EXHIBIT 1.1
IXL ENTERPRISES, INC.
(a Delaware corporation)
5,600,000 Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
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Dated: November 18, 1999
Table of Contents
Page
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U.S. PURCHASE AGREEMENT 1
SECTION 1. Representations and Warranties 3
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(a) Representations and Warranties by the Company 3
(b) Representations and Warranties by the Selling Shareholders 13
(c) Officer's Certificates 15
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing 16
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(a) Initial Securities 16
(b) Option Securities 16
(c) Payment 16
(d) Denominations; Registration 17
SECTION 3. Covenants of the Company 17
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(a) Compliance with Securities Regulations and Commission Requests 17
(b) Filing of Amendments 18
(c) Delivery of Registration Statements 18
(d) Delivery of Prospectuses 18
(e) Continued Compliance with Securities Laws 19
(f) Blue Sky Qualifications 19
(g) Rule 15819 19
(h) Use of Proceeds 19
(i) Listing 20
(j) Restriction on Sale of Securities 20
(k) Reporting Requirements 20
(l) Compliance with Rule 463 20
SECTION 4. Payment of Expenses 20
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(a) Expenses 20
(b) Expenses of the Selling Shareholders 21
(c) Termination of Agreement 21
(d) Allocation of Expenses 21
SECTION 5. Conditions of U.S. Underwriters' Obligations 21
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(a) Effectiveness of Registration Statement 21
(b) Opinions of Counsel for Company 22
(c) Opinion of Counsel for the Selling Shareholders 22
(d) Opinion of Counsel for U.S. Underwriters 22
(e) Officers' Certificate 22
(f) Certificate of Selling Shareholders 23
(g) Accountants' Comfort Letters 23
(h) Bring-down Comfort Letters 23
(i) Approval of Listing 23
(j) No Objection 23
(k) Lock-up Agreements 23
(l) Purchase of Initial International Securities 23
(m) Conditions to Purchase of International Option Securities 24
(n) Additional Documents 24
(o) Termination of Agreement 25
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SECTION 6. Indemnification 25
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(a) Indemnification of U.S. Underwriters by the Company and Certain
Selling Shareholders 25
(b) Indemnification of U.S. Underwriters by Selling Shareholders Not
Listed on Schedule E hereto 26
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders 27
(d) Actions against Parties; Notification 27
(e) Settlement without Consent if Failure to Reimburse 28
(f) Order of Priority for Indemnification 28
(g) Other Agreements with Respect to Indemnification 28
SECTION 7. Contribution 28
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery 30
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SECTION 9. Termination of Agreement 30
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(a) Termination; General 30
(b) Liabilities 30
SECTION 10. Default by One or More of the U.S. Underwriters 31
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SECTION 11. Default by One or More of the Selling Shareholders or the Company 31
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SECTION 12. Notices 32
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SECTION 13. Parties 32
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SECTION 14. GOVERNING LAW AND TIME 33
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SECTION 15. Effect of Headings 33
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SCHEDULE A Sch A-1
SCHEDULE B Sch ▇-▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇ ▇-▇
SCHEDULE E Sch E-1
Exhibit ▇-▇ ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇ ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇ ▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇ ▇-▇-▇
▇▇▇▇▇▇▇ B B-1
Exhibit C C-1
ii
IXL ENTERPRISES, INC.
(a Delaware corporation)
5,600,000 Shares of Common Stock
(Par Value $0.01 Per Share)
U.S. PURCHASE AGREEMENT
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November 18, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
First Union Securities, Inc.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
as U.S. Representatives of the several U.S. Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
iXL Enterprises, Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders") confirm their
respective agreements 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, BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., First Union
Securities, Inc., and The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC are acting as
representatives (in such capacity, the "U.S. Representatives"), with respect to
(i) the sale by the Company and Selling Shareholders, acting severally and not
jointly, and the purchase by the U.S. Underwriters, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $0.01
per share, of the Company ("Common Stock") set forth in Schedules A and B
hereto, and (ii) 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 840,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 5,600,000 shares of Common Stock (the
"Initial U.S. Securities") to be purchased by the U.S. Underwriters and all or
any part of the 840,000 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 sale by the Company and the Selling Shareholders of an
aggregate of 1,400,000 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 & ▇▇▇▇▇▇▇▇ International, BancBoston ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ International Ltd and
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The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC 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 210,000 additional shares of
Common Stock solely to cover over-allotments, 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 has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-88847) 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." 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 November 4, 1999 and preliminary
International Prospectus dated November 4, 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
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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 the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
1. SECTION Representations and Warranties.
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2.
