The Corporate Executive Board Company
3,000,000 Shares
Common Stock
($.01 par value)
Underwriting Agreement
▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ Inc.
As Representative of the several Underwriters,
c/o Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The Selling Stockholders listed in Schedule II (the "Selling Stockholders")
propose to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you are acting as Representative (the
"Representative"), an aggregate of 3,000,000 shares of Common Stock, $.01 par
value (the "Common Stock," being hereinafter called the "Underwritten
Securities") of The Corporate Executive Board Company, a Delaware corporation
(the "Company"). Certain of the Selling Stockholders also propose to grant to
the Underwriters options to purchase up to an aggregate of 300,000 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). Certain of the shares of Common Stock to be sold by
the Selling Stockholders hereunder (the "Exercise Shares") shall be issued by
the Company to the Selling Stockholders pursuant to the exercise of certain
options (the "Selling Stockholder Options").
To the extent there are no additional Underwriters listed on Schedule I
other than you, the term Representative as used in this Underwriting Agreement
shall mean you, as Underwriters, and the terms Representative and Underwriters
shall mean either the singular or plural as the context requires. The use of
the neuter in this Underwriting Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used in this Underwriting
Agreement are defined in Section 17 hereof.
1. Representations and Warranties.
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(i) The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1(i).
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file
number 333-55864) on
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Form S-3, including related preliminary prospectus, for registration under
the Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including the related preliminary
prospectus, each of which has previously been furnished to you. The Company
will next file with the Commission either (1) prior to the Effective Date
of such registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (2) after the
Effective Date of such registration statement, a final prospectus in
accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the form of prospectus filed with such registration
statement. As filed, such amendment and form of final prospectus, or such
final prospectus, shall contain all Rule 430A Information, together with
all other such required information, and, except to the extent the
Representative shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has advised
you, prior to the Execution Time, will be included or made therein. The
Company and the transactions contemplated by this Agreement meet the
requirements and comply with the conditions for the use of Form S-3. Any
reference herein to the Registration Statement, any Preliminary Prospectus
or to the Prospectus or to any amendment or supplement to any of the
foregoing documents shall be deemed to refer to and include any documents
incorporated by reference therein, and, in the case of any reference herein
to any Prospectus, also shall be deemed to include any documents
incorporated by reference therein, and any supplements or amendments
thereto, filed with the Commission after the date of filing of the
Prospectus under Rules 424(b) or 430A, and prior to the termination of the
offering of the Securities by the Underwriters.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
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warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in this
Underwriting
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Agreement or in writing to the Company by or on behalf of any Underwriter
through the Representative specifically for inclusion in the Registration
Statement or the Prospectus (or any supplement thereto).
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified would not
reasonably be expected to result in a material adverse effect on the
financial condition, prospects or results of operations of the Company.
(d) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectus; the capital stock of the
Company conforms in all material respects to the description thereof
contained or incorporated by reference in the Prospectus; the outstanding
shares of Common Stock (including the shares of Common Stock being sold
pursuant to this Underwriting Agreement by the Selling Stockholders) have
been duly authorized and validly issued and are fully paid and
nonassessable and the Securities being sold by the Selling Stockholders
upon exercise of their options will, upon exercise of such options, be
validly issued, fully paid and nonassessable; the Securities being sold by
the Selling Stockholders have been approved for trading on the Nasdaq
National Market subject to official notice of issuance; the certificates
for the Securities are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities; and, except as
set forth in the Prospectus, no options, warrants or other rights to
purchase from the Company, agreements or other obligations of the Company
to issue, or rights to convert any obligations of the Company into or
exchange any securities of the Company for, shares of capital stock of or
ownership interests in the Company are outstanding.
(e) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto or incorporated by reference therein, which
is not described or filed as required.
(f) This Underwriting Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms.
(g) The Company is not an "investment company" required to be
registered under the Investment Company Act of 1940, as amended.
(h) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be obtained by the
Company in connection with the transactions contemplated herein, except
such as have been obtained under the Act and the filing of the Prospectus
pursuant to Rule 424(b) and such as may be required
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under the blue sky laws of any jurisdiction in connection with the purchase
and distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Prospectus.
(i) None of the exercise of the Selling Stockholder Options, the
issue of the Exercise Shares by the Company, the sale of the Securities by
the Selling Stockholders or the fulfillment by the Company and the Selling
Stockholders of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, (i) the charter or by-laws
of the Company; (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company is a
party or bound or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its properties (excluding for purposes of this paragraph (i) federal and
state securities laws and regulations).
(j) Except as set forth in the Prospectus, no holders of securities
of the Company have rights to the registration of such securities under the
Registration Statement.
