EXHIBIT 1.1
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IXL ENTERPRISES, INC.
(a Delaware corporation)
[ ] Shares of Common Stock
U.S. PURCHASE AGREEMENT
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Dated: [ ], 1999
TABLE OF CONTENTS
PAGE
U.S. PURCHASE AGREEMENT.............................................................. 1
SECTION 1. Representations and Warranties..................................... 4
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(a) Representations and Warranties by the Company....................... 4
(b) Officer's Certificates.............................................. 13
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.................... 13
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(a) Initial Securities.................................................. 13
(b) Option Securities................................................... 13
(c) Payment............................................................. 14
(d) Denominations; Registration......................................... 15
SECTION 3. Covenants of the Company........................................... 15
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(a) Compliance with Securities Regulations and Commission Requests...... 15
(b) Filing of Amendments................................................ 15
(c) Delivery of Registration Statements................................. 15
(d) Delivery of Prospectuses............................................ 16
(e) Continued Compliance with Securities Laws........................... 16
(f) Blue Sky Qualifications............................................. 16
(g) Rule 158............................................................ 17
(h) Use of Proceeds..................................................... 17
(i) Listing............................................................. 17
(j) Restriction on Sale of Securities................................... 17
(k) Reporting Requirements.............................................. 18
(l) Compliance with NASD Rules.......................................... 18
(m) Compliance with Rule 463............................................ 18
SECTION 4. Payment of Expenses................................................ 18
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(a) Expenses............................................................ 18
(b) Termination of Agreement............................................ 19
SECTION 5. Conditions of U.S. Underwriters' Obligations....................... 19
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(a) Effectiveness of Registration Statement............................. 19
(b) Opinions of Counsel for Company..................................... 19
(c) Opinion of Counsel for U.S. Underwriters............................ 19
(d) Officers' Certificate............................................... 20
(e) Accountants' Comfort Letters........................................ 20
(f) Bring-down Comfort Letters.......................................... 20
(g) Approval of Listing................................................. 20
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(h) No Objection............................................................. 20
(i) Lock-up Agreements....................................................... 21
(j) Purchase of Initial International Securities............................. 21
(k) GE Private Placement..................................................... 21
(l) Conditions to Purchase of U.S. Option Securities......................... 21
(m) Additional Documents..................................................... 22
(n) Termination of Agreement................................................. 22
SECTION 6. Indemnification......................................................... 22
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(a) Indemnification of U.S. Underwriters..................................... 22
(b) Indemnification of Company, Directors and Officers....................... 24
(c) Actions against Parties; Notification.................................... 24
(d) Settlement without Consent if Failure to Reimburse....................... 25
(e) Indemnification for Reserved Securities.................................. 25
SECTION 7. Contribution............................................................ 25
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery.......... 27
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SECTION 9. Termination of Agreement................................................ 27
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(a) Termination; General..................................................... 27
(b) Liabilities.............................................................. 27
SECTION 10. Default by One or More of the U.S. Underwriters........................ 27
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SECTION 11. Notices................................................................ 28
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SECTION 12. Parties................................................................ 28
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SECTION 13. GOVERNING LAW AND TIME................................................. 29
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SECTION 14. Effect of Headings..................................................... 29
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SCHEDULE A........................................................................... Sch.A-1
SCHEDULE B........................................................................... Sch.B-1
SCHEDULE C........................................................................... Sch.C-1
Exhibit A-1.......................................................................... A-1-1
Exhibit A-2.......................................................................... A-2-1
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Exhibit A-3............................................................. A-3-1
Exhibit A-4............................................................. A-4-1
Exhibit A-5............................................................. A-5-1
Exhibit B............................................................... B-1
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IXL ENTERPRISES, INC.
(a Delaware corporation)
[ ] Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
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[ ] ,1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
▇▇ ▇▇▇▇▇ Securities Corporation
as U.S. Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
IXL Enterprises, Inc., a Delaware corporation (the "Company"), confirms its
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other U.S. Underwriters named in
Schedule A hereto (collectively, the "U.S. Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ Lynch, Donaldson, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation, Banc Boston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇ ▇▇▇▇▇ Securities
Corporation are acting as representatives (in such capacity, the "U.S.
Representatives"), with respect to the issue and sale by the Company and the
purchase by the U.S. Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Company to the U.S. Underwriters, acting severally and not jointly,
of the option described in Section 2(b) hereof to purchase all or any part of
[ ] additional shares of Common Stock to cover over-
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allotments, if any. The aforesaid [ ] shares of Common Stock (the "Initial U.S.
Securities") to be purchased by the U.S. Underwriters and all or any part of the
[ ] shares of Common Stock subject to the option described in Section 2(b)
hereof (the "U.S. Option Securities") are hereinafter called, collectively, the
"U.S. Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of [ ] shares of
Common Stock (the "Initial International Securities") through arrangements with
certain underwriters outside the United States and Canada (the "International
Managers") for which ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation, BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and ▇▇ ▇▇▇▇▇
Securities Corporation are acting as lead managers (the "Lead Managers") and the
grant by the Company to the International Managers, acting severally and not
jointly, of an option to purchase all or any part of the International Managers'
pro rata portion of up to [ ] additional shares of Common Stock solely to cover
overallotments, if any (the "International Option Securities" and, together with
the U.S. Option Securities, the "Option Securities"). The Initial International
Securities and the International Option Securities are hereinafter called the
"International Securities". It is understood that the Company is not obligated
to sell and the U.S. Underwriters are not obligated to purchase, any Initial
U.S. Securities unless all of the Initial International Securities are
contemporaneously purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities, and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a public
offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
The Company and the U.S. Underwriters agree that up to [ ] shares of the
Initial U.S. Securities to be purchased by the U.S. Underwriters and that up to
[ ] shares of the Initial International Securities to be purchased by the
International Mangers (collectively, the "Reserved Securities") shall be
reserved for sale by the Underwriters to certain eligible employees and persons
having business relationships with the Company, as part of the distribution of
the Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. and all other applicable laws, rules and regulations.
