EXHIBIT 1.2
Metromedia Fiber Network, Inc.
Class A Common Stock
(par value $.01 per share)
Underwriting Agreement
New York, New York
November 12, 1999
SALOMON SMITH BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Certain stockholders of Metromedia Fiber Network, Inc., a Delaware
corporation (the "Company"), named in Schedule I hereto (the "Selling
Stockholders") severally propose to sell to the underwriters named in Schedule
II hereto (the "Underwriters"), for whom Salomon Smith Barney Inc., Credit
Suisse First Boston Corporation, Deutsche Bank Securities Inc., Donaldson,
Lufkin & Jenrette Securities Corporation, Goldman, Sachs & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated (the "Representatives") are acting as
representatives, 4,895,000 shares of Class A Common Stock, par value $.01 per
share, of the Company (the "Underwritten Securities"). The Selling Stockholders
named in Schedule I hereto also propose to grant to the Underwriters an option
to purchase up to 734,250 additional
shares of Common Stock to cover over-allotments (the "Option Securities," and
together with the Underwritten Securities, the "Securities"). To the extent
there are no additional Underwriters listed on Schedule II other than you, the
term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. In addition, to the extent that there is not more than
one Selling Stockholder named in Schedule I, the term Selling Stockholder shall
mean either the singular or plural. The use of the neuter in this Agreement
shall include the feminine and masculine wherever appropriate. Any reference
herein to the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and include
the documents incorporated or deemed to be incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be (the "Incorporated Documents"); and any reference herein to the
terms "amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein by
reference. Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. (i) The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a Registration
Statement (File No. 333-89087) on Form S-3, including a Basic Prospectus,
for registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such Registration Statement, a
final prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such
Registration Statement, an amendment to such Registration Statement
(including the form of final prospectus supplement) or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of clause
(1), the Company has included in such Registration Statement, as amended
at the Effective Date, all information (other than Rule 430A Information)
required by the Act and the rules there under to be included in such
Registration Statement and the Final Prospectus. As filed, such final
prospectus supplement or such amendment and form of
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final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the respective rules thereunder; on the Execution Time, the Registration
Statement, as supplemented by any prospectus supplement filed pursuant to
Rule 424(b), did not or will not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company and the Selling Stockholders make no representations or warranties
as to the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any amendment 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 the
Representatives specifically for inclusion therein, it being understood
and agreed that the only such information is that described as such in
Section 8(b) of this Agreement.
(c) The Incorporated Documents heretofore filed, when they were
filed (or, if any amendment with respect to any such document was filed,
when such amendment was filed), conformed in all material respects with
the requirements of the Exchange Act and the rules and regulations
thereunder, any further Incorporated Documents so filed will, when they
are filed, conform in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder; no such document
when it was filed (or, if an amendment with respect to any such document
was filed, when such
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amendment was filed), contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and no such further document, when it is filed, will contain an untrue
statement of a material fact or will omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(d) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation or limited liability
company in good standing under the laws of the jurisdiction in which it is
chartered or organized with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and conduct its
business as described in the Final Prospectus (as then amended or
supplemented), and is duly qualified to do business as a foreign
corporation or limited liability company and is in good standing under the
laws of each jurisdiction which requires such qualification, except where
the failure to be so qualified would not have, singly or in the aggregate,
a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business.
(e) All the outstanding shares of capital stock of each subsidiary
that is a corporation have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest and,
to the knowledge of the Company, any other security interests, claims,
liens or encumbrances.
(f) The Company's authorized capitalization is as set forth in the
Final Prospectus under the heading "Capitalization".
(g) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not described
or filed as required. The statements in the Final Prospectus under the
headings "Certain United States Federal Income Tax Considerations",
"Business--Regulation," "Business-Franchise, License and Related
Agreements," "Business-Regulation of International Operations,"
"Description of Capital Stock" and "Business--Legal Proceedings" fairly
summarize the matters therein described in all material respects.
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(h) This Agreement has been duly authorized, executed and delivered
by the Company; the Securities have been duly and validly authorized by
the Company; the holders of outstanding shares of capital stock of the
Company are not entitled to preemptive or other rights to subscribe for
the Securities; and, except as set forth in the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligation into or exchange
any securities for, shares of capital stock of or ownership interests in
the Company are outstanding.
(i) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Final Prospectus, will not be, an "investment company"
required to be registered under the Investment Company Act of 1940, as
amended, without taking account of any exemption arising out of the number
of holders of the Company's securities.
(j) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as will be obtained under
the Act in connection with the registration of the Securities, and such as
may be required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Underwriters
in the manner contemplated herein or in the Final Prospectus.
(k) None of the execution and delivery of this Agreement, the sale
of the Securities, nor the consummation of any of the transactions
contemplated herein or the fulfillment of the terms hereof, will conflict
with, result in a breach or violation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries, pursuant to (i) the charter or by-laws of the Company or any
of its subsidiaries; (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its or
their property is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties,
except in the case of clauses (ii) and (iii), as could not be reasonably
expected to have, singly or in the aggregate, a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business.
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(l) The Securities conform as to legal matters to the description
thereof contained in the Final Prospectus.
(m) The consolidated historical financial statements of the Company
and its consolidated subsidiaries included in the Final Prospectus present
fairly in all material respects the financial condition, results of
operations and cash flows of the Company as of the dates and for the
periods indicated and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved (except as otherwise noted therein). The selected
financial data set forth under the caption "Selected Consolidated
Financial Data" in the Final Prospectus fairly present, on the basis
stated in the Final Prospectus, the information included therein.
(n) The pro forma financial statements included in the Final
Prospectus include assumptions that provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments to
the historical financial statement amounts in the pro forma financial
statements included in the Final Prospectus. The pro forma financial
statements included in the Final Prospectus comply as to form in all
material respects with the applicable accounting requirements of
Regulation S-X under the Act and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those
statements.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby; or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any amendment or supplement thereto).
(p) Except as described in the Final Prospectus, each of the Company
and each of its subsidiaries owns, licenses, leases or has obtained
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rights-of-way for all such properties as are necessary to the conduct of
its operations as presently conducted. The Company and each of its
subsidiaries has good and marketable title, free and clear of all liens or
encumbrances, to all property and assets described in the Final Prospectus
as being owned by it on the date hereof and such properties and assets are
in good repair and suitable for use as so described except as set forth in
the Final Prospectus. All leases to which the Company or its subsidiaries
are a party are valid and binding (subject to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance or other
laws affecting creditors' rights generally from time to time in effect and
to general principles of equity) and no default has occurred or is
continuing thereunder which could have, singly or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, and the Company and each subsidiary
enjoy peaceful and undisturbed possession under all such leases to which
any of them is a party as lessee with such exceptions as do not interfere
materially with the use made by the Company or such subsidiary.