(k) The historical financial statements and schedules of the Company
included in the Prospectus and the Registration Statement present fairly in
all material respects the financial condition, results of operations and
cash flows of the Company as of the dates and for the periods indicated,
comply as to form in all material respects with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data, set forth under the captions "Summary Financial Data" and
"Selected Financial Data" in the Prospectus and Registration Statement
fairly present, on the basis stated in the Prospectus and the Registration
Statement, the information included therein.
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its property is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of this Underwriting Agreement
or the consummation of any of the transactions contemplated hereby or (ii)
could reasonably be expected to have a material adverse effect on the
financial condition, prospects or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(m) The Company owns or leases all such properties as are necessary
for the conduct of its operations as presently conducted.
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(n) The Company is not in violation or default of (i) any provision
of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties, as
applicable, which violation or default could reasonably be expected to have
a material adverse effect on the financial condition, prospects or results
of operations of the Company.
(o) To the best of the Company's knowledge, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who
have certified certain financial statements of the Company and delivered
their report with respect to the audited financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(p) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
except in any case in which the failure so to file would not reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto)
and has paid all taxes required to be paid by it as shown on such returns
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith
or as would not reasonably be expected to have a material adverse effect on
the financial condition, prospects or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(q) No labor problem or dispute with the employees of the Company
exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
principal suppliers, contractors or customers, that could reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
(r) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the business in which it is engaged; all policies
of insurance insuring the Company or its business, assets, employees,
officers and directors are in full force and effect; the Company is in
compliance with the terms of such policies and instruments in all material
respects; and there are no material claims by the Company under any such
policy or instrument as to which any insurance company is denying liability
or defending under a
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reservation of rights clause; the Company has not been refused any
insurance coverage sought or applied for; and the Company has no reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not reasonably be expected to have a material adverse effect on
the financial condition, prospects or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(s) The Company possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and the Company
has not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, could reasonably be expected to have a material
adverse effect on the financial condition, prospects or results of
operations of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(v) The Company has fulfilled its obligations, if any, under the
minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee
Retirement Income Security Act of 1974 ("ERISA") and the regulations and
published interpretations thereunder with respect to each "plan" (as
defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company are eligible to
participate and each such plan is in compliance with the presently
applicable provisions of ERISA and such regulations and published
interpretations, except for any failure to fulfill any such obligations, or
failure to comply, that singly or in the aggregate would not reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company. The Company has not
incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any
such plan under Title IV of
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ERISA, except for any such liability that would not reasonably be expected
to result in a material adverse effect on the financial condition,
prospects or results of operations of the Company.
(w) Except as set forth in or contemplated by the Registration
Statement and the Prospectus (exclusive of any amendment or supplement
thereto), subsequent to the respective dates as of which such information
is given in the Registration Statement and the Prospectus (exclusive of any
amendment or supplement thereto), (i) the Company has not incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to
the Company, and (ii) there has not been any change in the capital stock,
or material increase in the short-term debt or long-term debt, of the
Company, or any material adverse change, or any development having or which
may reasonably be expected to have a material adverse change, in the
financial condition, prospects or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business.
Any certificate signed by any officer of the Company and delivered to
the Representative or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder represents and warrants to, and agrees
with, each Underwriter that:
(a) This Underwriting Agreement has been duly executed and delivered
by or on behalf of such Selling Stockholder and constitutes a valid and
binding obligation of such Selling Stockholder enforceable in accordance
with its terms.
(b) Such Selling Stockholder is, or, upon the exercise of the Selling
Stockholder Options to be exercised by such Selling Stockholder, will be
the lawful owner of the Securities to be sold by such Selling Stockholder
under this Underwriting Agreement and upon sale and delivery of, and
payment for, such Securities, as provided herein, such Selling Stockholder
will convey to the Underwriters title to such Securities, free and clear of
any adverse claims whatsoever.
(c) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required to be obtained or made by such
Selling Stockholder for the consummation by such Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained
under the Act, the filing of the Prospectus pursuant to Rule 424(b) and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the
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Underwriters in the manner contemplated herein and in the Prospectus and
such other approvals as have been obtained.
(e) Neither the sale of Securities to the Underwriters by such
Selling Stockholder nor the fulfillment of the terms hereof by such Selling
Stockholder will conflict with, result in a breach or violation of, or
constitute a default under any law or the terms of any indenture or other
agreement or instrument to which such Selling Stockholder is a party or
bound, or any judgment, order or decree applicable to such Selling
Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Stockholder.