(a) 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:
(i) Compliance with Registration Requirements. Each of the Registration
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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. 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 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.
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(i) Independent Accountants. The accountants who certified the financial
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statements and supporting schedules included in the Registration Statement
are independent public accountants as required by the 1933 Act and the 1933
Act Regulations.
(i) Financial Statements. The financial statements of the Company and its
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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 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.
(i) 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.
(i) No Material Adverse Change in Business. Since the respective dates as
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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.
(i) Good Standing of the Company. The Company has been duly incorporated
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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.
(i) Good Standing of Subsidiaries. Each subsidiary of the Company (other
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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 corporaton 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 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 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 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.
(i) Capitalization. The authorized, issued and outstanding capital stock
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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 except for 10,000,000 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.
(i) Authorization of Agreement. This Agreement and the International
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Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(i) 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 and the Selling Shareholders 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; the
issuance of the Securities is not subject to preemptive rights, co-sale
rights, rights of first refusal or similar rights of any security holder of
the Company or other party and, except as disclosed in the Registration
Statement, the issuance of the Securities is not subject to registration
rights. The Securities will be sold free and clear of all liens,
encumbrances, equities or claims.
(i) Absence of Defaults and Conflicts. Neither the Company nor any of its
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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
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.
(i) Absence of Labor Dispute. No labor dispute with the employees of the
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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.
(i) Absence of Proceedings. There is no action, suit, proceeding, inquiry
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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.
(i) Accuracy of Exhibits. There are no contracts or documents which are
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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.
(i) Possession of Intellectual Property. The Company and its Subsidiaries
-----------------------------------
own or possess or have access to adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), 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.
(i) 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 or (ii)
such as have been described in the Registration Statement.
(i) 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.
(i) 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 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
on 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.
(i) 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.
(i) 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
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.
(i) 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.
(i) 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").
(i) 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.
(i) 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.
(i) 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.
(i) 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.
(i) 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.
(a) Representations and Warranties by the Selling Shareholders . Each
Selling Shareholder (except in the case of Section 1(b)(i)(1) hereto, only each
such Selling Shareholder listed on Schedule E hereto) severally represents and
warrants to each Underwriter as of the date hereof, and as of the Closing Time,
and agrees with each Underwriter, as follows:
(b)
(i) Accurate Disclosure.
-------------------
(1) In the case of each such Selling Shareholder listed on
Schedule E hereto, to the best knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; such Selling Shareholder has reviewed
and is familiar with the Registration Statement and the Prospectus and neither
the Prospectus nor any amendments or supplements thereto includes any untrue
statement of a material fact 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; such Selling Shareholder is not prompted
to sell the Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any Subsidiary which is not set forth in
the Prospectus.
(2) In the case of each such Selling Shareholder not listed on
Schedule E hereto, the written information furnished by such Selling Shareholder
to the Company expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) does not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(i) Authorization of Agreements. Each Selling Shareholder has the full
---------------------------
right, power and authority to enter into this Agreement and a Custody
Agreement and Power of Attorney (the "Power of Attorney and Custody
Agreement") and to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and compliance by such
Selling Shareholder with its obligations hereunder have been duly
authorized by such Selling Shareholder 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 material breach of, or material default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Shareholder or
any property or assets of such Selling Shareholder pursuant to any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be bound,
or to which any of the property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of the provisions of
the charter or by-laws or other organizational instrument of such Selling
Shareholder, if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties.
(i) Good and Marketable Title. Such Selling Shareholder has and will at
-------------------------
the Closing Time have good and marketable title to the Securities to be
sold by such Selling Shareholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and marketable title to
the Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind.
(i) Due Execution of Power of Attorney and Custody Agreement. Such
--------------------------------------------------------
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Power of Attorney and Custody
Agreement with U. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. and M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as attorneys-in-
fact (each, an "Attorney-in-Fact") and SunTrust Bank, Atlanta, as
depositary (the "Depositary"); the Depositary is authorized to deliver the
Securities to be sold by such Selling Shareholder hereunder and to accept
payment therefor; and the Attorney-in-Fact is authorized to execute and
deliver this Agreement and the certificate referred to in Section 5(f) or
that may be required pursuant to Section 5(n) on behalf of such Selling
Shareholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling Shareholder hereunder, to determine
the purchase price to be paid by the Underwriters to such Selling
Shareholder, as provided in Section 2(a) hereof, to authorize the delivery
of the Securities to be sold by such Selling Shareholder hereunder, to
accept payment therefor, and otherwise to act on behalf of such Selling
Shareholder in connection with this Agreement.