(q) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws; (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject; or (iii) any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable, except in the case of clauses (ii)
and (iii) as could not be reasonably expected to have, singly or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(r) Each of (i) Deloitte & Touche LLP, (ii) Ernst & Young LLP, and
(iii) PriceWaterhouseCoopers LLP, each of whom have audited certain
financial statements of the Company and its consolidated subsidiaries or
its acquired entities, as the case may be, and delivered their report with
respect to the audited consolidated financial statements included and/or
incorporated by reference in the Final Prospectus are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder.
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(s) The Company and each subsidiary has filed all foreign, federal,
state and local tax returns that are required to be filed or has requested
extensions thereof except in any case in which the failure so to file
would not have, singly or in the aggregate, a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, and
has paid all taxes required to be paid by it and any other assessment,
fine or penalty levied against it, to the extent that any of the foregoing
is due and payable, except for any such assessment, fine or penalty that
is currently being contested in good faith or as would not have, singly or
in the aggregate, a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(t) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or is threatened or imminent that could
have, singly or in the aggregate, a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business.
(u) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Company or sale by the Company of
the Securities.
(v) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
they are engaged; all policies of insurance and fidelity or surety bonds
insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force
and effect; the Company and its subsidiaries are in compliance with the
terms of such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any such
policy or instrument as to which any insurance company is denying
liability or defending under a reservation of rights clause; neither the
Company nor any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any such subsidiary has
any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be neces-
8
sary to continue its business at a cost that would not have, singly or in
the aggregate, a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(w) Except as described in the Final Prospectus, no subsidiary of
the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company any loans or
advances to such subsidiary from the Company or from transferring any of
such subsidiary's property or assets to the Company or any other
subsidiary of the Company.
(x) Except as described in the Final Prospectus, the Company and its
subsidiaries (i) possess the certificates, authorizations, approvals,
franchises, licenses, rights-of-way and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to
conduct their respective businesses as presently conducted, (ii) are not
in violation of any such certificates, authorizations, approvals,
franchises, licenses, rights-of-way and permits, except where such
violation would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business and (iii) have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization, approval, franchise,
license, right-of-way or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business.
(y) The Company and its subsidiaries possess or have applied for the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by them in connection with the businesses
now operated by them, and neither the Company nor any of the Subsidiaries
has received any notice of infringement of or conflict with asserted
rights of others with respect to the foregoing except as could not have,
singly or in the aggregate, a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or
9
not arising from transactions in the ordinary course of business. To the
Company's knowledge, the use of such Intellectual Property in connection
with the business and operations of the Company and its subsidiaries does
not infringe on the rights of any person.
(z) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(aa) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"); (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses as described in
the Final Prospectus; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal
or release of hazardous or toxic substances or wastes, pollutants or
contaminants, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business; neither the Company nor any of the subsidiaries has
been notified that it has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(bb) Except as described in the Final Prospectus, the Company and
its subsidiaries are implementing a comprehensive, detailed program to
analyze and address the risk that the computer hardware and software used
by them may be unable to recognize and properly execute date-sensitive
functions involving certain dates prior to and any dates after December
31, 1999 (the "Year 2000 Problem"), and reasonably believe that such risk
will be remedied on a timely basis without material expense and will not
have a
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material adverse effect upon the financial condition and results of
operations of the Company and its subsidiaries, taken as a whole.
(cc) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the regulations and published interpretations
thereunder with respect to each "plan" (as defined in Section 3(3) of
ERISA and such regulations and published interpretations) in which
employees of the Company and its subsidiaries are eligible to participate
and each such plan is in compliance in all material respects with the
presently applicable provisions of ERISA and such regulations and
published interpretations; the Company and its subsidiaries have not
incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any
such plan under Title IV of ERISA.
(dd) The subsidiaries listed on Schedule III attached hereto are the
only significant subsidiaries of the Company as defined in Rule 1-02 of
Regulation S-X (individually, a "Subsidiary" and collectively, the
"Subsidiaries").
(ee) None of the transactions contemplated by this Agreement will
violate or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve
System.
(ff) Neither the Company nor any of the subsidiaries is a "holding
company" or a "subsidiary company" of a holding company, or an "affiliate"
thereof required to be registered under the Public Utility Holding Company
Act of 1935, as amended.
(gg) Neither the Company nor any of its subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any
subsidiary has made any payment of funds of the Company or any subsidiary
or received or retained any funds in violation of any provision of the
Foreign Corrupt Practices Act of 1977, as amended.
(hh) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has
indicated to the Company that it is considering (i) the downgrading,
suspension or withdrawal of, or any review for a possible change that does
not indicate the direction of the possible change in, any rating assigned
to the
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Company or any securities of the Company or (ii) any change in the outlook
for any rating of the Company or any securities of the Company.
(ii) No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of
its subsidiaries on the other hand, which is required by the Act to be
described in the Final Prospectus which is not so described.
(jj) The Company has not taken, directly or indirectly, any action
designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(kk) Except as may have been waived, no holders of securities of the
Company have rights to the registration of such securities under the
Registration Statement.
(ll) The securities being sold by the Selling Stockholders are duly
listed, and admitted and authorized for trading, on the NASDAQ National
Market.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, each Underwriter that:
(a) Such Selling Stockholder is, or prior to the Closing will be,
the record and beneficial owner of the Securities to be sold by it
hereunder free and clear of all liens, encumbrances, equities and claims
and has duly indorsed such Securities in blank, and, assuming that each
Underwriter acquires its interest in the Securities it has purchased from
such Selling Stockholder in good faith without notice of any adverse claim
(within the meaning of Section 8-105 of the New York Uniform Commercial
Code ("UCC")), each Underwriter that has purchased such Securities
delivered on the Closing Date to The Depository Trust Company or other
securities intermediary (assuming such are securities intermediaries
within the meaning of Section 8-102(14) of the UCC) by making payment
therefor as provided herein, and that has had such Securities credited by
book entry to the securi-
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ties account or accounts (within the meaning of Section 8-501(a) of the
UCC) of such Underwriter maintained by The Depository Trust Company or
such other securities intermediary will have acquired a security
entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to
such Securities purchased by such Underwriter, and no action based on an
adverse claim (within the meaning of Section 8-102(a)(1) and Section 8-502
of the UCC) may be asserted against such Underwriter with respect to such
Securities.