Any certificate signed by any Selling Stockholder and delivered to the
Representative or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
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in reliance upon the representations and warranties set forth herein, each
Selling Stockholder agrees, severally and not jointly, to sell to the
Underwriters the number of Underwritten Securities set forth opposite the name
of such Selling Stockholder in Schedule II hereto, and each Underwriter agrees,
severally and not jointly, to purchase from the Selling Stockholders, at a
purchase price of $30.25 per share, the number of the Underwritten Securities
set forth opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Selling Stockholders listed
on Schedule IV to this Underwriting Agreement (the "Option Securities Selling
Stockholders") hereby grant an option to the several Underwriters to purchase,
severally and not jointly, up to the number of Option Securities listed beside
each such Option Securities Selling Stockholder's name on such Schedule IV at
the same purchase price of $30.25 per share as the Underwriters shall pay for
the Underwritten Securities. Said option may be exercised only to cover over-
allotments in the sale of the Underwritten Securities by the Underwriters. Said
option may be exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Prospectus upon written or
telegraphic notice by the Representative to the Company and the Option
Securities Selling Stockholders setting forth the number of shares of the Option
Securities as to which the several Underwriters are exercising the option and
the settlement date. Should said Underwriters' option be exercised only in part
by the Underwriters, the number of Option Securities purchased from each Option
Securities Selling Stockholder shall be reduced ratably so that the ratio of the
number of Option Securities purchased from an Option Securities Selling
Stockholder to the total number of Option Securities purchased from all Option
Securities Selling Stockholders equals the ratio of the maximum number of Option
Securities listed on Schedule IV as being offered by such Option Securities
Selling Stockholder (on full exercise of the Underwriters' option) to the
maximum aggregate number of Option Securities purchasable by the Underwriters
from all of the Option Securities Selling Stockholders on full exercise of such
Underwriters' option. However, in the case of a partial exercise of the
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Underwriters' option, you may make such adjustments to the number of Option
Securities to be purchased from each Option Securities Selling Stockholder (in
order to eliminate any fractional shares) as you in your absolute discretion
shall determine. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
3. Delivery and Payment. Delivery of and payment for the
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Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
March 13, 2001, or at such time on such later date not more than three Business
Days after the foregoing date as the Representative shall designate, which date
and time may be postponed by agreement among the Representative, the Selling
Stockholders and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Representative for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representative of the respective purchase prices of the
Securities being sold by each of the Selling Stockholders to or upon the order
of the Selling Stockholders by wire transfer payable in same-day funds to the
accounts specified by the Selling Stockholders. Delivery of the Underwritten
Securities and the Option Securities shall be made through the facilities of The
Depository Trust Company unless the Representative shall otherwise instruct.
Each Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several Underwriters of the Securities
to be purchased by them from such Selling Stockholder, and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Selling Stockholders will
deliver the Option Securities (at the expense of the Selling Stockholders) to
the Representative, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, on the date
specified by the Representative (which shall be within three Business Days after
exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representative of the purchase price thereof to or upon the order of the Selling
Stockholders by wire transfer payable in same-day funds to the accounts
specified by the Selling Stockholders. If settlement for the Option Securities
occurs after the Closing Date, the Company and the Selling Stockholders will
deliver to the Representative on the settlement date for the Option Securities,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
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5. Agreements.
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(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission, or transmitted by a
means reasonably calculated to result in filing with the Commission,
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representative of
such timely filing. The Company will promptly advise the Representative
(1) when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective; (2) when the
Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission; (3) when,
prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective; (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or for
any supplement to the Prospectus or for any additional information; (5) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose; and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act in connection with the offering of
the Securities, any event occurs as a result of which the Prospectus as
then supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the rules
thereunder, the Company promptly will (1) notify the Representative of any
such event; (2) prepare and file with the Commission, subject to the second
sentence of paragraph (i)(a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such
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compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representative an earnings statement or
statements of the Company which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto and documents
incorporated by reference therein) and, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act, as many copies of
each Preliminary Prospectus and the Prospectus and any supplement thereto
as the Representative may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representative reasonably may designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to do
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business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Deutsche Banc Alex. ▇▇▇▇▇ Inc., for a period of 90 days following the
Execution Time, offer, sell or contract to sell or otherwise dispose of (or
enter into any transaction which is designed to, or might reasonably be
expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate of the Company or any person in privity with the
Company or any affiliate of the Company) directly or indirectly, or
announce the offering of, or file a Registration Statement with the
Commission in respect of, any other shares of Common Stock or any
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock; provided, however, that the Company may file one or more
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registration statements on Form S-8 and may issue and sell Common Stock or
make any awards pursuant to any employee stock option plan, stock ownership
or purchase plan or dividend reinvestment plan of the Company in effect at
the Execution Time and the Company may issue Common Stock issuable upon the
conversion of securities or the exercise of warrants outstanding at the
Execution Time and the Company may issue shares of Common Stock or
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock in connection with an acquisition of or merger with another
corporation or the acquisition of assets or properties thereof, provided,
--------
that the holders of any such securities shall be subject to the transfer
restrictions set forth in Section 5(ii)(a) hereof.