(i) Absence of Manipulation. Such Selling Shareholder has not taken, and
-----------------------
will not take, directly or indirectly, any action which is designed to or
which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(i) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as may have previously been made or obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(i) Restriction on Sale of Securities. During a period of 90 days from
---------------------------------
the date of the Prospectus, such Selling Shareholder 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 transfer or dispose of any share
of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, whether owned as of the date hereof or
hereafter acquired by such Selling Shareholder or with respect to which
such Selling Shareholder has or hereafter acquires the power of
disposition, or file or cause to be filed any registration statement under
the 1933 Act with respect to any of the foregoing 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) transactions by any person other than the Company relating to
registered shares of Common Stock or other securities acquired in open
market transactions or (b) transfers of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock to a
member of such Selling Shareholder's immediate family or to a trust of
which such Selling Shareholder 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 the
letter agreement set forth as Exhibit C hereto 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 90-day period.
(i) Certificates Suitable for Transfer. Certificates for all of the
----------------------------------
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Depositary with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(i) No Association with NASD. Neither such Selling Stockholder nor any of
------------------------
its affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has any
other association with (within the meaning of Article I, Section 1(m) of
the By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(a) 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; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the
Representatives or to counsel for the Underwriters pursuant to the terms of this
Agreement shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriters as to the matters covered thereby.
1. SECTION Sale and Delivery to U.S. Underwriters; Closing.
-----------------------------------------------
2.
(a) Initial Securities. On the basis of the representations and warranties
------------------
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, 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 and each Selling
Shareholder, at the price per share set forth in Schedule C, that proportion of
the number of Initial U.S. Securities set forth in Schedule B opposite the name
of the Company or such Selling Shareholder, as the case may
be, which the number of the Initial Securities set forth in Schedule A opposite
the name of the 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, bears to the total number of Initial
Securities, subject in each case, to such adjustments among the Underwriters as
the Representatives in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(a) 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 840,000 shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, 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.
(b)
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇
& ▇▇▇▇▇▇, One Buckhead Plaza, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the Global Coordinator
and the Company and the Selling Shareholders, 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 and the Selling Shareholders (such time and date of payment and delivery
being herein called "Closing Time").
(d)
(e) 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 and the Selling Shareholders, on each
Date of Delivery as specified in the notice from the Global Coordinator to the
Company and the Selling Shareholders.
(f)
(g) Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to the bank accounts designated by
the Company and the Depositary pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the U.S.
Representatives for 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.
(h)
(i) 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.
1. SECTION Covenants of the Company. The Company covenants with each
------------------------
U.S. Underwriter as follows:
(a) 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.
(b)
(c) 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.
(d)
(e) 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.
(f)
(g) 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.
(h)
(i) 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 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.
(j)
(k) 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.
(l) 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.
(m)
(n) 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".
(o)
(p) 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.
(q)
(r) Restriction on Sale of Securities . During a period of 90 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, 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 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 registration statement under the 1933
Act with respect to any of the foregoing, 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, (D) the filing of
Registration Statements on Form S-4 covering up to 10,000,000 shares of Common
Stock to be issued by the Company, or (E) the filing of a Registration Statement
on Form S-8 covering up to 41,000,000 shares of Common Stock granted under the
Company's stock option plans, plus additional shares to be registered under the
Tessera Stock Option Plan to be assumed by the Company.
(s)
(t) 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.
(u)
(v) 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.
(i) SECTION Payment of Expenses. Expenses. The Company will pay all
-------------------
expenses incident to the performance of its obligations under this Agreement,
including the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, 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, the preparation, issuance and delivery of the certificates
for the Securities to the 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, the fees and disbursements
of the Company's counsel, accountants and other advisors, 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, 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, the preparation and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, the
fees and expenses of any transfer agent or registrar for the Securities, 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, the transportation and other expenses incurred by the Company in
connection with presentations to prospective purchasers of the Securities and
the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(a) Expenses of the Selling Shareholders. The Selling Shareholders, severally
and not jointly, will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (ii) the fees and disbursements of
their respective counsel and accountants.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company and the Selling Shareholders shall reimburse
the Underwriters for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
(c)
(d) Allocation of Expenses. The provisions of this Section shall not affect any
agreement that the Company and the Selling Shareholders may make for the sharing
of such costs and expenses.