(b) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(c) Certificates in negotiable form for such Selling Stockholder's
Securities have been or, prior to the Closing, will be placed in custody
(which deposit may occur on the books of the Company's transfer agent
without physical delivery of a certificate), for delivery pursuant to the
terms of this Agreement, under a Custody Agreement and Power of Attorney
duly authorized (if applicable) executed and delivered by such Selling
Stockholder, in the form heretofore furnished to you (the "Custody
Agreement") with ChaseMellon Shareholder Services, L.L.C., as Custodian
(the "Custodian"); the Securities represented by the certificates so held
in custody for each Selling Stockholder are subject to the interests
hereunder of the Underwriters; the arrangements for custody and delivery
of such certificates, made by such Selling Stockholder hereunder and under
the Custody Agreement, are not subject to termination by any acts of such
Selling Stockholder, or by operation of law, whether by the death or
incapacity of such Selling Stockholder or the occurrence of any other
event; and if any such death, incapacity or any other such event shall
occur before the delivery of such Securities hereunder, certificates for
the Securities will be delivered by the Custodian in accordance with the
terms and conditions of this Agreement and the Custody Agreement as if
such death, incapacity or other event had not occurred, regardless of
whether or not the Custodian shall have received notice of such death,
incapacity or other event.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except such
as may have been obtained under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals as have been obtained.
13
(e) Neither the sale of the Securities being sold by such Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by such Selling Stockholder or the fulfillment of the terms
hereof by such Selling Stockholder will conflict with, result in a breach
or violation of, or constitute a default under any law or the charter or
by-laws of such Selling Stockholder or the terms of any indenture or other
agreement or instrument to which such Selling Stockholder or any of its
subsidiaries is a party or bound, or any judgment, order or decree
applicable to such Selling Stockholder or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder or any of its
subsidiaries.
(f) Such Selling Stockholder has no reason to believe that the
representations and warranties of the Company contained in this Section 1
are not true and correct, is familiar with the Registration Statement and
has no knowledge of any material fact, condition or information not
disclosed in the Final Prospectus or any supplement thereto which has
adversely affected or may adversely affect the business of the Company or
any of its subsidiaries; and the sale of Securities by such Selling
Stockholder pursuant hereto is not prompted by any information concerning
the Company or any of its subsidiaries which is not set forth in the Final
Prospectus or any supplement thereto.
(g) In respect of any statements in or omissions from the
Registration Statement or the Final Prospectus or any supplements thereto
made in reliance upon and in conformity with information furnished in
writing to the Company by any Selling Stockholder specifically for use in
connection with the preparation thereof, such Selling Stockholder hereby
makes the same representations and warranties to each Underwriter as the
Company makes to such Underwriter under paragraph (i)(b) of this Section.
Any certificate by any Selling Stockholder or any officer of any Selling
Stockholder and delivered to the Representatives or counsel for the Underwriters
in connection with the offering of the Securities shall be deemed a
representation and warranty by such Selling Stockholder, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders
agree, severally and not jointly, to sell to each Underwriter, and each
14
Underwriter agrees, severally and not jointly, to purchase from the
Selling Stockholders, at a purchase price of $37.8575 per share, the
amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Selling Stockholders
named in Schedule I hereby grant an option to the several Underwriters to
purchase, severally and not jointly, up to 734,250 Option Securities at
the same purchase price per share as the Underwriters shall pay for the
Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of the
Final Prospectus upon written or telegraphic notice by the Representatives
to the Company and such Selling Stockholders setting forth the number of
shares of the Option Securities as to which the several Underwriters are
exercising the option and the settlement date. The maximum number of
Option Securities which each Selling Stockholder agrees to sell is set
forth in Schedule I hereto. In the event that the Underwriters exercise
less than their full over-allotment option, the number of Option
Securities to be sold by each Selling Stockholder listed on Schedule I
shall be, as nearly as practicable, in the same proportion as the maximum
number of Option Securities to be sold by each Selling Stockholder and the
number of Option Securities to be sold. The number of Option Securities to
be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion
shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the third Business Day prior to
the Closing Date) shall be made at 9:00 A.M., New York City time, on November
17, 1999, or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement among the Representatives and the Selling
Stockholders or as provided in Section 9 hereof (such date and time of delivery
and payment for the Securities being herein called the "Closing Date"). Delivery
of the Securities shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several Underwriters
through the Representatives of the respective aggregate purchase prices of the
Securities being sold by each of the Selling Stockholders to or upon the order
of the Selling Stockholders by wire transfer
15
payable in same-day funds to the account specified by the Company and the
Selling Stockholders. Delivery of the Underwritten Securities and the Option
Securities shall be made through the facilities of The Depository Trust Company
unless the Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state transfer taxes, if
any, involved in the transfer to the several Underwriters of the Securities to
be purchased by them from such Selling Stockholder and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Selling Stockholders named in
Schedule I hereto will deliver the Option Securities (at the expense of the
Company) to the Representatives, at 388 Greenwich Street, New York, New York, on
the date specified by the Representatives (which shall be within three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Selling Stockholders named in Schedule I by wire transfer payable in same-day
funds to the accounts specified by the Selling Stockholders named in Schedule I
hereto. If settlement for the Option Securities occurs after the Closing Date,
such Selling Stockholders will deliver to the Representatives on the settlement
date for the Option Securities, and the obligation of the Underwriters to
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus. Each of the Underwriters represents and agrees that (i)
it has not offered or sold and will not offer or sell any Securities to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995,
(b) it has complied, and will comply, with all applicable provisions of the
Financial Services Act of 1986 of Great Britain with respect to anything done by
it in relation to the Securities in, from or otherwise involving the United
Kingdom, and (c) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the
issuance of the Securities to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
16
(Exemptions) Order 1996 of Great Britain or is a person to whom the document may
otherwise lawfully be issued or passed on.
5. Agreements.
(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final Prospectus or
any Preliminary Final Prospectus) to the Basic Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement without the prior consent of the Representatives,
which consent shall not be unreasonably withheld, conditioned or delayed.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company will cause
the Final Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. If necessary
for the sale of the Securities, the Company will cause the Rule 462(b)
Registration Statement, completed in compliance with the Act and the
applicable rules and regulations thereunder, to be filed with the
Commission pursuant to Rule 462(b) and will provide evidence satisfactory
to the Representatives of such filing. The Company will promptly advise
the Representatives (1) when the Registration Statement, if not effective
at the Execution Time, shall have become effective, (2) when the Final
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or
17
threatening of any proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof. Prior to the completion of the sale of
the Securities by the Underwriters, the Company will not file any document
under the Exchange Act that is incorporated by reference in the
Registration Statement unless, prior to such proposed filing, the Company
has furnished the Representatives with a copy of such document for their
review and the Representatives have not reasonably objected to the filing
of such document within a reasonable period of time. The Company will
promptly advise the Representatives when any document filed under the
Exchange Act that is incorporated by reference in the Registration
Statement shall have been filed with the Commission.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it should
be necessary to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will (1) notify the Representatives
of such event, (2) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to you in such
quantities as you may reasonably request.