-11-
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(ii) Each Selling Stockholder agrees with the several Underwriters
that:
(a) Such Selling Stockholder will not, without the prior written
consent of Deutsche Banc Alex. ▇▇▇▇▇ Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file (or
participate in the filing of) a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act with respect to, any shares of Common Stock
of the Company or any securities convertible into or exercisable or
exchangeable for such Common Stock, or publicly announce an intention to
effect any such transaction, for a period of 90 days after the date of this
Underwriting Agreement, other than sales, transfers or other distributions
in transactions that are not required to be registered under the Act,
including charitable contributions, gifts and sales to third parties,
provided that the transferee agrees to be bound by a restriction on further
--------
transfers substantially similar to the restriction set forth in this
Section 5(ii)(a).
(b) Such Selling Stockholder will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of any change in information in the Registration
Statement or the Prospectus relating to the Selling Stockholder.
(d) Such Seller Stockholder will pay the costs and expenses relating
to the following matters in the same proportion as the number of Securities
sold by such Selling Stockholder bears to the total number of Securities
sold by all of the Selling Stockholders:
(i) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements
and exhibits thereto), Preliminary Prospectus, the Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage and air freight charges) of such copies of
the Registration Statement, Preliminary Prospectus, the Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the issuance of the
-12-
Exercise Shares or the sale of the Securities by the Selling Stockholders;
(iv) the printing (or reproduction) and delivery of this Underwriting
Agreement and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of
the Securities on the Nasdaq National Market; (vi) any registration or
qualification of the Securities for offer and sale under the securities
laws of the several states (including filing fees and the reasonable fees
and expenses of counsel for the Underwriters relating to such registration
and qualification); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (including filing fees); (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers
of the Securities; (ix) the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and special counsel)
for the Company and the Selling Stockholders; and (x) all other costs and
expenses incident to the performance by the Company and the Selling
Stockholders of their obligations under this Underwriting Agreement.
6. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representative agrees in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Prospectus, and any such supplement, will be filed, or
transmitted by a means reasonably calculated to result in filing with the
Commission, in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened by the Commission.
(b) The Company shall have caused ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
counsel for the Company, to have furnished to the Representative their
opinion, dated the Closing Date and addressed to the Representative, to the
effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the General Corporation Law of the
State of
-13-
Delaware, with corporate power and authority to own or lease, as the case
may be, and to operate its properties and conduct its business as described
in the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of the State of New York
and the District of Columbia;
(ii) the Company's authorized equity capitalization is as set forth
in the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus;
the shares of Common Stock underlying the Selling Stockholder Options have
been duly authorized; the outstanding shares of Common Stock (including the
Securities being sold under the Underwriting Agreement by the Selling
Stockholders) have been duly authorized and validly issued and are fully
paid and nonassessable; the holders of outstanding Shares of Common Stock
are not entitled to preemptive or other rights to subscribe for the
Securities;
(iii) such counsel has not been engaged by the Company to give
substantive attention to, or to represent it in connection with, any
pending or threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Prospectus;
(iv) the Registration Statement has become effective under the Act;
any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made, or the Prospectus and any
supplements thereto have been transmitted by a means reasonably calculated
to result in filing with the Commission, in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued by the Commission and, to the best of such counsel's knowledge, no
proceedings for that purpose have been instituted or threatened; and the
conditions for the use of Form S-3, set forth in the General Instructions
thereto, have been satisfied;
(v) this Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the Company is not an "investment company" required to be
registered under the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order of
any court or governmental agency or body is required to be obtained or made
by the Company under the laws of the United States of America in connection
with the sale of the Securities to the Underwriters in the manner
contemplated in this Underwriting Agreement, except such as have been
obtained under the Act and such as may be required under the blue sky laws
of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in the
Underwriting Agreement and in the Prospectus and such other approvals
(specified in such opinion) as have been obtained; and
-14-
(viii) none of the exercise of the Selling Stockholder Options, the
issue of the Exercise Shares, the sale of the Securities by the Selling
Stockholders, or the fulfillment by the Company and the Selling
Stockholders of the terms of this Underwriting Agreement will conflict
with, result in a breach or violation of or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or its
subsidiaries pursuant to, (a) the charter or by-laws of the Company, (b)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument identified to such counsel in a certificate by the
Company as being material to which the Company is a party or bound or to
which its property is subject, or (c) any statute, law, rule, regulation,
judgment, order or decree applicable to the Company of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its
properties (excluding for purposes of this paragraph (viii) federal and
state securities laws and regulations).
