Xxxxxxx Xxxxx International. Total International Firm Shares... 1,100,000 ========= EXHIBIT A [FORM OF LOCK-UP LETTER] August __, 1999 Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxxx, Sachs & Co. Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx Inc. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxxxxx & Co. International Limited Xxxxxxx Sachs International Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx International Limited Xxxxxxxxx, Lufkin & Xxxxxxxx International Xxxxxxx Xxxxx International c/o Morgan Xxxxxxx & Co. International Limited 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Dear Sirs and Mesdames: The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the several underwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of shares (the "SHARES") of the Common Stock (par value $.008 per share) of the Company (the "COMMON STOCK"). To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The foregoing provisions shall not apply to the sale or other transfer of shares of Common Stock by the undersigned to any associate (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934) of the undersigned; PROVIDED THAT, prior to any such sale or other transfer of shares of Common Stock, any such associated transferee agrees in writing to the restrictions on transfer set forth herein. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. In the event that the Public Offering shall not have been consummated on or before October 31, 1999, this Lock-Up Agreement shall be of no further force or effect. Very truly yours, -------------------------------- Name -------------------------------- Address Annex I Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP August 16, 1999 XXXXXX XXXXXXX & CO. INCORPORATED XXXXXXX SACHS & CO. XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INC. XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED As Representatives of the several U.S. Underwriters c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED XXXXXXX SACHS INTERNATIONAL XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL INC. XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL XXXXXXX XXXXX INTERNATIONAL As Representatives of the several International Underwriters c/o Morgan Xxxxxxx & Co. International Incorporated 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Re: xxxxxxxxx.xxx Incorporated Public Offering of Common Stock, par value $.008 per share -------------------------------- Ladies and Gentlemen: We have acted as special counsel to xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company") in connection with the Underwriting Agreement, dated August 10, 1999 (the "Underwriting Agreement"), between the Company, certain stockholders of the Company named therein (the "Selling Stockholders"), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Sachs & Co., Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as representatives of the several U.S. Underwriters named therein (the "U.S. Underwriters"), and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx Sachs International, Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx International Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx International and Xxxxxxx Xxxxx International as representatives of the several International Under writers named therein (the "International Underwriters" and together with the U.S. Underwriters, the "Underwriters"), relating to the sale to the several Underwriters by the Company of 2,000,000 shares (the "Primary Shares") of the Company's common stock, par value $.008 per share ("Common Stock") and by the Selling Stockholders of 3,500,000 shares of Common Stock (the "Secondary Shares" and together with the Primary Shares, the "Shares"). This opinion is being furnished pursuant to Section 6(c) of the Underwriting Agreement. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement on Form S-1 (File No. 333-83513) relating to the Shares, filed with the Securities and Exchange Commission (the "Commission") on July 23, 1999 under the Securities Act of 1933, as amended, (the "Act"), Amendment No. 1 thereto filed with the Commission on August 2, 1999 and Amendment No. 2 thereto filed with the Commission on August 10, 1999, including information deemed to be a part of the registration statement at the time of effectiveness pursuant to Rule 430A of the General Rules and Regulations under the Act (the "Rules and Regulations") (such Registration Statement, as so amended, being hereinafter referred to as the "Registration Statement"); (ii) the final prospectuses dated August 10, 1999 relating to the Shares in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (the "Prospectuses"); (iii) a specimen certificate representing the Common Stock; (iv) an executed copy of the Underwriting Agreement; (v) the Certificate of Incorporation of the Company, as currently in effect (the "Certificate of Incorporation"); (vi) the Bylaws of the Company, as currently in effect (the "By-laws");(vii) certain resolutions of the Board of Directors of the Company and a Pricing Committee of the Board of Directors of the Company; (viii) the Amended and Restated Registration Rights Agreement, dated as of December 8, 1998, among the Company, General Atlantic Partners 48, L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P., and the stockholders named therein (the "Registration Rights Agreement") and those other agreements and instruments listed on Schedule I hereto (together with the Registration Rights Agreement, the "Applicable Contracts"); (ix) executed acknowledgements from each of the parties to the Registration Rights Agreement (other than America West Airlines, Inc., Continental Airlines, Inc., Northwest Airlines, Inc. and Trans World Airlines, Inc. (the "Non-Consenting Stock holders") and the Company) consenting to the assignment of registration rights by certain stockholders and waiving rights to notice under the Registration Rights Agreement; and (x) an officer's certificate, dated the date hereof, a copy of which is attached as Exhibit A hereto. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies and the authenticity of the originals of such latter documents. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein which we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. In rendering the opinion set forth in paragraph 4 below, we have also assumed, with your consent, that the certificates representing the Primary Shares will be manually signed by one of the authorized officers of the Transfer Agent and Registrar for the Common Stock and registered by such Transfer Agent and Registrar and will conform to the specimen thereof examined by us.