(c) In accordance with the requirements of the Exchange Act and the
Act applicable to the Company, the Company will make generally available
to its security holders and to the Representatives an earnings statement
or statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) which is filed in connection with
the sale of the Securities, and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) which is filed in
connection with the sale of the Securities, and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Final Prospectus and the Final Prospectus and
any supplement
18
thereto as the Representatives may reasonably request. The Company will
pay the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where
it is not now so subject. The Company will promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company shall use its best efforts to prevent the
issuance of any order suspending the qualification or exemption of the
Securities under any state securities or Blue Sky laws, and, if at any
time any state securities commission or any other regulatory authority
shall issue an order suspending the qualification or exemption of the
Securities under any state securities or Blue Sky laws, the Company shall
use every reasonable effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
(f) The Company will not, and the stockholders listed on Schedule IV
hereto will not, without the prior written consent of Salomon Smith Barney
Inc., offer, sell, contract to sell, pledge, or otherwise dispose of, (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly, including
the filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
within the meaning of Section 16 of the Exchange Act, any other shares of
Common Stock or any securities convertible into, or exercisable, or
exchangeable for, shares of Common Stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after
the date of the Underwriting Agreement; provided, however, that the
Company may (1) issue and sell Common Stock pursuant to any employee stock
option plan, stock ownership plan or dividend reinvestment plan of the
Company in effect at the Execution Time; (2) issue
19
Common Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time; and (3) issue and sell Common
Stock and convertible subordinated notes to Bell Atlantic Investments Inc.
pursuant to the terms of that certain securities purchase agreement, dated
October 7, 1999; and provided, further that, each of the stockholders
listed on Schedule IV hereto may (1) transfer up to 3,000 shares of Common
Stock as bona fide gifts; (2) transfer shares of Common Stock to an
affiliate, family member, partner or member of such stockholder if such
transferee agrees to become subject to the terms of this Section 5(i)(h);
(3) cause the Company to issue shares of Common Stock and convertible
subordinated notes pursuant to the Securities Purchase Agreement, dated
October 7, 1999, between the Company and Bell Atlantic Investments, Inc.;
(4) if applicable to such stockholder, enter into certain forward purchase
contracts with DECS Trust VI relating to shares of Common Stock; (5) with
respect to Sherman Tuan, sell up to 150,000 shares of Common Stock; and
(6) with respect to David Rand, pledge up to 250,000 shares of Common
Stock to secure margin loans entered into by him.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction of the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, the Preliminary Final Prospectus and the Final
Prospectus and all amendments or supplements to any of them, as may, in
each case, be reasonably requested for use in connection with the offering
and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the Securities;
(iv) the printing (or reproduction) and delivery of this Agreement, the
Custody Agreement, any blue sky memorandum and all other agreements or
documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (v) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of one counsel for the Underwriters relating to such registration and
qualification); (vi) fees and expenses of the Custodian;
20
(vii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (viii) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including
local and special counsel) for the Company; and (ix) all other costs and
expenses incident to the performance by the Company of its obligations
hereunder; provided, however, that, except as otherwise provided for
herein, the Underwriters shall pay their own costs and expenses, including
the fees of their counsel, any advertising expenses connected with any
offers they may make.
(i) The Company agrees to do and perform all things required to be
done and performed by it under this Agreement that are within its control
on or prior to or after the Closing Date, as applicable, and to use its
best efforts to satisfy all conditions precedent on its part to the
delivery of the Securities.
(ii) Each Selling Stockholder agrees with the several Underwriters that;
(a) Such Selling Stockholder will not, without the prior written
consent of Salomon Smith Barney Inc. offer, sell, contract to sell, pledge
or otherwise dispose of, (or enter into any transaction which is designed
to, or might reasonably be expected to, result in the disposition (whether
by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any person in privity with the Company or any affiliate of the Company)
directly or indirectly, or file (or participate in the filing of) a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act
with respect to, any shares of capital stock of the Company or any
securities convertible into or exercisable or exchangeable for such
capital stock, or publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of this Agreement;
provided, that each Selling Stockholder may (1) transfer up to 3,000
shares of Common Stock disposed of as bona fide gifts, (2) transfer shares
of Common Stock to an affiliate, family member, partner or member of such
stockholder if such transferee agrees to become subject to the terms of
this Section 5(i)(h), (3) cause the Company to issue shares of Common
Stock and convertible subordinated notes pursuant to the Securities
Purchase Agreement, dated October 7, 1999, between the Company and Bell
Atlantic Investments, Inc., and (4) if applicable to such stockholder,
enter into certain forward purchase contracts with DECS Trust VI relating
to shares of Common Stock.
21
(b) Such Selling Stockholder will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of (i) any material change in the Company's
condition (financial or otherwise), prospects, earnings, business or
properties, (ii) any change in information in the Registration Statement
or the Final Prospectus relating to such Selling Stockholder or (iii) any
new material information relating to the Company or relating to any matter
stated in the Final Prospectus which comes to the attention of such
Selling Stockholder.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company and the Selling
Stockholders made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Arnold L. Wadler,
General Counsel of the Company, to furnish to the Representatives
22
his opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
i. each of the Company's Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized,
with full corporate power and authority to own or lease, as the case may
be, and to operate, its properties and conduct its business as described
in the Final Prospectus;
ii. all the outstanding shares of capital stock of the Company
and each Subsidiary have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any security interest and, to the
knowledge of such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances;
iii. the Company's authorized capitalization is as set forth
in the Final Prospectus under the heading "Capitalization"; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, to such
counsel's knowledge, except as set forth in the Final Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligation into or exchange
any securities for, shares of capital stock of or ownership interests in
the Company are outstanding;
iv. to the knowledge of such counsel, without conducting a
docket search, there is no pending or threatened action, suit or
proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries or
its or their property that is not adequately disclosed in the Final
Prospectus, except in each case for such proceedings that, if the subject
of an unfavorable decision, ruling or finding would not, singly or in the
aggregate, result in a material adverse change in the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole; and the statements in the Final
Prospectus under the heading "Business--Legal Proceedings" fairly
summarize the matters therein described;
v. neither the execution and delivery of this Agreement, the
sale of the Securities nor the consummation of any other of the
23
transactions herein contemplated, nor the fulfillment of the terms hereof,
will conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon, any property or asset of the Company
or its subsidiaries pursuant to (i) the charter or by-laws of the
Company's subsidiaries, or (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which the
Company or any of its subsidiaries is a party or bound or to which its
respective property is subject which is known to such counsel;
vi. the statements in the Final Prospectus under the captions
"Risk Factors - The Heavy Regulation of the Telecommunications Industry
May Limit the Development of Our Networks and Affect Our Competitive
Position" and "Business-Regulation" to the extent that they discuss U.S.