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent auditors of the Company and your
representatives and counsel at which the contents of the Registration Statement
and the Prospectus were discussed. Such counsel also may state that because the
purpose of their professional engagement was not to establish or confirm factual
matters and because the scope of their examination of the affairs of the Company
did not permit them to verify the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, they are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus. Such counsel also shall state that, on the basis
of the foregoing, except for the financial statements and schedules and other
financial and statistical data included therein, as to which such counsel need
express no opinion or belief: (a) such counsel is of the opinion that the
Registration Statement at the time it became effective appeared on its face to
comply as to form in all material respects with the applicable requirements of
the Act and the rules thereunder; and (b) no facts have come to such counsel's
attention that lead such counsel to believe that (i) 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, or (ii) the Prospectus as of the
date thereof and as of the date of such opinion contained or contain an untrue
statement of a material fact or omitted or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. On the basis of the foregoing, no
facts have come to such counsel's attention that lead such counsel to believe
that (i) there are any outstanding options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company, except as set forth in the Prospectus or
(ii) there is any franchise, contract or other document of a character required
to be described or incorporated by reference in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not described,
incorporated by reference or filed as required.
-15-
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have caused ▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, to have furnished to
the Representative their opinion dated the Closing Date and addressed to
the Representative, to the effect that:
(i) to the knowledge of such counsel, the Underwriting Agreement
has been duly executed and delivered by or on behalf of the Selling
Stockholders; and
(ii) to the knowledge of such counsel, the delivery by each Selling
Stockholder to the several Underwriters of certificates for the Securities
being sold under the Underwriting Agreement by such Selling Stockholder
against payment therefor as provided in the Underwriting Agreement, will
pass title to such Securities to the several Underwriters, free and clear
of all adverse claims whatsoever.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of the Selling Stockholders and public
officials.
(d) The Representative shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representative, with
respect to the issuance and sale of the Securities, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representative may reasonably require, and the
Company and each Selling Stockholder shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chief Executive Officer and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to the
Prospectus and this Underwriting Agreement and that:
(i) the representations and warranties of the Company in this
Underwriting Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse
-16-
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(f) Each Selling Stockholder shall have furnished to the
Representative a certificate, signed by or on behalf of such Selling
Stockholder, dated the Closing Date, to the effect that (i) the signer of
such certificate has carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Underwriting
Agreement, (ii) the representations and warranties of each Selling
Stockholder in this Underwriting Agreement are true and correct in all
material respects on and as of the Closing Date to the same effect as if
made on the Closing Date and (iii) the Selling Stockholder has complied
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(g) The Company shall have caused ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP to have
furnished to the Representative, at the Closing Date, a letter, dated as of
the Closing Date, in form and substance satisfactory to the Representative,
confirming that they are independent accountants within the meaning of the
Act and the applicable published rules and regulations thereunder, and
stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included in the Registration Statement and the
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations;
(ii) on the basis of carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the minutes
of the meetings of the stockholders, directors and any committees of the
Company; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company as to
transactions and events subsequent to December 31, 2000, nothing came to
their attention which caused them to believe that:
(1) with respect to the period subsequent to December 31, 2000,
there were any changes, at a specified date not more than five days prior
to the date of the letter, in the long-term debt of the Company or capital
stock of the Company or decreases in the stockholders' equity of the
Company as compared with the amounts shown on the December 31, 2000 balance
sheet included in the Registration Statement and the Prospectus, or for the
period from January 1, 2001 to such specified date there were any
decreases, as compared with the corresponding period in the preceding
fiscal quarter, in net revenues or income before income taxes or in total
or per share amounts of net income, income from operations and interest
income of the Company, except in all instances for changes or decreases set
forth in such letter, in which case the letter shall be
-17-
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Representative; and
(2) the information included in the Registration Statement and
Prospectus in response to Regulation S-K, Item 301 (Selected Financial
Data) and Item 302 (Supplementary Financial Information) is not in
conformity with the applicable disclosure requirements of Regulation S-K;
and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Registration Statement and the Prospectus,
including the information set forth under the captions "Prospectus
Summary", "Risk Factors", "Capitalization", "Selected Financial Data",
"Management's Discussion and Analysis of Results of Financial Condition and
Results of Operation" and "Business" in the Prospectus, agrees with the
accounting records of the Company, excluding any questions of legal
interpretation.
