set forth under the captions
Principal Stockholders commencing on page 61 of the preliminary prospectus
forming a part of the Registration Statement, is true and correct in all
respects.
35
4. Expenses. In addition to the expenses, if any, to be paid by the
Undersigned as set forth in the Underwriting Agreement, the Undersigned shall
pay all reasonable out-of-pocket costs and expenses incurred by the Attorneys-
in-Fact in the discharge of their responsibilities hereunder, provided that the
Attorneys-in-Fact shall serve without compensation.
5. Termination. If the Underwriting Agreement shall not be entered
into on behalf of the Undersigned, or if it shall not become effective pursuant
to its terms, or if it shall be terminated pursuant to its terms, or if the
Closing Date shall not have occurred on or before [___________, 1999], or if no
Additional Closing Date shall occur before [__________, 1999], then after such
date the Undersigned shall have the power, on written notice to the Attorneys-
in-Fact, to terminate this Power of Attorney, subject, however, (i) to any
action to be taken pursuant to the Custody Agreement and (ii) to all lawful
action of the Attorneys-in-Fact done or performed pursuant hereto prior to
actual receipt of such notice, and thereafter the Attorneys-in-Fact shall have
no further responsibilities or liabilities to the Undersigned.
6. Ownership of Stock. Subject to the terms of the Custody
Agreement, until payment of the purchase price for the Shares being sold by the
Undersigned pursuant to the Underwriting Agreement has been made by or for the
account of the Underwriters, the Undersigned shall remain the legal and
beneficial owner of the Shares deposited with the Custodian pursuant to the
Custody Agreement and shall have the right to vote such Shares and to receive
all dividends and distributions thereon. However, until such payment in full
has been made or until the Underwriting Agreement has been terminated, the
Undersigned agrees not to give, sell, pledge, hypothecate, grant any lien on or
security interest in, transfer, deal with or contract with respect to the Shares
to be sold by the Undersigned pursuant to the Underwriting Agreement or any
interest therein, except in accordance with the Underwriting Agreement, or as
otherwise agreed in writing by the Underwriters.
7. Indemnification. The Undersigned hereby agrees to indemnify and
hold harmless the attorneys-in- fact against any and all expenses, losses,
claims, damages or liabilities, joint or several, to which the attorneys-in-
fact may become subject insofar as such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
action taken or omitted to be taken by the Attorneys-in-Fact pursuant hereto,
other than those expenses, losses, claims, damages or liabilities which result
from the negligence or bad faith of the Attorneys-in-Fact. The Attorneys-in-
Fact assume no responsibility or liability to any person other than in the
discharge of their responsibilities hereunder.
8. Power of Substitution. Each of the Attorneys-in-Fact is hereby
granted and shall have full power of substitution hereunder. Such substitution
shall be effected by notice thereof to the Undersigned, signed by the Attorney-
in-Fact who is being substituted for as well as by his successor Attorney-in-
Fact.
9. Governing law. This Power of Attorney for all purposes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
36
10. Notice. Any notice required to be given pursuant to this Power
of Attorney shall be deemed given if in writing and delivered in person, or if
given by telephone or facsimile if subsequently confirmed in writing, (i) to the
Attorneys-in-Fact, 0000 Xxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, Xxxxx 00000, Attention:
Xxxxxxx X. Xxxxxx or Xxxxxxx X. XxXxxxxxxx, Xx. (facsimile no.: (____) ______-
____), or (ii) to the Undersigned at the address or facsimile number set forth
on the signature page hereof. Each of the Attorneys-in-Fact agree to forward
copies of any and all notices received by him to the Undersigned at the address
and facsimile number set forth on the signature page hereof.
37
IN WITNESS WHEREOF, the Undersigned has executed this Power of Attorney
this ___ day of ______________, 199__.
(To be signed exactly as name appears on Certificate(s) representing the Shares)
----------------------------------------
Print name, address and facsimile number:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Number of Shares to be sold:
NOTE: ALL SIGNATURES ON THIS POWER OF ATTORNEY MUST BE GUARANTEED BY A
PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM.