federal, state, and local telecommunications statutes and regulations or
legal or governmental proceedings of the FCC and state and local
governments with respect to telecommunications regulatory matters, fairly
summarize the matters referred to therein in all material respects;
vii. neither the execution and delivery of this Agreement by
the Company nor the performance by the Company of its obligations under
this Agreement will violate the Communications Act or the State
Telecommunications Laws; and
viii. to the knowledge of such counsel and except such as
would not have a material adverse effect on the Company's or any
subsidiary's ability to conduct their respective businesses as they are
presently conducted, (A) the Company and its subsidiaries have in effect
all the U.S. federal and state telecommunications regulatory licenses,
permits, authorizations, consents, and approvals (hereinafter, "Licenses")
required to conduct their respective businesses as presently conducted;
(B) all such Licenses have been validly issued and are in full force and
effect; (C) no determination has been made by the FCC or any State
Regulatory Agency that the Company or any subsidiary is in violation of
any such Licenses, and no proceeding is pending before any such agency in
which any such violation has been alleged; and (D) no proceedings by the
FCC or any State Regulatory Agency to revoke or restrict any such Licenses
are pending or threatened. "Validly issued" as used in this paragraph
means that the Licenses have been issued through the means of regular
agency procedures applied in conformity with the applicable governing
statute and prior agency practice and there is no legal basis under the
applicable governing statute to conclude that the Company or any
subsidiary cannot hold one or more of the Licenses as a matter of law.
"Full force and effect" as used in this paragraph means (i) the
24
orders issuing the Licenses have become effective under the applicable
governing statute, (ii) the Licenses contain no conditions, (iii) all
conditions precedent set forth in the Licenses have been satisfied, and
(iv) no stay of effectiveness has been issued.
(c) The Company shall have requested and caused Paul, Weiss,
Rifkind, Wharton & Garrison, counsel for the Company, to furnish to the
Representatives its opinion, dated the Closing Date and addressed to the
Representatives, to the effect that:
i. the Company and each of the Subsidiaries incorporated (in
the case of a corporation) or organized (in the case of any other entity)
under the laws of the States of Delaware or New York has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware or is a subsisting corporation in
good standing under the laws of the State of New York, as applicable, with
full corporate power and authority to own or lease, as the case may be,
and to operate its properties and conduct its business as described in the
Final Prospectus;
ii. such counsel has been advised orally by the staff of the
Commission that the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary Final
Prospectus and the Final Prospectus, and any supplements thereto, has been
made pursuant to Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued, no proceedings for that purpose have been instituted or threatened
by the Commission, and assuming that the statements made and/or
incorporated in the Registration Statement and the Final Prospectus are
complete and correct except those made under the caption "Description of
Capital Stock" insofar as they relate to provisions of documents therein
described, the Registration Statement and the Final Prospectus, as of
their respective effective or issue dates, appear on their face to be
appropriately responsive in all material respects to the applicable
requirements of the Act and the rules and regulations of the Commission
under the Act, except for the financial statements, and other financial
and statistical information which are contained or incorporated by
reference therein or omitted therefrom, as to which such counsel need
express no opinion;
iii. this Agreement has been duly authorized, executed and
delivered by the Company;
25
iv. the statements set forth under the heading "Description of
Capital Stock", insofar as such statements purport to summarize certain
provisions of the Securities, provide a fair summary of such provisions;
v. to the extent that they constitute a summary of U.S.
federal law and regulations, the statements in the Final Prospectus under
the heading "Certain United States Federal Income Tax Considerations"
fairly summarize the matters therein described in all material respects;
vi. the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Prospectus, will not be required to
register as an "investment company" under the Investment Company Act;
vii. no consent, approval, authorization, filing with or order
of any court or governmental agency or body under the Federal laws of the
United States or the laws of the State of New York or under the General
Corporation Law of the State of Delaware is required in connection with
the due authorization, execution and delivery of this Agreement, or for
the offering, sale or delivery of the Securities, except such as will be
obtained, taken or made or such, as may be required under the blue sky or
securities laws of any state or foreign jurisdiction or the NASD (as to
which such counsel need not express any opinion) or such other approvals
(specified in such opinion) as have been obtained (provided that such
counsel need not express any opinion with respect to any consent,
approval, authorization under the Communications Act of 1934, as amended,
or any published rules, regulations or policies of the Federal
Communications Commission (the "FCC") thereunder); and
viii. neither the execution and delivery of this Agreement,
the sale of the Securities nor the consummation of any other of the
transactions herein contemplated, nor the fulfillment of the terms hereof,
will conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or asset of the Company
or its subsidiaries pursuant to, (i) the charter or by-laws of the
Company; or (ii) any statute, law, rule or regulation of the Federal
government of the United States (excluding the FCC) or the State of New
York or under the General Corporation Law of the State of Delaware, or to
such counsel's knowledge, any judgment, order or decree applicable to the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the
26
Company, any of its subsidiaries or any of their respective properties
which is known to such counsel except as described in the Final Prospectus
or for such violations as could not be reasonably expected to have, singly
or in the aggregate, a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company, the Underwriters
and counsel for the Underwriters at which the contents of the Registration
Statement and the Final Prospectus and related matters were discussed and,
although such counsel is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Final Prospectus (or any
amendments or supplements thereto) and has made no independent investigation or
verification thereof, and such counsel has not participated in the preparation
of the Incorporated Documents, on the basis of the foregoing, no facts have come
to the attention of such counsel that have led such counsel to believe that the
Registration Statement, at the Effective Time, and the Final Prospectus, at the
Execution Time and on the Closing Date, contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in each case, other than the
financial statements, schedules and other financial and statistical information
which are contained or incorporated by reference therein or omitted therefrom,
as to which such counsel need express no opinion).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York, the Federal laws of the United States or the General Corporation Law
of the State of Delaware, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe to
be reliable and who are reasonably satisfactory to counsel for the Underwriters;
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials. References to the
Registration Statement and the Prospectus in this Section 6(c) include any
amendment or supplement thereto at the Closing Date.