References to the Prospectus in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as
of which information is given in the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (g) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the financial condition or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representative, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
(i) The Securities shall have been listed and admitted and
authorized for trading on the Nasdaq National Market, and satisfactory
evidence of such actions shall have been provided to the Representative.
(j) On or prior to the Execution Time, the National Association of
Securities Dealers, Inc. shall have approved the Underwriters'
participation in the distribution of the Securities to be sold by the
Selling Stockholders.
(k) At the Execution Time, the Company shall have furnished to the
Representative a letter substantially in the form of Exhibit A hereto from
each person listed on Schedule III hereto.
-18-
(l) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representative such further
information, certificates and documents as the Representative may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representative and
counsel for the Underwriters, this Underwriting Agreement and all obligations of
the Underwriters under this Underwriting Agreement, or, in the case of any
condition to the purchase of Option Securities on a settlement date which is
after the Closing Date, the obligations of the several Underwriters to purchase
the relevant Option Securities, may be terminated by the Representative at any
time at or prior to the Closing Date or such settlement date, as applicable.
Notice of such cancellation shall be given to the Company and each Selling
Stockholder in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the
Underwriters, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10(i) hereof or because of any
refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Deutsche Banc Alex. ▇▇▇▇▇ Inc. on
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or in the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
-------- -------
Company will not be liable in any such
-19-
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Underwriter through the Representative specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs
the Registration Statement, each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls the
Company or any Underwriter within the meaning of either the Act or the
Exchange Act and each other Selling Stockholder, if any, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information furnished to the Company by or
on behalf of such Selling Stockholder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Selling Stockholder may
otherwise have.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act and each
Selling Stockholder, to the same extent as the foregoing indemnity to each
Underwriter, but only with reference to written information relating to
such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representative specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Company and each Selling Stockholder acknowledge that, under the
heading "Underwriting", (i) the sentences related to the offer and sale by
the Underwriters and (ii) the paragraphs related to short sales,
stabilization, syndicate covering transactions and penalty bids, in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for
inclusion in any Preliminary Prospectus or the Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a), (b) or (c) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to
-20-
represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained by
the indemnified party or parties except as set forth below); provided,
--------
however, that such counsel shall be satisfactory to the indemnified party.
-------
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, (iii) the indemnifying party
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
the institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Selling Stockholders
and the Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending the same)
(collectively "Losses") to which the Company, each of the Selling
Stockholders and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative fault of the Company,
each of the Selling Stockholders and the Underwriters in connection with
the statements or omissions which resulted in such Losses as well as any
other relevant equitable considerations; provided, however, that in no case
-------- -------
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be responsible for
any amount in excess of the underwriting discount or commission applicable
to the Securities purchased by such Underwriter hereunder. Relative fault
shall be determined by reference to, among other things, whether any untrue
or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided
by the Company, the Selling Stockholders or the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company, the Selling Stockholders and the
-21-
Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation
which does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (f), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section
8, each person who controls an Underwriter within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of
an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each
case to the applicable terms and conditions of this paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof
and under the indemnity and contribution agreements contained in this
Section 8 shall be limited to an amount equal to the public offering price
of the Securities sold by such Selling Stockholder to the Underwriters.
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations
under this Underwriting Agreement, the remaining Underwriters shall be
obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Securities set forth opposite the
names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
-------- -------
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule I hereto, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Underwriting Agreement will terminate
without liability to any nondefaulting Underwriter, the Selling
Stockholders or the Company. In the event of a default by any Underwriter
as set forth in this Section 9, the Closing Date shall be postponed for
such period, not exceeding five Business Days, as the Representative shall
determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Underwriting Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company, the
Selling Stockholders and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Underwriting Agreement shall be subject to
-----------
termination in the absolute discretion of the Representative, by notice
given to the
-22-
Company prior to delivery of and payment for the Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market, (ii)
trading in securities generally on the New York Stock Exchange or the
Nasdaq National Market shall have been suspended or limited or minimum
prices shall have been established on such Exchange or National Market,
(iii) a banking moratorium shall have been declared either by Federal or
New York State authorities or (iv) there shall have occurred any outbreak
or escalation of hostilities, declaration by the United States of America
of a national emergency or war, or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of
the Representative, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Prospectus (exclusive
of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the Underwriters set
forth in or made pursuant to this Underwriting Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter, any Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections
7 and 8 hereof shall survive the termination or cancellation of this
Underwriting Agreement.
12. Notices. All communications under this Underwriting Agreement
-------
will be in writing and effective only on receipt, and, if sent to the
Representative, will be mailed, delivered or telefaxed to Deutsche Banc Alex.
▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Syndicate
Manager, with a copy to Deutsche Banc Alex. ▇▇▇▇▇ Inc., ▇▇ ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; or, if sent to the Company
or any Selling Stockholder, will be mailed, delivered or telefaxed to (202) 777-
5100 and confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, Attention: Legal Department.
13. Successors. This Underwriting Agreement will inure to the
----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Underwriting Agreement will be governed by
--------------
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Underwriting Agreement may be signed in one
------------
or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. Headings. The section headings used in this Underwriting
--------
Agreement are for convenience only and shall not affect the construction hereof.
-23-
17. Definitions. The terms which follow, when used in this
-----------
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Underwriting
Agreement is executed and delivered by the parties hereto.
"Losses" shall have the meaning set forth in 8(f).
"Preliminary Prospectus" shall mean any preliminary prospectus with
respect to the offering of the Securities referred to in paragraph 1(i)(a)
above and any preliminary prospectus with respect to the offering of the
Securities included in the Registration Statement at the Effective Date
that omits Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Representative" shall mean the addressee of this Underwriting
Agreement.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
-24-
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a)(i) hereof.
"Securities" shall mean the Underwritten Securities and the Option
Securities.
"Selling Stockholders" shall mean the persons named on Schedule II to
this Underwriting Agreement.
"Underwriting Agreement" shall mean this agreement relating to the
sale of the Securities by the Selling Stockholders to the Underwriters.
"Underwriters" shall mean the several underwriters named in Schedule I
to this Underwriting Agreement.
-25-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
The Corporate Executive Board Company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Selling Stockholders listed on Schedule II
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Attorney-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
For itself and the other
several Underwriters
named in Schedule I to the foregoing
Underwriting Agreement.
-26-
SCHEDULE I
----------
Number of Underwritten
Underwriters Securities to be Purchased
------------ --------------------------
Deutsche Banc Alex. ▇▇▇▇▇ Inc.................. 3,000,000
---------
Total........... 3,000,000
-27-
SCHEDULE II
-----------
Number of Underwritten
Selling Stockholders Securities to be Sold
-------------------- ----------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇....................................... 30,000
▇▇▇▇▇ ▇. ▇▇▇▇▇....................................... 17,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.................................. 40,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.................................... 302,950
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.................................... 100,000
Jeffereson ▇. ▇. ▇▇▇▇▇............................... 180,600
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.................................... 5,514
▇▇▇▇▇ ▇. ▇▇▇▇........................................ 58,190
▇▇▇▇▇▇ ▇▇▇▇▇▇........................................ 59,628
▇▇▇▇ ▇. ▇▇▇▇▇▇....................................... 3,500
▇▇▇▇▇ ▇. ▇▇▇▇▇....................................... 163,230
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇............................... 55,690
▇▇▇▇▇ ▇. ▇▇▇▇▇▇...................................... 30,000
▇▇▇▇▇▇▇ ▇. Forest.................................... 12,500
▇▇▇▇▇ ▇▇▇▇▇▇......................................... 127,110
▇▇▇▇▇ ▇. ▇▇▇▇........................................ 53,664
▇▇▇▇▇ ▇. ▇▇▇▇▇▇...................................... 2,500
▇▇▇▇▇▇ ▇▇▇▇▇......................................... 4,918
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇..................................... 21,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇................................... 127,110
▇▇▇▇ ▇. ▇▇▇▇▇▇....................................... 5,420
▇▇▇▇▇ ▇. ▇▇▇▇▇....................................... 138,342
▇▇▇▇ ▇. ▇▇▇▇▇▇....................................... 5,500
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇................................... 300,000
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.................................. 90,884
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇................................ 55,378
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.................................... 57,500
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇..................................... 108,360
▇▇▇▇ ▇. ▇'▇▇▇▇▇...................................... 44,460
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇................................... 38,710
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇................................... 20,682
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.................................... 9,000
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇................................... 48,874
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇..................................... 76,490
▇▇▇▇▇▇ ▇▇▇▇▇▇........................................ 63,472
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇................................... 33,148
▇▇▇▇▇ ▇. ▇. ▇▇▇ ▇▇▇▇▇................................ 110,000
-28-
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇..................................... 48,874
▇▇▇▇ ▇. ▇▇▇▇......................................... 20,000