To the extent that such Reserved Securities are not orally confirmed for
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purchase by such eligible employees and persons having business relationships
with the Company by the end of the first business day after the date of this
Agreement, such Reserved Securities may be offered to the public as part of the
public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-71937) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting" and the inclusion in the Form
of International Prospectus of a section under the caption "Certain United
States Tax Considerations for Non-United States Holders." The information
included in any such prospectus or in any such Term Sheet, as the case may be,
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective (a) pursuant to paragraph (b) of Rule 430A is referred
to as "Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each Form of U.S. Prospectus and Form of
International Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto and schedules thereto at the time it became effective and including the
Rule 430A Information and the Rule 434 Information, as applicable, is herein
called the "Registration Statement." Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final Form
of U.S. Prospectus and the final Form of International Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated [ ], 1999 and preliminary
International Prospectus dated [ ], 1999, respectively, each together with the
applicable Term Sheet and all references in this Agreement to the date of such
Prospectuses shall mean the date of the applicable Term Sheet. For purposes of
this Agreement, all references to the Registration Statement, any preliminary
prospectus, the U.S. Prospectus, the International Prospectus or any Term Sheet
or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with
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the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
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(1) Representations and Warranties by the Company. The Company represents
and warrants to each U.S. Underwriter as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b), hereof and agrees with each U.S. Underwriter,
as follows:
(1) Compliance with Registration Requirements. Each of the
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Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply as to form in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectuses, any
preliminary prospectuses and any supplement thereto or the prospectus
wrapper relating to sales of Securities in Canada (except as it relates
specifically to matters of Canadian law) prepared in connection therewith,
at their respective times of issuance and at the Closing Time, complied and
will comply in all material respects with any applicable laws or
regulations of foreign jurisdictions in which the Prospectuses and such
preliminary prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of Reserved Securities.
Neither of the Prospectuses nor any amendments or supplements thereto
(including the prospectus wrapper relating to sales of Securities in Canada
(except as it relates specifically to matters of Canadian law)), at the
time the Prospectuses or any amendments or supplements thereto were issued
and at the Closing Time (and, if any U.S. Option Securities are purchased,
at the Date of Delivery), included or will include an untrue statement of a
material fact or omitted or will 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. If Rule 434 is used, the
Company will comply with the requirements of Rule 434 and the Prospectuses
shall not be "materially different", as such term is used in Rule 434, from
the prospectuses included in the Registration Statement at the time it
became effective. The representations and warranties in this subsection
shall not apply to statements in or omissions from the
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Registration Statement or the U.S. Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any U.S. Underwriter through the U.S. Representatives expressly for use
in the Registration Statement or the U.S. Prospectus.
The Company has filed a registration statement pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (the "1934 Act"), to
register the Common Stock, and such registration statement has been
declared effective.
Each preliminary prospectus and the prospectuses filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied as to
form when so filed in all material respects with the 1933 Act Regulations
and each preliminary prospectus and the Prospectuses to be delivered to the
Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the preliminary prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any U.S. Underwriter through the U.S. Representatives expressly for use
in the preliminary prospectus.
(2) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(3) Financial Statements. The financial statements of the Company and
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its consolidated subsidiaries included in the Registration Statement and
the Prospectuses, together with the related schedules and notes, present
fairly in all material respects the financial position of the Company and
its consolidated Subsidiaries (as defined below) at the dates indicated and
the statement of operations, stockholders' equity and cash flows of the
Company and its consolidated Subsidiaries for the periods specified; said
financial statements have been prepared in conformity with generally
accepted accounting principles (GAAP) applied on a consistent basis
throughout the periods involved. The supporting schedules, if any, included
in the Registration Statement present fairly, in all material respects, in
accordance with GAAP the information required to be stated therein. The
selected consolidated financial data, the summary consolidated financial
information, and the capitalization information included in the
Prospectuses present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of the
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses, other than the quarterly pro
forma information set forth in the Prospectuses under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," present fairly, in all material
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respects, the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein. No financial statements
are required to be included in the Registration Statement that have not
been so included.
(4) Subsidiary Financial Statements. The financial statements of the
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Company's Subsidiaries included in the Registration Statement and the
Prospectuses, together with the related schedules and notes, present fairly
in all material respects the financial position of such Subsidiaries and
their respective consolidated Subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of such
Subsidiaries and their respective consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved.
(5) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(6) Good Standing of the Company. The Company has been duly
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incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
reasonably be expected to result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each subsidiary of the Company
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(other than subsidiaries in which the Company has only a minority ownership
interest) (each such subsidiary individually a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease
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and operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect; except for the pledge of the Subsidiaries' stock
pursuant to the Credit Facility (as such term is defined in the
Registration Statement) or as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity; none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the preemptive
or similar rights of any security holder of such Subsidiary or other party.
The only Subsidiaries of the Company are the Subsidiaries listed on Exhibit
21 to the Registration Statement. Except as described in the Prospectuses,
or except as would not be required to be described the Company has no
agreements, commitments, or understandings with respect to acquiring the
business, stock or material assets, except those assets acquired in the
ordinary course of business, of any other person or entity.
(8) Capitalization. The authorized, issued and outstanding capital
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stock of the Company is as set forth in the Prospectuses under the caption
"Capitalization", and, after giving effect to the offering will be as set
forth as "Pro Forma As Adjusted" under the caption "Capitalization" (except
for subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities or
options referred to in the Prospectuses) and for 4,000,000 shares of Common
Stock registered pursuant to a shelf Registration Statement on Form S-4 for
use in future acquisitions and the number of authorized, issued and
outstanding options and other rights is set forth in the footnotes under
such caption. To the knowledge of the Company, the shares of issued and
outstanding capital stock of the Company and its subsidiary Consumer
Financial Network, Inc. have been duly authorized and validly issued and
are fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any security holder of the Company. The shares of
issued and outstanding capital stock of the Company have been issued in
compliance, in all material respects, with all federal and state securities
laws. Except as disclosed in the Prospectuses, there are no outstanding
options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of the Company's or its
Subsidiaries' capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock option
and purchase plans and the options or other rights granted and exercised
thereunder set forth in the Prospectuses accurately and fairly describe, in
all material respects, the information required to be shown with respect to
such plans, arrangements, options and rights.