(d) The Company shall have furnished to the Representatives the
opinion of Baker & McKenzie, special regulatory counsel for the Company,
dated the Closing Date, to the effect that:
27
i. to the extent they constitute a summary of the regulatory
matters referred to therein, the statements in the Registration Statement
and the Final Prospectus under the caption "Business--Regulation of
International Operations" fairly summarize the matters referred to
therein;
ii. no licenses under telecommunications legislation in
England and Wales including the Telecommunications Act 1984, the Wireless
Telegraphy Act 1949 or the Wireless Telegraphy Act 1998 other than the
Licenses are required by the Company, ION LLC, ION or Racal to carry on
the ION Business in the United Kingdom;
iii. no licenses under telecommunications legislation in
England and Wales including the Telecommunications Act 1984, the Wireless
Telegraphy Act 1949 or the Wireless Telegraphy Act 1998, other than the
Licenses that are currently required by the Company in relation to the
Company's telecommunications business as presently conducted in the United
Kingdom; and
iv. no German telecommunications licenses, other than the
class 3 license obtained by Metromedia Fiber Network GmbH, are currently
required by the Company in relation to the European Network, the German
Network, or the Company's telecommunications business as presently
conducted in Germany.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction other than Germany or the United
Kingdom or the regulations of the European Union.
(e) The Selling Stockholders shall have requested and caused Paul,
Weiss, Rifkind, Wharton & Garrison, counsel for the Selling Stockholders,
to have furnished to the Representatives their opinion dated the Closing
Date and addressed to the Representatives, to the effect that:
i. this Agreement, the Custody Agreement and Power of Attorney
have been duly authorized (with respect to any Selling Stockholder which
is not a natural person), executed and delivered by the Selling
Stockholders, the Custody Agreement is valid and binding on the Selling
Stockholders and each Selling Stockholder has full legal right and
authority to sell, transfer and deliver in the manner provided in this
Agreement and the Custody Agreement the Securities being sold by such
Selling Stockholder hereunder;
28
ii. assuming that each Underwriter acquires its interest in
the Securities it has purchased from such Selling Stockholder in good
faith without notice of any adverse claim (within the meaning of Section
8-105 of the UCC), each Underwriter that has purchased such Securities
delivered on the Closing Date to The Depository Trust Company or other
securities intermediary (assuming such are securities intermediaries
within the meaning of Section 8-102(14) of the UCC) by making payment
therefor as provided herein, and that has had such Securities credited by
book entry to the securities account or accounts (within the meaning of
Section 8-501(a) of the UCC) of such Underwriter maintained by The
Depository Trust Company or such other securities intermediary will have
acquired a security entitlement (within the meaning of Section
8-102(a)(17) of the UCC) to such Securities purchased by such Underwriter,
and no action based on an adverse claim (within the meaning of Section
8-102(a)(1) and Section 8-502 of the UCC) may be asserted against such
Underwriter with respect to such Securities;
iii. to such counsel's knowledge, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the consummation by any Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained
under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals as have been
obtained; and
iv. neither the sale of the Securities being sold by any
Selling Stockholder nor the consummation of any other of the transactions
herein contemplated by any Selling Stockholder or the fulfillment of the
terms hereof by any Selling Stockholder will conflict with, result in a
breach or violation of, or constitute a default under any statute, rule or
regulation known by such counsel to be applicable to such Selling
Stockholder or the charter or By-laws of the Selling Stockholder (with
respect to any Selling Stockholder which is not a natural person) or the
terms of any indenture or other agreement or instrument known to such
counsel and to which the Selling Stockholder is a party or bound, or any
judgment, order or decree known to such counsel to be applicable to the
Selling Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Selling
Stockholder.
(f) The Representatives shall have received from Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the sale of the Securities, the Registration Statement,
the Final Prospectus (together with any supplement thereto) and other
related matters
29
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board of
Directors or the President and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Final Prospectus, any supplements to the Final Prospectus
and this Agreement and that:
i. the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date, and the
Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior
to the Closing Date;
ii. no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Company's knowledge, threatened; and
iii. since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus (exclusive
of any amendment or supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any amendment or supplement thereto).
(h) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by such Selling Stockholder, dated
the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement and that the
representations and warranties of such Selling Stockholder in this
Agreement are true and correct in all material respects on and as of the
Closing Date to the same effect as if made on the Closing Date.
(i) At the Execution Time and at the Closing Date, the Company shall
have requested and caused Ernst & Young LLP to furnish to the
30
Representatives letters, dated respectively as of the Execution Time and
as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the applicable rules and
regulations thereunder, that they have performed a review of the unaudited
interim financial information of the Company for the nine month period
ended September 30, 1999 and as at September 30, 1999 and stating in
effect that:
i. in their opinion the audited financial statements and
financial statement schedules included or incorporated in the Registration
Statement and the Final Prospectus and reported on by them comply as to
form in all material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and regulations
thereunder;
ii. on the basis of a reading of the latest unaudited
financial statements made available by the Company and its subsidiaries;
their limited review in accordance with the standards established under
Statement on Auditing Standards No. 71, of the unaudited interim financial
information for the nine month period ended September 30, 1999, and as at
September 30, 1999; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing standards)
which would not necessarily reveal matters of significance with respect to
the comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and committees of the Company and
the Subsidiaries; and inquiries of certain officials of the Company who
have responsibility for financial and accounting matters of the Company
and its subsidiaries as to transactions and events subsequent to December
31, 1998, nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final Prospectus
do not comply in form in all material respects with applicable
accounting requirements and with the published rules and regulations
of the Commission with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under the Exchange
Act; or that said unaudited financial statements are not in
conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statement
and the Final Prospectus;
(2) with respect to the period subsequent to September 30,
1999, there were any changes, at a specified date not more than
three
31
days prior to the date of the letter, in the capital stock, increase
in long-term debt of the Company and its subsidiaries or
stockholders' equity of the Company as compared with the amounts
shown on the September 30, 1999 consolidated balance sheet included
in the Final Prospectus, or for the period from October 1, 1999 to
such specified date there were any decreases, as compared with the
corresponding period in the preceding year in revenues of the
Company and its subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary
by the Representatives; or
(3) the information included under the headings "Selected
Consolidated Financial Data" and "Management-Executive Compensation"
is not in conformity with the disclosure requirements of Regulation
S-K;
iii. they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in the
Final Prospectus, including the information set forth under the captions
"Risk Factors", "Use of Proceeds", "Capitalization", "Selected
Consolidated Financial Data", "Management's Discussion and Analysis of
Financial Condition and Results of Operations", "Business", "Management",
and "Certain Relationships and Related Transactions" in the Final
Prospectus, the information included or incorporated in Items 1, 2, 6, 7
and 11 of the Company's Annual Report on Form 10-K incorporated in the
Final Prospectus and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
included or incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Final Prospectus agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of legal
interpretation; and
iv. on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures; inquiries of
certain officials of the Company and AboveNet Communications, Inc. who
have responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the pro forma financial statements, nothing came to
their attention which caused
32
them to believe that the pro forma financial statements do not comply as
to form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in
the compilation of such statements.