Signature(s) guaranteed by:
-----------------------------------
Name:
38
INDIVIDUAL ACKNOWLEDGMENT
STATE OF ____________)
(ss.):
COUNTY OF ___________)
On this __ day of _______________, 1999, before me personally came
___________________, to me known to be the individual described in and who
executed the foregoing Power of Attorney and acknowledged that he executed the
same.
----------------------------------------
Notary Public
39
If the Selling Shareholder is an individual, check whether married [ ] or not
married [ ]. If married and spouse has not signed above as a Selling
Shareholder because spouse is not a registered owner of the deposited stock
certificates, spouse must consent by signing below and having signature
guaranteed:
Selling Shareholder Spouse
----------------------------------------
Name:
NOTE: ALL SIGNATURES ON THIS POWER OF ATTORNEY MUST BE GUARANTEED BY A
PARTICIPANT IN A RECOGNIZED SIGNATURE GUARANTEE MEDALLION PROGRAM.
Signature(s) guaranteed by:
----------------------------------------
Name:
40
Acceptance by the Attorneys-in-Fact
Xxxxxxx X. Xxxxxx and Xxxxxxx X. XxXxxxxxxx, Xx. each hereby accepts his
appointment as attorney- in-fact pursuant to the foregoing Power of Attorney and
agrees to abide by and act in accordance with the terms of said Agreement.
---------------------------------------
Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. XxXxxxxxxx, Xx.
41
EXHIBIT B TO POWER OF ATTORNEY
SPLITROCK SERVICES, INC.
CUSTODY AGREEMENT
Xxxxxxx X. XxXxxxxxxx, Xx., Esq.
Senior Vice President
0000 Xxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
The Undersigned have delivered to you certificates (the "Certificates") in
negotiable form representing ____________ Shares of the issued and outstanding
common stock, par value $.001 per share (the "Common Stock"), of Splitrock
Services, Inc., a Delaware corporation (the "Company"), together with any
executed stock powers required to transfer such certificates in accordance with
the terms hereof and the Underwriting Agreement (as defined below). The
Certificates are to be held by you as Custodian hereunder for the account of the
Selling Shareholders listed in Exhibit I hereto (collectively, the "Selling
Stockholders") and are to be disposed of in accordance with the following
instructions:
1. The Undersigned has been appointed Attorney-in-Fact ("Attorney-in-
Fact") for each of the Selling Shareholders pursuant to the Power of Attorney
executed by each such Selling Shareholder (collectively, the "Power of
Attorney"), and is authorized, subject to certain terms and conditions set forth
in the Power of Attorney, to execute and deliver on behalf of the Selling
Shareholders an Underwriting Agreement (the "Underwriting Agreement"),
substantially in the form attached hereto as Exhibit II, by and among the
Selling Shareholders, the Company, and the Underwriters named in Schedule I
thereof (the "Underwriters"), pursuant to which for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, the Company and
the Selling Stockholders propose, at the option of the Underwriters, to sell to
the Underwriters up to an additional 1,472,625 and 157,372 shares, respectively,
(the "Additional Shares") of Common Stock at the price set forth in the
Underwriting Agreement. (the "Additional Shares" and, together with the Firm
Shares, the "Shares").