1. SECTION 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 and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any Subsidiary of the Company or on behalf of any Selling Shareholder
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:
(a) 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 rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b)
(c) 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)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel for the Company, (iii) ▇▇▇▇▇▇
▇▇▇▇, LLP, special counsel for the Company and (iv) ▇▇▇▇▇▇▇, 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-4 hereto and to such
further effect as counsel to the U.S. Underwriters may reasonably request.
(d)
(e) Opinion of Counsel for the Selling Shareholders. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of counsel for each of the Selling Shareholders, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letters for each of the other Underwriters to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(f)
(g) 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.
(h)
(i) 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.
(j)
(k) Certificate of Selling Shareholders. At Closing Time, the Representatives
shall have received a certificate of an Attorney-in-Fact on behalf of each
Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of each Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(l)
(m) 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 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.
(n)
(o) 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 (g) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to Closing Time.
(p)
(q) 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.
(r)
(s) 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.
(t)
(u) Lock-up Agreements. At the date of this Agreement, the U.S. Representatives
shall have received an agreement substantially in the form of Exhibit C hereto
signed by the stockholders and option holders of any securities of the Company
and its Subsidiaries listed on Schedule D hereto.
(v)
(w) 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.
(x)
(y) 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 and the Selling Shareholders contained herein and
the statements in any certificates furnished by the Company or any Subsidiary of
the Company and the Selling Shareholders 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:
(z)
(i) 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 Time pursuant to Section 5(d) hereof remains true
and correct as of such Date of Delivery.
(i) Opinions of Counsel for Company. The favorable opinion of each of (a)
-------------------------------
▇▇▇▇▇▇ & ▇▇▇▇▇▇, a Professional Corporation, counsel for the Company, (b)
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., special counsel for the Company, (c)
▇▇▇▇▇▇ ▇▇▇▇, LLP, special counsel for the Company and (d) ▇▇▇▇▇▇▇, 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.
(i) 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.
(i) 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.
(a) 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 and the Selling Shareholders 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.
(b)
(c) 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.
1. SECTION Indemnification.
---------------
2.
(a) Indemnification of U.S. Underwriters by the Company and Certain Selling
Shareholders. The Company and the Selling Shareholders listed on Schedule E
hereto, jointly and severally, agree 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:
(i) 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;
(i) 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; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company and the counsel for the Selling Shareholders; and
(i) 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, to the extent that any such expense is not paid under (i) or (ii)
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); provided, however, that no such Selling
-------- -------
Shareholder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Selling Shareholder from the sale
of Securities pursuant to this Agreement; and provided further that the
-------- -------
Company and such Selling Shareholders will not be liable to any U.S.
Underwriter with respect to any U.S. Prospectus to the extent that the
Company or such Selling Shareholders 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 14 thereof.
(a) Indemnification of U.S. Underwriters by Selling Shareholders Not Listed on
Schedule E hereto. Each Selling Shareholder (other than those Selling
Shareholders listed on Schedule E hereto, which shareholders are subject to the
provisions of Section 6(a) hereof) severally, but not jointly, agrees to
indemnify and hold harmless each U.S. Underwriter and the other Selling
Shareholders, and each of their respective directors and officers, and each
person, if any, who controls any U.S. Underwriter or any other Selling
Shareholder 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 Section 6(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, contained 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 with respect to such Selling Shareholder
furnished to the Company by such Selling Shareholder expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto); provided,
--------
however, that no such Selling Shareholder shall be liable for any claims
-------
hereunder in excess of the amount of net proceeds received by such Selling
Shareholder from the sale of Securities pursuant to this Agreement.
(b)
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. 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 and each
Selling Shareholder and each person, if any, who controls any Selling
Shareholder 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 Statement (or any amendment thereto) or such preliminary prospectus
or the U.S. Prospectus (or any amendment or supplement thereto).
(d)
(e) 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 Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇,
and, in the case of parties indemnified pursuant to Section 6(c) 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.
(f)
(g) 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)(ii) 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.