(j) [Intentionally Omitted]
(k) At the Execution Time and at the Closing Date, Deloitte & Touche
LLP shall have furnished to the Representatives letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the
applicable rules and regulations thereunder, and stating in effect that:
i. in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement and
the Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements of the Act
and the related published rules and regulations; and
ii. they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (k) include any
supplement thereto at the date of the letter.
(l) At the Execution Time and at the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to the Representatives a
letter or letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the applicable rules and regulations
thereunder, and stating in effect that:
i. in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement and
the Final Prospectus and reported on by them comply in form in all
material
33
respects with the accounting requirements of the Act and the related
published rules and regulations; and
ii. they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus agrees with the accounting
records of the Company and its subsidiaries, excluding any questions of
legal interpretation.
References to the Final Prospectus in this paragraph (l) include any
supplement thereto at the date of the letter.
(m) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (g) of this
Section 6 or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any amendment or supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to market the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any amendment or supplement thereto).
(n) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(o) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated
by the Commission at or prior to the Closing Date; (ii) there shall not
have been any change in the capital stock of the Company nor any material
34
increase in the short-term or long-term debt of the Company (other than in
the ordinary course of business) from that set forth or contemplated in
the Registration Statement or the Final Prospectus (or any amendment or
supplement thereto); (iii) there shall not have been, since the respective
dates as of which information is given in the Registration Statement and
the Final Prospectus (or any amendment or supplement thereto), except as
may otherwise be stated in the Registration Statement and Final Prospectus
(or any amendment or supplement thereto), any material adverse change in
the condition (financial or other), business, prospects, properties, net
worth or results of operations of the Company and the Subsidiaries taken
as a whole; (iv) the Company and the Subsidiaries shall not have any
liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Company and the
Subsidiaries, taken as a whole, other than those reflected in the
Registration Statement or the Final Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties of the
Company contained in this Agreement shall be true and correct on and as of
the date hereof and on and as of the Closing Date as if made on and as of
the Closing Date and you shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the chief
financial officer of the Company (or such other officers as are acceptable
to you), to the effect set forth in this Section 6(o) hereof.
(p) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at
or prior to the Closing Date.
(q) At the Execution Time, each stockholder listed on Schedule IV
shall have furnished to the Representatives a letter substantially in the
form of Exhibit A hereto addressed to the Representatives.
(r) Prior to the Closing Date, the Company and Selling Stockholders
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
(s) If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representatives and
counsel for the Underwriters, this Agreement and all obligations of the
Underwriters
35
hereunder may be cancelled at, or at any time prior to, the Closing Date
by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone or facsimile confirmed in writing.
(t) The documents required to be delivered by this Section 6 will be
delivered at the office of Paul, Weiss, Rifkind, Wharton & Garrison,
counsel for the Company, 1285 Avenue of the Americas, New York, New York
10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or any Selling Stockholder to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through Salomon Smith Barney Inc. on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of one
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities. If the Company is required to make any
payments to the Underwriters under this Section 7 because of any Selling
Stockholder's refusal, inability or failure to satisfy any condition to the
obligations of the Underwriters set forth in Section 6, the Selling Stockholders
pro rata in proportion to the percentage of Securities to be sold by each shall
reimburse the Company on demand for all amounts so paid.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final 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, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the
36
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein and (ii) with respect to any untrue statement
or alleged untrue statement of, or omission or alleged omission to state, a
material fact made in any Preliminary Final Prospectus, the indemnity agreement
contained in this Section 8(a) shall not inure to the benefit of any Underwriter
(or any of the directors, officers, employees and agents of such Underwriter or
any controlling person of such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities concerned, to the
extent that any such loss, claim, damage or liability of such Underwriter occurs
under the circumstances where it shall have been determined by a court of
competent jurisdiction (or appropriate arbitral proceeding) by final and
nonappealable judgment that (w) the Company had previously furnished copies of
the Final Prospectus to the Underwriters, (x) delivery of the Final Prospectus
was required by the Act or under this Agreement to be made to such person, (y)
the untrue statement or omission of a material fact contained in the Preliminary
Final Prospectus was corrected in the Final Prospectus and (z) there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Securities to such person, a copy of the Final Prospectus. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Selling Stockholder severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers, employees, agents and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls the Company or any Underwriter
within the meaning of either the Act or the Exchange Act and each other
Selling Stockholder, if any, to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only with reference to written
information furnished to the Company by or on behalf of such Selling
Stockholder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
Selling Stockholder, to the same extent as the foregoing indemnity to
37
each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company and each Selling Stockholder acknowledge that the
statements set forth in the last paragraph of the cover page regarding
delivery of the Securities, the first paragraph on page S-3 related to
stabilization, syndicate covering transactions and penalty bids and, under
the heading "Underwriting" or "Plan of Distribution", (i) the list of
Underwriters and their respective participation in the sale of the
Securities, (ii) the sentences related to concessions and reallowances and
(iii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Final Prospectus and the
Final Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary
Final Prospectus or the Final Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a), (b) or (c) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses as determined by a
court of competent jurisdiction and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a), (b) or (c)
above. The indemnifying party shall be entitled to assume the defense of
such action and appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to assume the defense of such action or appoint counsel
to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, which has not been waived; (ii) the
actual or potential
38
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have been
reasonably advised by such counsel that there are legal defenses available
to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have assumed the defense of the action or
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. In any such case, the indemnifying party shall
not, in connection with any one action or separate but substantially
similar related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim
or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, each party liable under
paragraph (a), (b) or (c) above (each, for purposes of this paragraph (e),
an "Indemnifying Party") agrees to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits
received by the Company and by the Selling Stockholders on the one hand
and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
provided in any agreement among Underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased
by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, each
Indemnifying Party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of
the Company, of the Selling Stockholders and of the Underwriters in
39
connection with the statements or omissions or alleged statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company and the Selling
Stockholders shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information provided by the Company and the
Selling Stockholders on the one hand or the Underwriters on the other, the
intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission or
alleged untrue statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (e), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person who controls an Underwriter
within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act and each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof
and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the public offering price
of the Securities sold by such Selling Stockholder to the Underwriters
(net of underwriting discounts or commissions, but before deducting
expenses). The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amounts of such liability for which they
each shall be responsible.
40
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
(i) make arrangements for the purchase of the Securities which such defaulting
Underwriter or Underwriters agreed but failed to purchase by other persons
satisfactory to the Selling Stockholder and the non-defaulting Underwriters,
and/or (ii) purchase all, but shall not be under any obligation to purchase any,
of the Securities, and if such nondefaulting Underwriters do not make such
arrangements and/or purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter, the Selling Stockholders or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company, the Selling Stockholders or any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the NASDAQ National Market or trading in securities generally on
the New York Stock Exchange or the NASDAQ National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or the NASDAQ National Market; (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war, or other calamity or crisis
the effect of which on financial markets is such as to make it, in the sole
judgment of the Representatives, impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Prospectus
(exclusive of any amendment or supplement thereto).