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(9) Authorization of Agreement. This Agreement and the International
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Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(10) Authorization and Description of Securities. The Securities to be
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purchased by the U.S. Underwriters and the International Managers from the
Company have been duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth herein and the International Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Common Stock conforms in all material respects to all statements relating
thereto contained in the Prospectuses and such description conforms in all
material respects to the rights set forth in the instruments defining the
same; no holder of the Securities will be subject to personal liability by
reason of being such a holder; and the issuance of the Securities is not
subject to the preemptive rights, co-sale rights, registration rights,
right of first refusal or similar rights of any security holder of the
Company or other party and will be sold free and clear of all liens,
encumbrances, equities or claims.
(11) Absence of Defaults and Conflicts. Neither the Company nor any of
---------------------------------
its Subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the International
Purchase Agreement and the consummation of the transactions contemplated in
this Agreement, the International Purchase Agreement and in the
Registration Statement (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in
the Prospectuses under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement and the International
Purchase Agreement have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any Subsidiary pursuant to, the Agreements and
Instruments (except for such violations, conflicts, breaches or defaults or
liens, charges or encumbrances that would not reasonably be expected to
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or any
8
Subsidiary or any applicable law, statute binding upon, or, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their assets, properties or operations,
except for such defaults, which would not reasonably be expected to result
in a Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary.
(12) Absence of Labor Dispute. No labor dispute with the employees of
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the Company or any Subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse Effect.
(13) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement and the
International Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary routine
litigation incidental to the business, would not reasonably be expected to
result in a Material Adverse Effect.
(14) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required. The contracts so filed as exhibits are
accurate and complete, in all material respects; all such contracts are in
full force and effect on the date hereof, and neither the Company or any of
its Subsidiaries or, to the Company's best knowledge, any other party is in
breach of or default under any material provisions of such contracts the
result of which would reasonably be likely to result in a Material Adverse
Effect.
(15) Possession of Intellectual Property. The Company and its
-----------------------------------
Subsidiaries own or possess or have access to adequate patents, patent
rights, licenses, inventions,
9
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), United States trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to
carry on the business now operated by them except as would not reasonably
be expected to have a Material Adverse Effect, and neither the Company nor
any of its Subsidiaries has received any notice or is otherwise aware of
any infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its Subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would reasonably be expected to result in a Material Adverse Effect.
(16) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required to be made or obtained by the Company for the
performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities under this Agreement and
the International Purchase Agreement or the consummation of the
transactions contemplated by this Agreement and the International Purchase
Agreement, except (i) such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations and foreign or
state securities or blue sky laws, (ii) such as have been obtained under
the laws and regulations of jurisdictions outside the United States in
which the Reserved Securities are offered or (iii) such as have been
described in the Registration Statement.
(17) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not reasonably be expected to have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(18) Title to Property. The Company and its Subsidiaries have good and
-----------------
marketable title to all real property owned by the Company and its
Subsidiaries and valid title to all other properties and assets owned by
them, in each case, free and clear of all
10
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) would not, singly or in the aggregate reasonably be
expected to have a Material Adverse Effect, the value of such property or
assets and would not reasonably be expected to interfere with the use made
and proposed to be made of such property by the Company or any of its
Subsidiaries; and all of the leases and subleases material to the business
of the Company and its Subsidiaries, considered as one enterprise, and
under which the Company or any of its Subsidiaries holds properties
described in the Prospectuses, are in full force and effect, except for
such failure to be in force as would not reasonably be expected to have a
Material Adverse Effect and neither the Company nor any Subsidiary has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the rights
of the Company or such Subsidiary to the continued possession of the leased
or subleased premises under any such lease or sublease.
(19) Tax Returns and Payment of Taxes. The Company and its
--------------------------------
Subsidiaries have timely filed all Federal, state, local and foreign tax
returns that are required to be filed or have duly requested extensions
thereof and all such tax returns are true, correct and complete, except to
the extent that any failure to file or request an extension, or any
incorrectness would not reasonably be expected to result in a Material
Adverse Effect. The Company and its Subsidiaries have timely paid all taxes
shown as due on such filed tax returns (including any related assessments,
fines or penalties), except to the extent that any such taxes are being
contested in good faith and by appropriate proceedings, or to the extent
that any failure to pay would not reasonably be expected to result in a
Material Adverse Effect; and adequate charges, accruals and reserves have
been provided for in the financial statements referred to in Section
1(a)(iii) above in accordance with GAAP in respect of all Federal, state,
local and foreign taxes for all periods as to which the tax liability of
the Company or any of its Subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities. The Company
is not a "United States real property holding corporation" within the
meaning of Section 897(c)(3) of the Internal Revenue Code of 1986, as
amended.
(20) Insurance. 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 the Company believes are prudent and customary
in the businesses in which they are engaged; and neither the Company nor
any of its Subsidiaries has any reason to believe that any of them 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
necessary to continue its business except where the failure to renew or
maintain such coverage would not reasonably be expected to result in a
Material Adverse Effect. The officers and directors of the Company are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary for
officers and directors liability insurance of a public company and as would
11
cover claims which could be made in connection with the issuance of the
Securities; and the Company has no reason to believe that it will not be
able to renew its existing directors and officers liability insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to cover its officers and
directors.
(21) No Stabilization or Manipulation. Neither the Company nor, to the
--------------------------------
knowledge of the Company, any of its directors, officers or affiliates has
taken nor will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation M
under the 1934 Act.
(22) Investment Company Act. The Company is not, and upon the issuance
----------------------
and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectuses will not be, an
"investment company" or an entity "controlled" by an "investment company"
as such terms are defined in the Investment Company Act of 1940, as amended
(the "1940 Act").