(h)
(i) Order of Priority for Indemnification. The U.S. Underwriters shall seek
indemnification to which they are entitled under Sections 6(a) and 6(b) hereof
or contribution under Section 7 hereof first from the Company. In the event that
the U.S. Underwriters are unable (or reasonably believe they will be unable to)
obtain such indemnification or contribution from the Company, the U.S.
Underwriters may then seek indemnification or contribution from the Selling
Shareholders.
(j)
(k) Other Agreements with Respect to Indemnification. The provisions of this
Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
1. SECTION 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 and the
Selling Shareholders 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 and the
Selling Shareholders on the one hand and of the U.S. Underwriters on the other
hand in connection with the statements or omissions, which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
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 Selling Shareholders 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 public offering
price of the U.S. Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders 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 and the Selling Shareholders
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.
The Company, the Selling Shareholders 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 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, (x) 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 and (y) no
Selling Shareholder shall be required to contribute any amount in excess of such
Selling Shareholder's net proceeds (after deducting the underwriting discount,
but before deducting expenses) from the sale of Securities pursuant to this
Agreement.
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 or any Selling Shareholder 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 or such Selling Shareholder, as the case may be. 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.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
1. SECTION 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 or the
Selling Shareholders 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 or
the Selling Shareholders, and shall survive delivery of the Securities to the
U.S. Underwriters.
1. SECTION Termination of Agreement.
------------------------
2.
(a) Termination; General. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, 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 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.
(a) 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.
1. SECTION 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:
(a) 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
(b)
(c) 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.
(d)
(e) No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of its default.
(f)
(g) 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
and any Selling Shareholder shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the 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.
1. SECTION Default by One or More of the Selling Shareholders or the Company.
------------------------------------------------------------------
2.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of Securities to be sold by them
hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company and the non-
defaulting Selling Shareholders, either (a) terminate this Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholders and the
Company have agreed to sell hereunder. No action taken pursuant to this Section
11 shall relieve any Selling Shareholder so defaulting from liability, if any,
in respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section 11, each of the Representatives, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(a) If the Company shall fail at Closing Time or at the Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any nondefaulting
party; provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall
remain in full force and effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
1. SECTION 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, 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, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇; notices to the Selling Shareholders shall be directed to the Company at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of M. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
with copies to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, One Buckhead Plaza, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. SECTION Parties. This Agreement shall each inure to the benefit of and be
-------
binding upon the U.S. Underwriters, the Company and the Selling Shareholders 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, the Company and the Selling Shareholders 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, the Company and the Selling Shareholders 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.
1. SECTION 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.
1. SECTION 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.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the U.S. Underwriters, the
Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
IXL ENTERPRISES, INC.
By
Name:
Title:
By
As Attorney-in-Fact on behalf of the
Selling Shareholders named in Schedule B
hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇ SECURITIES
CORPORATION
BANCBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
FIRST UNION SECURITIES, INC.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, LLC
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.
SCHEDULE A
Number of
Initial U.S.
Name of Underwriter Securities
------------------- ------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 1,540,000
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation 1,540,000
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. 660,000
First Union Securities, Inc. 330,000
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC 330,000
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC 150,000
ING Baring ▇▇▇▇▇▇ ▇▇▇▇ LLC 150,000
▇▇ ▇▇▇▇▇ Securities Corporation 150,000
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 150,000
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated 150,000
First Albany Corporation 150,000
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & Company, LLC 150,000
Wit Capital Corporation 150,000
---------
Total: 5,600,000
1
SCHEDULE B
Number of Maximum Number
Initial U.S. of U.S.