41
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers, of each Selling Stockholder and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter, any
Selling Stockholder or the Company or any of the officers, directors, employees,
agents or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telefaxed to Salomon Smith Barney Inc. General Counsel (fax no.: (212)
816-7912) and confirmed to the General Counsel, Salomon Smith Barney Inc., at
388 Greenwich Street, New York, New York, 10013, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to Metromedia
Fiber Network Services, Inc. c/o Metromedia Fiber Network, Inc., One North
Lexington Avenue, White Plains, New York 10601, Attention: Chief Financial
Officer (fax no.: (914) 421-6777) and confirmed to it at Metromedia Company, One
Meadowlands Plaza, East Rutherford, New Jersey 07073-2137, Attention: General
Counsel (fax no.: (201) 531-2803) and 215 East 67th Street, New York, New York
10021, Attention: Executive Vice President (fax no.: (212) 606-4337); or if sent
to any Selling Stockholders, will be mailed, delivered or telefaxed and
confirmed to it at the address set forth in Schedule I hereto.
13. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and, except
as expressly set forth in Section 5(h) or Section 8 hereof, no other person will
have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
42
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules and
regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph 1(a)
above contained in the Registration Statement at the Effective Date including
any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Communications Act" shall mean the Communications Act of 1934, as amended
(including amendments made by the Telecommunications Act of 1996), 47 U.S.C.
section 151 and the rules and regulations of the FCC.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus, together
with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred to
in paragraph 1(a) above, including exhibits and financial statements, as amended
at the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto or
43
any Rule 462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended or such Rule
462(b) Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date as
provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"State Telecommunications Laws" shall mean the comparable state statutes
of all states in which the Company and/or its subsidiaries is certified to
provide services.
44
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Company, the Selling Stockholders and the several Underwriters as of the date
written above.
Very truly yours,
METROMEDIA FIBER NETWORK, INC.
By: /s/ Gerard Benedetto
------------------------------------
Name: Gerard Benedetto
Title: Chief Financial Officer and
Senior Vice President
[Underwriting Agreement-Secondary Offering]
/s/ Stephen A. Garofalo
----------------------------------------
STEPHEN A. GAROFALO
/s/ Howard M. Finkelstein
----------------------------------------
HOWARD M. FINKELSTEIN
/s/ Gerard Benedetto
----------------------------------------
GERARD BENEDETTO
/s/ Silvia Kessel
----------------------------------------
SILVIA KESSEL
/s/ John W. Kluge
----------------------------------------
JOHN W. KLUGE
DR & DESCENDANTS, L.L.C.
By: /s/ William L. Asmuundson
------------------------------------
Name: William L. Asmundson
Title: President & CEO
/s/ Stuart Subotnick
----------------------------------------
STUART SUBOTNICK
/s/ Arnold L. Wadler
----------------------------------------
ARNOLD L. WADLER
[Underwriting Agreement-Secondary Offering]
46
The foregoing Agreement is hereby confirmed and accepted as of the date written
above.
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Donaldson Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: Salomon Smith Barney Inc.
By: /s/ Robert Doherty
----------------------------------------
Name: Robert Doherty
Title: Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
[Underwriting Agreement-Secondary Offering]
47
SCHEDULE I
Selling Stockholders: Number of Underwritten Maximum Number of
Securities to be Sold Option Securities to be Sold
Stephen A. Garofalo 1,156,000 173,400
One North Lexington Ave.
White Plains, NY 10601
Howard M. Finkelstein 2,400,000 360,000
One North Lexington Ave.
White Plains, NY 10601
Gerard Benedetto 235,000 35,250
One North Lexington Ave.
White Plains, NY 10601
Silvia Kessel 96,000 14,400
215 East 67th Street
New York, NY 10021
DR & Descendants, L.L.C. 170,000 25,500
30 Rockefeller Plaza
New York, NY 10112
Stuart Subotnick 575,000 86,250
215 East 67th Street
New York, NY 10021
John Kluge 143,000 21,450
215 East 67th Street
New York, NY 10021
Arnold L. Wadler 120,000 18,000
One Meadowlands Plaza
East Rutherford, NJ 07073
Total ................ 4,895,000 734,250
========= =======
1
SCHEDULE II
Underwriters Number of Underwritten
------------ Securities to be Purchased
--------------------------
Salomon Smith Barney Inc. 2,447,500
Credit Suisse First Boston Corporation 979,000
Deutsche Bank Securities Inc. 979,000
Donaldson, Lufkin & Jenrette 244,750
Securities Corporation
Goldman, Sachs & Co. 122,375
Merrill Lynch, Pierce, Fenner & Smith 122,375
Incorporated
Total 4,895,000
1
SCHEDULE III
Subsidiaries of the Company
- ---------------------------
1. Metromedia Fiber Network NYC, Inc.
2. Metromedia Fiber Network Services, Inc.
3. AboveNet Communications Inc.
4. Metromedia Fiber Network International, Inc.
2
SCHEDULE IV
Stockholders to provide Lock-Up Agreements
- ------------------------------------------
1. Vincent A. Galluccio
2. Nicholas M. Tanzi
3. David Rand
4. Sherman Tuan
5. Metromedia Company
3
Exhibit A
[Letterhead of officer, director or major stockholder of Corporation]
, 1999
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Donaldson Lufkin & Jenrette
Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Metromedia Fiber
Network, Inc., a Delaware corporation (the "Company"), the Selling Stockholders
listed in Schedule I thereto and each of you as representatives of a group of
Underwriters named therein, relating to an underwritten public offering of
Common Stock, $.01 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing or participation in the filing of) a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such
4
transaction, for a period of 90 days after the date of this Agreement; provided,
however, that the undersigned may (i) transfer up to 3,000 shares of Common
Stock as bona fide gifts; (ii) transfer shares of Common Stock to an affiliate,
family member, partner or member of the undersigned if such transferee agrees to
become subject to the terms of this Agreement; (iii) cause the Company to issue
shares of Common Stock and convertible subordinated notes pursuant to the
Securities Purchase Agreement, dated October 7, 1999, between the Company and
Bell Atlantic Investments, Inc.; (iv) if applicable to the undersigned, enter
into certain forward purchase contracts with DECS Trust VI relating to shares of
Common Stock; (v) with respect to Sherman Tuan, sell up to 150,000 shares of
Common Stock; and (vi) with respect to David Rand, pledge up to 250,000 shares
of Common Stock to secure margin loans entered into by him.
5
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
By:
------------------------------------
Name:
Title:
6