2. You are hereby authorized and directed to hold the Certificates
for the Shares and, subject to the Underwriters having concurrently provided you
with a counterpart of the Underwriting Agreement that has been executed by or on
behalf of the Selling Shareholders and all other parties thereto (i) on the
Closing Date and any Additional Closing Date (each as defined in the
Underwriting Agreement), to cause to be delivered to the Underwriters for their
respective accounts, against payment therefor in full of the purchase price per
Share determined in accordance with and after satisfaction of the terms of the
Underwriting Agreement, one or more certificates (each, an "Omnibus
Certificate") representing the number of Additional Shares to be sold on the
Closing Date or the on any Additional Closing Date, as the case may be; (ii) to
obtain
42
an Omnibus Certificate upon transfer of or in exchange for the certificates
deposited with you hereunder; (iii) to have separate certificates for the
aggregate number of Shares represented by any Omnibus Certificate registered in
such names and denominations as the Underwriters shall have requested at least
two full business days prior to the Closing Date, or any Additional Closing
Date, as the case may be, prepared and available for checking and packaging by
the Underwriters at a location in New York, New York at least one full business
day prior to the Closing Date, or any Additional Closing Date, as the case may
be, for delivery to the Underwriters upon cancellation of such Omnibus
Certificate. You shall not be regarded as making any representations as to the
validity, sufficiency, value or genuineness of any of the Certificates or of any
other documents surrendered to you or as to the validity or genuineness of any
signatures on any letters of transmittal, facsimiles or other documents
delivered to you in connection herewith. You may rely on the instructions of the
Undersigned, or any substitute Attorney-in-Fact under the Power of Attorney,
with respect to any discrepancies in the form of the Certificates or
accompanying documents.
3. You are authorized, for and on behalf of the Selling Shareholders,
to accept and acknowledge receipt from the Underwriters for their respective
accounts of payment for all Shares sold and delivered by the Selling
Shareholders to the respective Underwriters. The payment received by you for
the account of the Selling Shareholders shall, upon order, in accordance with
the instructions, of the Undersigned, be paid by you, in immediately available
funds, to the Selling Shareholders, less such amount, if any, as necessary to
provide for each Selling Shareholder's proportionate share of all expenses, if
any, of the Selling Shareholders as provided in the Underwriting Agreement,
including all necessary transfer taxes in connection with the sale and delivery
to the Underwriters of the Shares sold by the Selling Shareholders, such amount
to be delivered to the Company or as shall be specified by the Undersigned.
4. If the Underwriting Agreement shall not be executed, or shall not
become effective pursuant to its terms, or shall be terminated pursuant to the
provisions thereof, or the Closing Date shall not have occurred on or before
_________, 1999, or if the Additional Shares represented by the certificates
deposited with you hereunder are not taken up and paid for by the respective
Underwriters by __________, 1999 in accordance with the provisions of the
Underwriting Agreement, you are authorized and directed to exchange the Omnibus
Certificate obtained pursuant to paragraph 2 above, if any, for certificates
denominated as necessary to return to the Selling Shareholders Shares equal to
the Shares deposited with you hereunder, and to return to the Selling
Shareholders such certificates together with any stock powers, and you shall
have no further responsibility hereunder. The Undersigned shall notify you
promptly of the execution of the Underwriting Agreement. In addition, you shall
also, as instructed by the Attorney-in-Fact, return to each of the Selling
Shareholders certificates representing the number of Shares of such Selling
Shareholders that are held by you in excess of the number of Shares sold by such
Selling Shareholders pursuant to the Underwriting Agreement.
5. It is understood that until delivery by you of the certificates
deposited with you hereunder has been made in accordance with the Underwriting
Agreement and payment in full for the Shares represented by such certificates
has been made by or for the account of the respective Underwriters, the Selling
Shareholders shall remain the legal and beneficial owners of
43
such Shares and shall have the right to vote such Shares and to receive all
dividends and distributions thereon.
6. Under the terms of the Underwriting Agreement, the Undersigned
agrees that the Shares represented by the certificates held in custody for the
Selling Shareholders under this Custody Agreement are subject to the interest of
the respective Underwriters under the Underwriting Agreement, that the
arrangements made by the Selling Shareholders for such Custodianship are to that
extent irrevocable and that the obligations of the Selling Shareholders under
the Underwriting Agreement shall not be terminated by operation of law or by the
occurrence of any event whatsoever, including, but not limited to, the merger,
consolidation, reorganization, liquidation, dissolution, bankruptcy, insolvency,
death, incapacity or similar event of one or more of the Selling Shareholders.
If one or more of the Selling Shareholders should merge, consolidate,
reorganize, liquidate, dissolve, enter bankruptcy, become insolvent, die or
become incapacitated, or if any other such similar event shall occur before the
termination of this Custody Agreement, you are nevertheless authorized and
directed to deal with the certificates deposited hereunder and with the terms
and conditions hereof as if such merger, consolidation, reorganization,
liquidation, dissolution, bankruptcy, insolvency, death, incapacity or similar
event had not occurred, regardless of whether or not you shall have received
notice of such merger, consolidation, reorganization, liquidation, dissolution,
bankruptcy, insolvency, death, incapacity or similar event.