Securities Option
to be Sold Securities to
Be Sold
------------------- ----------------
IXL ENTERPRISES, INC. 1,600,000 840,000
SELLING SHAREHOLDERS
General Capital Assurance Company 50,370 --
GE Capital Equity Investments, Inc. 402,960 --
General Electric Pension Trust 100,740 --
▇▇▇▇▇ ▇. ▇▇▇▇ 402,962 --
▇▇▇▇▇ ▇. ▇▇▇▇▇ 241,775 --
▇▇▇▇▇ ▇. ▇▇▇▇▇ 89,094 --
@▇▇▇▇▇▇▇.▇▇▇▇▇, Inc. 805 --
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ 58,623 --
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust 40,296 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 20,148 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 6,044 --
▇▇▇ ▇▇▇▇ 2,014 --
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 4,030 --
▇▇▇▇▇▇ ▇▇▇▇ 110,813 --
▇▇▇▇▇▇ ▇. ▇▇▇▇ 74,547 --
▇▇▇▇ ▇▇▇▇ 4,835 --
▇▇▇▇▇▇ ▇▇▇▇▇▇ 26,192 --
▇▇▇▇▇▇ ▇▇▇▇ (Trustee of the ▇▇▇▇ Family Trust 1,482 --
dated 8/17/82)
▇▇▇▇▇▇ Technology Partners, Ltd. 2,080 --
▇▇▇▇ ▇▇▇▇ 4,030 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 4,030 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ 1,007 --
▇▇▇▇▇▇ ▇▇▇▇▇▇ 20,148 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 40,296 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 40,747 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 20,148 --
▇▇▇ Technology Investments, Inc. 80,592 --
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 18,133 --
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,029 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Estate of) 10,880 --
▇▇▇ ▇▇▇▇▇▇▇▇ 30,221 --
▇▇▇▇▇ ▇▇▇▇▇ 3,042 --
▇▇▇▇▇▇ ▇. ▇▇▇▇ 2,014 --
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,612 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,007 --
1
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2,014 --
▇▇▇▇ Partners 80,592 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ 161,183 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 53,726 --
▇▇▇▇▇▇ ▇. ▇▇▇ 4,271 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 40,296 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,835 --
▇▇▇▇▇▇ Gear 605 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,834 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 6,094 --
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1,612 --
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 6,044 --
▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇ ▇▇▇▇▇▇, tenants by the 12,089
entirety --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. 806 --
▇▇▇▇ Grand 35,560 --
▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,586 --
▇▇▇▇▇▇ ▇▇▇▇▇ 46,458 --
Guren Family Trust 1,612 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 69,873 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2,821 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 2,418 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 60,444 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 242 --
▇▇▇▇▇ ▇. ▇▇▇▇▇ 998 --
Investar Burgeon Venture Capital, Inc. 4,766 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 7,311 --
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 41,004 --
▇▇▇▇▇▇▇ ▇▇▇▇▇ 41,279 --
▇▇▇▇▇▇ ▇▇▇▇ 32,237 --
▇▇▇▇ ▇. Keilhacker 6,206 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Estate of) 5,722 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,014 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 6,044 --
▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,869 --
Lazarus Family Investments, LLC 806 --
M.R.W. Ventures, LLC 4,433 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 16,118 --
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 605 --
▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,030 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 14,103 --
▇▇▇▇▇ ▇▇▇▇▇▇▇ 13,449 --
Mellon Ventures II, L.P. 120,888 --
2
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 47,661 --
MKA Partners, L.P. 18,133 --
▇▇▇▇▇ ▇▇▇▇▇▇ 2,014 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Trust 8,756 --
▇▇▇▇▇ ▇▇▇▇▇▇ 39,490 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 78,980 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 3,022 --
▇▇▇▇▇▇ ▇'▇▇▇▇▇ 1,007 --
▇▇▇▇▇▇ ▇▇▇▇▇ 8,059 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 6,044 --
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 806 --
N. ▇▇▇▇▇ ▇▇▇▇▇▇ 2,216 --
▇▇▇▇ ▇▇▇▇▇ 20,148 --
▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ 665 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 26,346 --
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,030 --
▇▇▇▇ ▇▇▇▇▇ 2,821 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 4,030 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10,074 --
▇▇▇▇▇ ▇▇▇▇▇▇▇ 806 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 12,089 --
▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ 2,152 --
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8,059 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 4,030 --
▇▇▇▇▇ ▇. ▇▇▇▇ 40,296 --
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 5,822 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 4,916 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 5,037 --
▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,612 --
▇▇▇▇ ▇▇▇▇▇▇▇ 40,296 --
Thomson U.S. Inc. 434,058 --
▇▇▇▇ ▇▇▇▇▇▇▇ 8,059 --
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 7,899 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 5,762 --
▇▇▇▇▇ ▇▇▇▇▇▇ 4,030 --
WebListing Corporation Profit Sharing Plan 23,291 --
Weissmann, Wolff, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP 12,874 --
▇▇▇▇▇ ▇. ▇▇▇▇▇ 6,206 --
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 72,613 --
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 377 --
▇▇▇▇▇▇▇ ▇▇▇▇ 79,041 --
3
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,030 --
Wyler Irrevocable Trust FBO ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ 4,030 --
▇▇▇▇▇ ▇▇▇▇▇ 80,592 --
▇▇▇▇▇▇▇ ▇▇▇ 2,078 --
---------- -------
4,000,000 0
Total 5,600,000 840,000
4
SCHEDULE C
IXL ENTERPRISES, INC.