(23) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, (C) there are no pending or threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its Subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
12
(24) Registration Rights. Except as described in the Prospectuses,
-------------------
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(25) Certain Transactions. Except as disclosed in the Prospectuses or
--------------------
except as not reasonably required to be disclosed in the Prospectuses,
there are no outstanding loans, advances, or guarantees of indebtedness by
the Company to or for the benefit of any of the executive officers or
directors of the Company or any of the members of the families of any of
them.
(26) Accounting and other Controls. The Company has established for
-----------------------------
itself and each Subsidiary and, with respect to future acquisitions, will
establish, a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions were, are or, in the case of
such future acquisitions, will be executed in accordance with management's
general or specific authorization; (ii) transactions were, are or, in the
case of such future acquisitions, will be recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets was, is or, in the case of such future acquisitions, will
be permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets was, is or,
in the case of such future acquisitions, will be compared with existing
assets at reasonable intervals and appropriate action was, is or, in the
case of such future acquisitions, will be taken with respect to any
differences.
(27) Regulations. The Company and CFN have not been advised, and have
-----------
no reason to believe, that either they or any of their subsidiaries is not
conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, all applicable local, state and federal laws
and regulations; except where failure to be so in compliance would not
reasonably be expected to result in a Material Adverse Effect.
(2) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Global Coordinator, the U.S.
Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
(1) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each U.S. Underwriter, severally and not jointly, and
each U.S. Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price per share set forth in Schedule B,
13
the number of Initial U.S. Securities set forth in Schedule A opposite the name
of such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(2) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to each U.S. Underwriter,
severally and not jointly, to purchase up to an additional
__________________________ shares of Common Stock at the price per share set
forth in Schedule B, less an amount per share equal to any dividends or
distributions declared by the Company and payable on the Initial U.S. Securities
but not payable on the U.S. Option Securities. The option hereby granted will
expire 30 days after the date hereof and may be exercised in whole or in part
from time to time only for the purpose of covering over-allotments which may be
made in connection with the offering and distribution of the Initial U.S.
Securities upon notice by the Global Coordinator to the Company setting forth
the number of U.S. Option Securities as to which the several U.S. Underwriters
are then exercising the option and the time and date of payment and delivery for
such U.S. Option Securities. Any such time and date of delivery for the U.S.
Option Securities (a "Date of Delivery") shall be determined by the Global
Coordinator, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
U.S. Option Securities, each of the U.S. Underwriters, acting severally and not
jointly, will purchase that proportion of the total number of U.S. Option
Securities then being purchased which the number of Initial U.S. Securities set
forth in Schedule A opposite the name of such U.S. Underwriter bears to the
total number of Initial U.S. Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(3) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Global Coordinator
and the Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the
pricing occurs after 4:30 P.M. (Eastern time) on any given day) business day
after the date hereof (unless postponed in accordance with the provisions of
Section 10), or such other time not later than ten business days after such date
as shall be agreed upon by the Global Coordinator and the Company (such time and
date of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities are
purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Representatives for
14
the respective accounts of the U.S. Underwriters of certificates for the U.S.
Securities to be purchased by them. It is understood that each U.S. Underwriter
has authorized the U.S. Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial U.S.
Securities and the U.S. Option Securities, if any, which it has agreed to
purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the U.S.
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial U.S. Securities or the U.S. Option Securities, if any, to
be purchased by any U.S. Underwriter whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such U.S. Underwriter from its obligations hereunder.
(4) Denominations; Registration. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each U.S.
------------------------
Underwriter as follows:
(1) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company, after
consultation with the U.S. Representatives, will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems necessary
to ascertain promptly whether the form of prospectus transmitted for filing
under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. The Company, after
consultation with the U.S. Representatives, will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
15
(2) Filing of Amendments. The Company will give the Global Coordinator notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectuses, will furnish
the Global Coordinator with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not file
or use any such document to which the Global Coordinator or counsel for the U.S.
Underwriters shall reasonably object.
(3) Delivery of Registration Statements. The Company has furnished or will
deliver to the U.S. Representatives and counsel for the U.S. Underwriters,
without charge, signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the U.S. Representatives,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the U.S.
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(4) Delivery of Prospectuses. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter may reasonably
request. The U.S. Prospectus and any amendments or supplements thereto
furnished to the U.S. Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(5) Continued Compliance with Securities Laws. The Company will comply with
the 1933 Act and the 1933 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the U.S. Underwriters or
for the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933
16
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to the
U.S. Underwriters such number of copies of such amendment or supplement as the
U.S. Underwriters may reasonably request.
(6) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(7) Rule 158. The Company will timely file such reports pursuant to the 1934
Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(8) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds".
(9) Listing. The Company will use its best efforts to effect and maintain
the quotation of the Securities on the Nasdaq National Market or the listing of
the Securities on the New York Stock Exchange and will file with the Nasdaq
National Market or the New York Stock Exchange, as applicable, all documents and
notices required by such exchange of companies that have securities that are
traded in the over-the-counter market and quotations for which are reported by
the Nasdaq National Market or which are listed on the New York Stock Exchange,
as the case may be. The parties understand that this covenant shall terminate
upon a "going private transaction" or the sale or merger of the Company or
similar transaction.
(10) Restriction on Sale of Securities. During a period of 180 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, offer to sell,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any share of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock of
itself or any Subsidiary or file any
17
registration statement under the 1933 Act with respect to any of the foregoing,
except for filing a Registration Statement on Form S-4 to register 4,000,000
shares of Common Stock for future acquisitions, and filing a Registration
Statement on Form S-8 to register shares of Common Stock for issuance under the
Company Stock Option Plans, or (ii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Stock, whether any such swap
or transaction described in clause (i) or (ii) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (A) the Securities to be sold hereunder or
under the International Purchase Agreement, (B) any shares of Common Stock
issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectuses, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans or other stock
option plans of the Company referred to in the Prospectuses, or (D) up to
4,000,000 shares of Common Stock issued by the Company pursuant to a
Registration Statement on Form S-4.