▇▇▇▇ ▇. ▇▇▇▇▇▇▇...................................... 90,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇..................................... 69,268
▇▇▇▇▇ ▇. ▇▇▇▇▇....................................... 41,120
▇▇▇▇ ▇. ▇▇▇▇▇▇▇...................................... 30,000
▇▇▇▇▇ ▇. ▇▇▇▇▇....................................... 25,000
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇..................................... 6,500
▇▇▇▇ ▇. ▇▇▇▇▇▇▇...................................... 5,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇..................................... 5,000
▇▇▇▇▇ ▇. ▇▇▇▇▇....................................... 4,250
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇............................. 4,250
▇▇▇▇ ▇. ▇▇▇▇▇........................................ 3,514
▇▇▇▇ ▇▇▇▇▇▇▇▇▇....................................... 2,500
▇▇▇▇▇ ▇▇▇▇▇▇▇........................................ 2,500
▇▇▇▇ ▇▇▇▇▇▇.......................................... 2,500
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.................................... 2,250
▇▇▇▇ ▇▇▇▇▇▇▇▇........................................ 1,750
▇▇▇▇▇▇ ▇▇▇▇▇▇▇....................................... 1,750
▇▇▇▇▇ ▇▇▇▇▇.......................................... 1,750
▇▇▇▇▇▇ ▇▇▇▇▇......................................... 1,750
▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇).............................. 1,750
▇▇▇▇ ▇. ▇▇▇▇▇▇▇...................................... 1,500
▇▇▇▇▇▇ ▇. ▇▇▇▇▇...................................... 1,450
▇▇▇▇ ▇▇▇▇▇........................................... 1,250
▇▇▇ ▇▇▇▇▇▇........................................... 1,250
▇▇▇▇▇ ▇▇▇▇▇.......................................... 1,250
▇▇▇▇▇▇ ▇▇▇▇▇▇........................................ 1,250
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇..................................... 1,250
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.................................... 1,250
▇▇▇▇ ▇▇▇▇▇........................................... 1,250
▇▇▇▇▇▇ ▇▇▇▇▇▇........................................ 1,250
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇................................ 1,250
▇▇▇▇ ▇▇▇▇▇........................................... 1,250
▇▇▇ ▇▇▇▇▇▇▇▇▇▇....................................... 1,000
▇▇▇▇ ▇▇▇▇▇▇.......................................... 750
▇▇▇▇ ▇▇▇▇............................................ 750
▇▇▇▇▇▇ ▇▇▇▇▇▇▇....................................... 750
▇▇ ▇▇▇▇▇▇............................................ 750
▇▇▇▇ ▇▇▇▇▇▇▇▇........................................ 750
▇▇▇▇ ▇▇▇▇▇▇▇......................................... 500
▇▇▇▇ ▇▇▇▇▇........................................... 950
▇▇▇▇ ▇▇▇▇▇▇.......................................... 500
▇▇▇▇▇▇▇ ▇▇▇▇▇▇....................................... 500
▇▇▇▇ ▇▇▇▇............................................ 500
-29-
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇...................................... 500
▇▇▇▇ ▇▇▇▇▇........................................... 500
▇▇▇▇ ▇▇▇▇▇▇▇▇........................................ 500
▇▇▇▇▇ ▇▇▇▇▇▇▇........................................ 500
Eve Meceda........................................... 500
▇▇▇▇▇ ▇▇▇▇▇.......................................... 500
▇▇▇▇▇▇ ▇▇▇▇▇▇▇....................................... 500
▇▇▇▇▇ ▇▇▇▇▇.......................................... 500
▇▇▇ ▇▇▇▇▇............................................ 250
---------
Total........................ 3,000,000
-30-
SCHEDULE III
------------
Persons Executing Letters
-------------------------
Pursuant to Section 6(k)
------------------------
of the Underwriting Agreement
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Jeffereson ▇. ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. Forest
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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-31-
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇
Eve Meceda
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▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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SCHEDULE IV
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Maximum Number of
Name Option Securities
---- -----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.......................................... 202,950
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.......................................... 97,050
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Total.................................. 300,000
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EXHIBIT A
The Corporate Executive Board Company
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Public Offering of Common Stock
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March ___, 2001
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between The Corporate
Executive Board Company, a Delaware corporation (the "Company"), and you as
Representative of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Deutsche Banc Alex. ▇▇▇▇▇ Inc., offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the Securities and Exchange Commission
in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder with respect to,
any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement, other than sales, transfers or other
distributions in transactions that are not required to be registered under the
Act, including charitable contributions, gifts and sales to third parties,
provided that the transferee agrees to be bound by a restriction on further
--------
transfers substantially similar to the restriction set forth herein.
If for any reason the Underwriting Agreement shall be terminated prior to
the Closing Date (as defined in the Underwriting Agreement), the agreement set
forth above shall likewise be terminated.
Yours very truly,
By:________________________________
Name:
Address:
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