7. It is understood that you are authorized to accept this Custody
Agreement and to take any and all actions hereunder as you shall, in your
discretion, determine to be necessary to consummate the transactions
contemplated hereby and by the Underwriting Agreement, and that you assume no
responsibility or liability to the Selling Shareholders or to any person other
than to deal with the certificates and the cash held and received by you
pursuant to the terms of this Custody Agreement in accordance with the
provisions hereof, and the Selling Shareholders agree to indemnify and hold you
harmless with respect to anything done by you in good faith in any and all
matters covered by this Custody Agreement in accordance with the foregoing
instructions.
8. In taking any of the actions described herein on behalf of the
Selling Shareholders, you are authorized and shall be entitled to ask for and
act and rely upon instructions, any request made, or notices, information or
assurances of fact given in writing to you by the Undersigned, or any substitute
Attorney-in-Fact appointed under the Power of Attorney; provided, however, that
you shall not be entitled to act on any statement or notice to you with respect
to the noneffectiveness or termination of the Underwriting Agreement, or advice
that the Underwriting Agreement has not been executed and delivered, unless such
statement, notice or advice shall have been confirmed in writing to you by one
of the Representatives.
9. It is agreed that your duties are only such as are herein
specifically provided, being purely ministerial in nature, and that you shall
incur no liability whatever except for liabilities resulting from your actions
taken or omitted to be taken by you in bad faith.
44
10. You shall be under no responsibility in respect of any of the
items deposited with you hereunder other than to follow in good faith the
instructions by the Attorney-in-Fact or otherwise herein contained. You may
consult with counsel (which may be counsel to the Company) and shall be fully
protected in any action taken in good faith, in accordance with such advice.
You shall not be required to defend any legal proceedings which may be
instituted unless requested to do so by the Selling Shareholders and unless you
are indemnified to your satisfaction against the cost and expense of such
defense. You shall not be required to institute legal proceedings of any kind.
You shall have no responsibility for the genuineness or validity of any document
or other item deposited with you hereunder and you shall be fully protected in
acting in accordance with any written instructions given to you hereunder and
believed by you to have been signed by the Undersigned.
11. The Undersigned hereby represents and warrants that the
Undersigned has full right, power and authority to enter into this Custody
Agreement and the Underwriting Agreement on behalf of the Selling Shareholders
to sell, assign, transfer and deliver the Shares deposited hereunder and to be
sold pursuant to the Underwriting Agreement and, upon delivery and payment for
said Shares pursuant to the Underwriting Agreement, unencumbered title to such
Shares shall be acquired by the respective Underwriters.
12. Your acceptance hereof by the execution of this Custody Agreement
shall constitute an acknowledgment by you of receipt of the certificates
hereinbefore referred to and the acceptance by you of the authorizations herein
conferred and shall evidence your Agreement to carry out and perform this
Custody Agreement in accordance with its terms.
13. This Custody Agreement shall for all purposes be governed by and
construed in accordance with the internal laws of the State of New York.
45
IN WITNESS WHEREOF, this Custody Agreement is executed this ___ day of
______________, 1999.
Very truly yours,
SELLING SHAREHOLDERS
[LIST ALL]
By:
------------------------------------
Name:
As Attorney-in-Fact for the Selling Shareholders
AGREED and ACCEPTED as of this
__ day of ___________, 1999 by:
CUSTODIAN
Xxxxxxx X. XxXxxxxxxx, Xx., as Custodian
By: ----------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx, Xx.
46
EXHIBIT I TO CUSTODY AGREEMENT
SELLING SHAREHOLDERS
Name Number of Additional Shares
Available for Sale
47
EXHIBIT II TO CUSTODY AGREEMENT
FORM OF UNDERWRITING AGREEMENT
48