(11) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(12) Compliance with NASD Rules. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The Underwriters will notify the
Company as to which persons will need to be so restricted. At the request of
the Underwriters, the Company will direct the transfer agent to place a stop
transfer restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the Reserved
Securities, the Company agrees to reimburse the Underwriters for any reasonable
expenses (including, without limitation, reasonable legal expenses) they incur
in connection with such release.
(13) Compliance with Rule 463. The Company will file with the Commission such
reports and report the use of proceeds of the sale of the Securities as may be
required pursuant to Rule 463 of the 1933 Act Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the
18
Underwriters, including any stock or other transfer taxes and any stamp or other
duties payable upon the sale, issuance or delivery of the Securities to the
Underwriters and the transfer of the Securities between the U.S. Underwriters
and the International Managers, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, (vii)
the preparation and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities, (x) the transportation and
other expenses incurred by the Company in connection with presentations to
prospective purchasers of the Securities, (xi) the fees and expenses incurred in
connection with the inclusion of the Securities in the Nasdaq National Market
and (xii) all costs and expenses of the Underwriters, including the reasonable
fees and disbursements of counsel for the Underwriters, in connection with
matters related to the Reserved Securities which are designated by the Company
for sale to employees and others having a business relationship with the
Company.
(1) Termination of Agreement. If this Agreement is terminated by the U.S.
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the U.S. Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters.
SECTION 5. Conditions of U.S. Underwriters' Obligations. The obligations of
--------------------------------------------
the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any Subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(1) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to
19
rely upon Rule 434, a Term Sheet shall have been filed with the Commission in
accordance with Rule 424(b).
(2) Opinions of Counsel for Company. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, a Professional Corporation, counsel for the
Company, (ii) Debevoise & ▇▇▇▇▇▇▇▇, special counsel for the Company, (iii)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel for the Company, (iv) ▇▇▇▇▇▇
▇▇▇▇, LLP, special counsel for the Company and (v) ▇▇▇▇▇▇▇, Procter & ▇▇▇▇, LLP,
special counsel for the Company, in each case in form and substance reasonably
satisfactory to counsel for the U.S. Underwriters, together with signed or
reproduced copies of each such letter for each of the other U.S. Underwriters to
the effect set forth in Exhibits A-1 to A-5 hereto and to such further effect as
counsel to the U.S. Underwriters may reasonably request.
(3) Opinion of Counsel for U.S. Underwriters. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for each
of the other U.S. Underwriters, in customary form and covering such matters as
the U.S. Underwriters may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the U.S. Representatives. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(4) Officers' Certificate. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S. Representatives shall
have received a certificate of the President or a Vice President of the Company
and of the chief financial or chief accounting officer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(5) Accountants' Comfort Letters. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and substance
reasonably satisfactory to the U.S. Representatives, together with
20
signed or reproduced copies of such letter for each of the other U.S.
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectuses.
(6) Bring-down Comfort Letters. At Closing Time, the Representatives shall
have received from PricewaterhouseCoopers LLP a letter, dated as of Closing
Time, to the effect that it reaffirms the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three business days prior to
Closing Time.
(7) Approval of Listing. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(8) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(9) Lock-up Agreements. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form of
Exhibit B hereto signed by substantially all of the stockholders and option
holders of any securities of the Company and its Subsidiaries except for those
agreed to in a writing and listed on Schedule C hereto.
(10) Purchase of Initial International Securities. Contemporaneously with the
purchase by the U.S. Underwriters of the Initial U.S. Securities under this
Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(11) GE Private Placement. The sale of 2,000,000 shares of Common Stock to
certain affiliates of General Electric Corporation shall close prior to or
simultaneously with the Closing Time without any material modifications from the
terms of the forms of agreements relating thereto reviewed by the Underwriters
and their counsel and without any modification from the description of such sale
in the Prospectuses.
(12) Conditions to Purchase of U.S. Option Securities. In the event that the
U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any Subsidiary of the Company hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the U.S. Representatives shall have received:
(1) Officers' Certificate. A certificate, dated such Date of Delivery,
---------------------
of the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing
21
Time pursuant to Section 5(d) hereof remains true and correct as of such Date
of Delivery.
(2) Opinions of Counsel for Company. The favorable opinion of each of
-------------------------------
(a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, a Professional Corporation, counsel for the Company, (b)
Debevoise & ▇▇▇▇▇▇▇▇, special counsel for the Company, (c) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, L.L.P., special counsel for the Company, (d) ▇▇▇▇▇▇ ▇▇▇▇, LLP, special
counsel for the Company and (e) ▇▇▇▇▇▇▇, Procter & ▇▇▇▇, LLP, special counsel
for the Company, in each case in form and substance reasonably satisfactory to
counsel for the U.S. Underwriters, dated such Date of Delivery, relating to
the U.S. Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Section 5(b) hereof.
(3) Opinion of Counsel for U.S. Underwriters. The favorable opinion of
----------------------------------------
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
(4) Bring-down Comfort Letters. A letter from PricewaterhouseCoopers
--------------------------
LLP in form and substance reasonably satisfactory to the U.S. Representatives
and dated such Date of Delivery, substantially in the same form and substance
as the letter furnished to the U.S. Representatives pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such Date of
Delivery.
(13) Additional Documents. At Closing Time and at each Date of Delivery,
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may reasonably require for the purpose of enabling them to
pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the U.S. Representatives and counsel for the U.S. Underwriters.
(14) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of U.S. Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several U.S. Underwriters to purchase the relevant Option
Securities, may be terminated by the U.S. Representatives by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to
any other party except as provided in Section 4 and except that Sections 1, 6, 7
and 8 shall survive any such termination and remain in full force and effect.
22
SECTION 6. Indemnification.