5,600,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The 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 public
offering price set forth above less $0.[ ] 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.
1
SCHEDULE D
Persons and entities
subject to lock-up
"@▇▇▇▇▇▇▇.▇▇▇▇▇, Inc."
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Irrevocable Trust
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
ALTRU Trust, an Irrevocable Trust
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ (Trustee of the ▇▇▇▇ Family
Trust dated 8/17/82)
▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇ Technology Investments, Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. (Estate of)
▇▇▇▇▇▇▇▇, ▇.▇., III
Davidson, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇., III
▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ Partners
Flatiron Associates, LLC
Flatiron Fund 1998/99, LLC
Flatiron Fund, LLC
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
Gear, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Inter Vivos Trust dated
4/27/93 - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. and ▇▇▇▇▇▇, tenants by
the entirety
Grand, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇
Greystone Capital Partners, I.L.P.
Guren Family Trust
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (Trust)
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ Cadillac, Inc.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
Investar Burgeon Venture Capital, Inc.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇ Enterprises Ltd.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. (Estate of)
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇ Family Partnership - VI, LLP
Marks, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇
MKA Partners, ▇.▇.
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
Nailing, ▇▇▇▇▇▇▇
Next Century Communications Corp.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇'▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (Trust)
▇▇▇▇▇, ▇▇▇▇▇▇ (Trust)
▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Parent, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ (Trust)
Roco, ▇▇▇▇▇▇▇▇▇▇▇ (Trust)
1
▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ (Trust)
▇▇▇▇▇, ▇▇▇▇▇ (Trust)
▇▇▇▇▇, ▇▇▇▇▇ (Trust)
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ (Trust)
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ U.S. Inc.
▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇ 1999 Family Trust
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ Irrevocable Trust FBO ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇
SCHEDULE E
List of Selling Shareholders who
are Executive Officers of the Company
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
1
Exhibit A-1
FORM OF OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(i) 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.
(i) 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.
(i) 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 10,000,000 shares of Common Stock
registered pursuant to Registration Statements on Form S-4 for use in
future acquisitions), and 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
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.
(i) 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.
(i) To our knowledge, the sale of the Securities by the Company and the
sale of the Securities by the Selling Shareholders is not subject to
preemptive rights, co-sale rights, rights of first refusal or similar
1
rights of any security holder of the Company, and except as disclosed in
the Prospectuses, is not subject to registration rights. The Securities
will be sold free and clear of all liens, encumbrances, equities or claims.
(i) 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.
(i) The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
(i) 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.
(i) 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.
(i) 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.
(i) 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.
(i) 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
2
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.
(i) 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.
(i) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
(i) 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.
(i) To our knowledge, neither the Company nor any Subsidiary is in
violation of its charter or by-laws.
(i) 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.
(i) 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 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.
(i) 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.
3
(i) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
(i) 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.
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
(iv), the second sentence of paragraph (v), paragraph (xiv) and the first clause
of paragraph (xvi) 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.
4
Exhibit A-2
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.
1
Exhibit A-3
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.
1
Exhibit A-4
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.
1
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholders for the performance by each Selling
Shareholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly executed
and delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder,
enforceable in accordance with its terms.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement and
the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by the Selling
Shareholders with their obligations under the Purchase Agreement have been duly
authorized by all necessary action on the part of the Selling Shareholders 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 under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the Selling Shareholders
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which any
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of the Selling Shareholders may be subject nor will such
action result in any violation of the provisions of the charter or by-laws of
the Selling Shareholders, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) By delivery of a certificate or certificates therefor such Selling
Shareholder will transfer to the Underwriters who have purchased such Securities
pursuant to the Purchase Agreement (without notice of any adverse claim to the
Securities) valid and marketable title to such Securities, free and clear of
any pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind.
2
[Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(k)]
Exhibit C
October ___, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
First Union Securities, Inc.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, LLC
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned, a security holder of iXL Enterprises, Inc., a Delaware
corporation (the "Company"), or one of its Subsidiaries (as such term is defined
in the Purchase Agreement (as defined herein)), understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and
certain other underwriters propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company and the Selling Shareholders referred to
therein providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $0.01 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 90 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 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 registered shares of Common Stock or
other securities acquired in open market transactions 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 90-day period.
1
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:
2