---------------
(1) Indemnification of U.S. Underwriters. The Company agrees to indemnify
and hold harmless each U.S. Underwriter and each person, if any, who controls
any U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
laws or regulations of foreign jurisdictions where Reserved Securities have
been offered and (B) any untrue statement or alleged untrue statement of a
material fact included in the supplement or prospectus wrapper (but only to
the extent the Company has prepared or has had the opportunity to approve any
wrapper) material distributed in Canada in connection with the reservation and
sale of the Reserved Securities to eligible employees and [ ] of the
Company or the omission or alleged omission therefrom of a material fact
necessary to make the statements therein, when considered in conjunction with
the Prospectuses or preliminary prospectuses, not misleading;
(3) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that (subject
to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(4) against any and all expense whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission
or in connection with any violation of
23
the nature referred to in Section 6(a)(ii)(A) hereof, to the extent that any
such expense is not paid under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representatives expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto); and
provided further that the Company will not be liable to any U.S. Underwriter
-------- -------
with respect to any U.S. Prospectus to the extent that the Company shall sustain
the burden of proving that any such loss, liability, claim, damage or expense
resulted from the fact that such U.S. Underwriter, in contravention of a
requirement of this Agreement or applicable law, sold Securities to a person to
whom such U.S. Underwriter failed to send or give, at or prior to the Closing
Date, a copy of the Final Prospectus, as then amended or supplemented if: (i)
the Company has previously furnished copies thereof (sufficiently in advance of
the Closing Date to allow for distribution by the Closing Date) to the U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter resulted from an untrue statement or omission of a material fact
contained in or omitted from the Preliminary Prospectus which was corrected in
the Final Prospectus as, if applicable, amended or supplemented prior to the
Closing Date and such Final Prospectus was required by law to be delivered at or
prior to the written confirmation of sale to such person and (ii) such failure
to give or send such Final Prospectus by the Closing Date to the party or
parties asserting such loss, liability, claim, damage or expense would have
constituted a defense to the claim asserted by such person.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of a U.S.
Underwriter or who controls an underwriter within the meaning of Section 15 of
1933 Act or Section 20 of the 1934 Act and who, at the date of this Agreement,
is a director or officer of the Company or controls the Company within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, such
indemnity agreement is subject to the undertaking of the Company in the
Registration Statement under Item [ ] thereof.
(2) Indemnification of Company, Directors and Officers. Each U.S. Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary U.S. prospectus or the U.S.
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such U.S.
Underwriter through the U.S. Representatives expressly for use in the
Registration
24
Statement (or any amendment thereto) or such preliminary prospectus or the U.S.
Prospectus (or any amendment or supplement thereto).
(3) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(4) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(iii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
25
(5) Indemnification for Reserved Securities. In connection with the offer and
sale of the Reserved Securities, the Company agrees, promptly upon a request, in
writing to indemnify and hold harmless the Underwriters from and against any and
all losses, liabilities, claims, damages and expenses incurred by them as a
result of the failure of eligible employees and friends of the Company to pay
for and accept delivery of Reserved Securities which, by the end of the first
business day following the date of this Agreement, were subject to a properly
confirmed agreement to purchase.
SECTION 7. Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the U.S. Underwriters on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the U.S.
Underwriters on the other hand in connection with the statements or omissions,
or in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, which resulted in such losses, liabilities, claims, damages
or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the U.S.
Underwriters on the other hand in connection with the offering of the U.S.
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the U.S.
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the U.S. Prospectus, or,
if Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the U.S. Securities as set forth on
such cover.
The relative fault of the Company on the one hand and the U.S. Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or any violation of the nature referred to in Section
6(a)(ii)(A) hereof.
The Company and the U.S. Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the U.S. Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any
26
reasonable legal or other expenses incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the U.S. Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
U.S. Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any U.S. Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the U.S. Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(1) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the U.S. Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such
27
as to make it, in the judgment of the U.S. Representatives, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(2) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the U.S. Underwriters. If one or more
-----------------------------------------------
of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(1) if the number of Defaulted Securities does not exceed 10% of the number of
U.S. Securities to be purchased on such date, each of the non-defaulting U.S.
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting U.S.
Underwriters, or
(2) if the number of Defaulted Securities exceeds 10% of the number of U.S.
Securities to be purchased on such date, this Agreement or, with respect to any
Date of Delivery which occurs after the Closing Time, the obligation of the U.S.
Underwriters to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company to sell the relevant U.S. Option
Securities, as the case may be, either the U.S. Representatives or the Company
shall have the right to postpone Closing Time or the relevant Date of Delivery,
as the
28
case may be, for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "U.S. Underwriter" includes
any person substituted for a U.S. Underwriter under this Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the U.S. Underwriters
shall be directed to the U.S. Representatives at North Tower, World Financial
Center, New York, New York 10281-1201, attention of [ ] with a copy to
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇; and notices to the Company shall be
directed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ with copies to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, One
Buckhead Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and
-------
be binding upon the U.S. Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the U.S.
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the U.S. Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any U.S.
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
----------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
29
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the U.S. Underwriters and the Company in accordance with its terms.
Very truly yours,
IXL ENTERPRISES, INC.
By__________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By________________________________
Name:
Title:
For themselves and as U.S. Representatives of the
other U.S. Underwriters named in Schedule A hereto.
30
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ....................................................
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation ..............
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. ...............................
▇▇ ▇▇▇▇▇ Securities Corporation ..................................
----------
Total ............................................................ [ ]
=========
Sch A-1
SCHEDULE B
IXL ENTERPRISES, INC.
[ ] Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $[ ], being an amount equal to the initial
public offering price set forth above less $[ ] per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch B-1
SCHEDULE C
List of persons and entities
not subject to lock-up
Sch C-1
Exhibit A-1
FORM OF OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(1) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(2) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted
and as described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreement.
(3) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule A
attached hereto which to our knowledge is each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect.
(4) On December 31, 1998 and Pro Forma for issuances of capital stock
occurring between January 1, 1999 and the Closing, the authorized, issued
and outstanding capital stock of the Company was and is as described in the
Prospectuses under the caption entitled "Capitalization" and, after giving
effect to the offering will be as described as Pro Forma as Adjusted under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements, or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses and except for 4,000,000 shares of Common Stock
registered pursuant to a shelf Registration Statement on Form S-4 for use
in future acquisitions). The number of authorized, issued and outstanding
options and other rights to acquire capital stock is as described under
such caption. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and to our knowledge none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any security holder of the Company. Except as
disclosed in the Prospectuses, to our knowledge, there are no outstanding
options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or, any
contracts or commitments to issue or sell, shares of the Company's or its
A-1-1
Subsidiaries' capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock option
and purchase plans, and the options or other rights granted and exercised
thereunder, set forth in the Prospectuses accurately and fairly presents in
all material respects the information required to be shown with respect to
such plans, options and rights.
(5) The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreements and, when issued and
delivered by the Company pursuant to the Purchase Agreements against
payment of the consideration set forth in the Purchase Agreements, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability by reason of being
such a holder. The Common Stock conforms in all material respects as to
legal matters to all statements relating thereto contained in the
Prospectuses and such descriptions conform to the rights set forth in the
instruments defining the same.
(6) To our knowledge, the issuance of the Securities is not subject to
preemptive rights, co-sale rights, registration rights, right of first
refusal or similar rights of any security holder of the Company and the
Securities will be sold free and clear of all liens, encumbrances, equities
or claims.
(7) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction listed on Schedule A attached hereto
which to our knowledge is each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not reasonably be expected to result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to our knowledge, is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; to our knowledge none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary or other party. To our knowledge, except as described in
the Prospectuses or except as not required to be disclosed in the
Prospectuses, the Company has no written agreement, commitment or
understanding with respect to acquiring the business, stock, or material
assets, except assets acquired in the ordinary course of business, of any
other person or entity.
(8) The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
A-1-2
(9) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectuses pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(10) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses and each amendment or supplement to the
Registration Statement and Prospectuses as of their respective effective or
issue dates (other than the financial statements and notes thereto, other
financial information and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(11) If Rule 434 has been relied upon, the Prospectuses were not
"materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective.
(12) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable requirements of the General
Corporation Law of the State of Delaware, with any applicable requirements
of the charter and by-laws of the Company and the requirements of the
Nasdaq National Market.
(13) To our knowledge, other than as set forth in the Prospectuses,
there is not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any Subsidiary is a party, or to
which the property of the Company or any Subsidiary is subject, before or
brought by any court or governmental agency or body (domestic or foreign),
which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the Company
of its obligations thereunder.
(14) The information in the Prospectuses under (A) "Certain
Transactions," and "Management" and (B) in the Registration Statement under
Item 14, to the extent that it constitutes matters of law, summaries of
legal matters, the Company's charter and by-laws or legal proceedings, or
legal conclusions, has been reviewed by us and is correct in all material
respects.
A-1-3
(15) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
(16) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its Subsidiaries are a party are
accurate in all material respects; to our knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in the
Registration Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are
correct in all material respects.
(17) To our knowledge, neither the Company nor any Subsidiary is in
violation of its charter or by-laws.
(18) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any federal or Georgia
court or governmental authority or agency, (other than under the 1933 Act
and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
which have been obtained, or as may be required under the securities or
blue sky laws of the various states, as to which we need express no
opinion) is necessary or required to be obtained by the Company or any of
its Subsidiaries in connection with the due authorization, execution and
delivery of the Purchase Agreement or for the offering, issuance or sale of
the Securities to the Underwriters.
(19) The execution, delivery and performance of the Purchase Agreements
and the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Purchase Agreements do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreements) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument listed on the Exhibit Index to the S-1 Registration Statement,
to which the Company or any Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company
or any Subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not reasonably be
expected to have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any Subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or material decree, known
A-1-4
to us, of the General Corporation Law of the State of Delaware, any Georgia
or United States federal court, government or government instrumentality
having jurisdiction over the Company or any Subsidiary or any of their
respective properties, assets or operations.
(20) To our knowledge, except as described in the Prospectuses, there
are no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(21) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
1940 Act.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectuses, except to the limited extent stated in paragraph
4, the second sentence of paragraph 5, paragraph 14 and the first clause of
paragraph 16 above. In the course of our review and discussion of the contents
of the Registration Statement and the Prospectuses with certain officers and
employees of the Company and its independent accountants, but without
independent check or verification, no facts have come to our attention which
cause us to believe that the Registration Statement (other than the financial
statements and notes thereto, other financial information and supporting
schedules contained therein or omitted therefrom, as to which we express no
belief), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein not misleading, or that
the Prospectuses (other than the financial statements and notes thereto, other
financial information and supporting schedules contained therein or omitted
therefrom, as to which we express no belief), as of their dates and as of the
date hereof, contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF DEBEVOISE & ▇▇▇▇▇▇▇▇
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(22) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(23) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
Purchase Agreements.
(24) The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreements and, when issued and
delivered by the Company pursuant to the Purchase Agreements against
payment of the consideration set forth in the Purchase Agreements, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability by reason of being
such a holder. The Common Stock conforms in all material respects as to
legal matters to the statements relating thereto contained under the
caption "Description of Capital Stock" in the Prospectuses.
(25) CFN has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and
has the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses.
(26) The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
(27) The Registration Statement[, including any Rule 462(b) Registration
Statement,] has been declared effective under the 1933 Act; the
Prospectuses have been filed with the Commission pursuant to Rule
424(b)(_); and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statement [or any Rule 462(b)
Registration Statement] has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or
threatened by the Commission.
(28) The Registration Statement, including [any Rule 462(b) Registration
Statement,] the Rule 430A Information [and the Rule 434 Information, as
applicable], the Prospectuses and each amendment or supplement to the
Registration Statement and
A-2-1
Prospectuses as of their respective effective or issue dates (other than
the financial statements and notes thereto, other financial information and
supporting schedules included therein or omitted therefrom, as to which we
need express no opinion) complied as to form in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations.
(29) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable requirements of the General
Corporation Law of the State of Delaware, with any applicable requirements
of the charter and by-laws of the Company and the requirements of the
Nasdaq National Market.
(30) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any United States federal
or New York State court or governmental authority or agency, (other than
under the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need
express no opinion) is necessary or required to be made or obtained by the
Company or any of its Subsidiaries in connection with the due
authorization, execution and delivery of the Purchase Agreements or for the
offering, issuance or sale of the Securities to the Underwriters.
(31) To our knowledge, the execution, delivery and performance of the
Purchase Agreements and the consummation of the transactions contemplated
in the Purchase Agreements and compliance by the Company with its
obligations under the Purchase Agreements do not and will not, whether with
or without the giving of notice or lapse of time or both, result in any
violation of any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any, court, government or government
instrumentality of New York having jurisdiction over the Company or any
Subsidiary or any of their respective properties, assets or operations.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectuses, except to the limited extent stated in the second
sentence of paragraph 3 above. In the course of our review and discussion of
the contents of the Registration Statement and the Prospectuses with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to our attention
which cause us to believe that the Registration Statement (other than the
financial statements and notes thereto, other financial information and
supporting schedules contained therein or omitted therefrom, as to which we
express no belief), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, or that the Prospectuses (other than the financial statements and
notes thereto, other financial information and supporting schedules contained
therein or omitted therefrom, as to which
A-2-2
we express no belief), as of their dates and as of the date hereof, contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein, in the light of the circumstances
under which they were made, not misleading.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
TO BE DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business" and "Business--Government
Regulation," only insofar as those statements constitute a summary of
principles of insurance laws or regulations applicable to the CFN
Agency, Inc. business fairly and accurately represent the material
insurance laws and regulations applicable to the operation of CFN
Agency, Inc. business and, to the best of our actual knowledge, there
are no state insurance statutes or regulations material to the
operation of CFN Agency, Inc. business that are required to be
described in the Prospectuses that are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that
the statements made in the Prospectuses under the captions "Risk
Factors-Government Regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business" and "Business--Government
Regulation" at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, only insofar as those statements
constitute a summary of principles of state insurance laws or
regulations to the CFN Agency, Inc. business.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF
▇▇▇▇▇▇ ▇▇▇▇, LLP TO BE
DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business" and "Business--Government
Regulation," insofar as those statements constitute a summary of
principles of auto loan broker laws or regulations applicable to the
business of CFN, fairly and accurately represent the material auto
loan broker laws and regulations applicable to the operation CFN's
business and to the best of our knowledge, there are no statutes or
regulations material to the operation of CFN's auto loan broker
business that are required to be described in the Prospectuses that
are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that
the statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business" and "Business--Government
Regulation," at the time the Registration Statement became effective
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as those statements
constitute a summary of principles of auto loan broker laws or
regulations applicable to the business of CFN.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF OPINION OF
▇▇▇▇▇▇▇, PROCTER & ▇▇▇▇, LLP
DELIVERED PURSUANT TO
SECTION 5(b)
(i) The statements made under "Risk Factors--Risks Relating to Our CFN
Subsidiary--Government regulation and Legal Uncertainties Related to
CFN Could Adversely Affect Our Business." and "Business--Consumer
Financial Network-- Government Regulation of Insurance, Auto Finance
and Mortgages" (the "Risk Factor Information") contained in the
Prospectus regarding residential mortgage issues insofar as those
statements constitute a summary of principles of mortgage loan laws or
regulations applicable to the business of CFN, fairly and accurately
represent the material mortgage loan laws and regulations applicable
to the operation of the CFN home finance program; and
(ii) On the basis of the information that we have gained in the course
of participating in the preparation of the Risk Factor Information,
nothing has come to our attention that would lead us to believe that
the statements made regarding residential mortgage issues in the Risk
Factor Information (i) in the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, insofar as
those statements constitute a summary of the principles of mortgage
loan laws or regulations applicable to the CFN home finance program,
or (ii) in the Prospectus, at the time the Prospectus was issued or at
the initial closing of the Offering, included or includes an untrue
statement of a material fact or omitted or omits 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
insofar as those statements constitute a summary of the principles of
mortgage loan laws or regulations applicable to the CFN home finance
program. In rendering such opinion, we have relied as to matters of
fact (but not as to legal conclusions), to the extent we have deemed
proper, on certificates or affidavits of responsible officers of the
Company.
A-5-1
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(I)]
Exhibit B
[ ], 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by IXL Enterprises, Inc.
-------------------------------------------------
Dear Sirs:
The undersigned, a security holder of IXL Enterprises, Inc., a Delaware
corporation (the "Company") or none of its Subsidiaries (as such term is defined
in the Purchase Agreement (as defined herein)), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation, NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC and BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. propose to enter into a
Purchase Agreement (the "Purchase Agreement") with the Company providing for the
public offering of shares (the "Securities") of the Company's common stock, par
value $.01 per share (the "Common Stock"). In recognition of the benefit that
such an offering will confer upon the undersigned as a security holder of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of 180
days from the date of the Purchase Agreement, the undersigned will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) offer to
sell, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company's
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or file or cause to be filed any registration statement under the
Securities Act of 1933, as amended, with respect to any of the foregoing or (ii)
enter into any swap
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or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise.
The foregoing paragraph shall not apply to (a) transactions by any
person other than the Company relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
public offering provided for in the Purchase Agreement or (b) transfers of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock to a member of the undersigned's immediate family or to a trust
of which the undersigned or an immediate family member is the beneficiary
(either one a "Transferee") provided that upon any such transfer, the Transferee
shall sign a letter substantially similar to this letter agreement agreeing not
to sell, grant any option to purchase, or otherwise transfer or dispose of any
such Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for the remainder of the above-referenced 180-day
period.
The undersigned agrees that the provisions of this Agreement shall be
binding also upon the successors, assigns, heirs and personal representatives of
the undersigned and that any registration rights with respect to the offering of
Securities contemplated by the Purchase Agreement have been hereby waived.
Very truly yours,
Signature:_____________________________
Print Name: ___________________________
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