Appears in 1 contract
Xxxxxxx Xxxxx International. Total International Firm Shares... 1,100,000 ========= SCHEDULE II LIST OF SIGNATORIES TO LETTER ATTACHED AS EXHIBIT A [FORM OF LOCK-UP LETTER] August __EXHIBIT A CompleTel Europe N.V. Public Offering of Ordinary Shares , 1999 Xxxxxx 2000 Xxxxxxx Xxxxx Barney Inc. Salomon Brothers International Limited Xxxxxxx, Xxxxx & Co. Incorporated Xxxxxxx, Sachs & Co. Xxxxxxx Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx Inc. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation International Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxxxxxx Xxxxx International Paribas Corporation Paribas As Representatives of the several Underwriters c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxxxx Barney Inc. 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Xxxxxx Xxxxxxx & Co. International Limited Xxxxxxx Sachs International Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx International Limited Xxxxxxxxx, Lufkin & Xxxxxxxx International Xxxxxxx Xxxxx International c/o Morgan Xxxxxxx & Co. International Limited 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Dear Sirs X.X.X. Ladies and MesdamesGentlemen: The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL") propose This letter is being delivered to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the several underwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of shares (the "SHARES") of the Common Stock (par value $.008 per share) of the Company (the "COMMON STOCK"). To induce the Underwriters that may participate in the Public Offering to continue their efforts you in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The foregoing provisions shall not apply to the sale or other transfer of shares of Common Stock by the undersigned to any associate (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934) of the undersigned; PROVIDED THAT, prior to any such sale or other transfer of shares of Common Stock, any such associated transferee agrees in writing to the restrictions on transfer set forth herein. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an proposed Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. In the event that the Public Offering shall not have been consummated on or before October 31, 1999, this Lock-Up Agreement shall be of no further force or effect. Very truly yours, -------------------------------- Name -------------------------------- Address Annex I Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP August 16, 1999 XXXXXX XXXXXXX & CO. INCORPORATED XXXXXXX SACHS & CO. XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INC. XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED As Representatives of the several U.S. Underwriters c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED XXXXXXX SACHS INTERNATIONAL XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL INC. XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL XXXXXXX XXXXX INTERNATIONAL As Representatives of the several International Underwriters c/o Morgan Xxxxxxx & Co. International Incorporated 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Re: xxxxxxxxx.xxx Incorporated Public Offering of Common Stock, par value $.008 per share -------------------------------- Ladies and Gentlemen: We have acted as special counsel to xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company") in connection with the Underwriting Agreement, dated August 10, 1999 (the "Underwriting Agreement"), between the CompanyCompleTel Europe N.V., certain stockholders of the Company named therein a public limited company (naamloze vennootschap, or N.V.) incorporated under Dutch law (the "Selling StockholdersCompany"), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Sachs & Co., Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated you as representatives of the several U.S. group of Underwriters named therein (the "U.S. Underwriters"), and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx Sachs International, Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx International Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx International and Xxxxxxx Xxxxx International as representatives of the several International Under writers named therein (the "International Underwriters" and together with the U.S. Underwriters, the "Underwriters")therein, relating to the sale to the several Underwriters by the Company an underwritten public offering of 2,000,000 ordinary shares (the "Primary Ordinary Shares") ), of the Company's common stock. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, par value $.008 per share the undersigned will not, without the prior consent of Salomon Brothers International Limited or Xxxxxxx Xxxxx International, offer, sell, contract to sell, pledge or otherwise dispose of ("Common Stock") and whether by actual disposition or effective economic disposition due to cash settlement or otherwise), directly or indirectly, or announce the Selling Stockholders offering, of 3,500,000 shares of Common Stock (the "Secondary Shares" and together with the Primary any Ordinary Shares or any securities convertible into, or exercisable or exchangeable for, Ordinary Shares, for a period of 180 days following the "Shares"). This opinion is being furnished pursuant to Section 6(c) date of the Underwriting Agreement, other than Directed Shares/a/ (as defined in the Underwriting Agreements), or Ordinary Shares disposed of as bona fide gifts approved by Salomon Brothers International Limited and Xxxxxxx Xxxxx International. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) If for any reason the Registration Statement on Form S-1 (File No. 333-83513) relating Underwriting Agreement shall be terminated prior to the Shares, filed with the Securities and Exchange Commission Closing Date (the "Commission") on July 23, 1999 under the Securities Act of 1933, as amended, (the "Act"), Amendment No. 1 thereto filed with the Commission on August 2, 1999 and Amendment No. 2 thereto filed with the Commission on August 10, 1999, including information deemed to be a part of the registration statement at the time of effectiveness pursuant to Rule 430A of the General Rules and Regulations under the Act (the "Rules and Regulations") (such Registration Statement, as so amended, being hereinafter referred to as the "Registration Statement"); (ii) the final prospectuses dated August 10, 1999 relating to the Shares defined in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (the "Prospectuses"); (iii) a specimen certificate representing the Common Stock; (iv) an executed copy of the Underwriting Agreement; (v) ), the Certificate agreement set forth above shall likewise be terminated. Yours very truly, Signature of Incorporation officer, director, employee or shareholder Name and address of officer, director, employee or shareholder ______________ /a/ Directed Shares are Ordinary Shares from the offering that are expected to be subject to priority allocation to the Company's employees, as currently in effect (the "Certificate of Incorporation"); (vi) the Bylaws of the Company, as currently in effect (the "By-laws");(vii) certain resolutions of the Board of Directors of the Company and a Pricing Committee of the Board of Directors of the Company; (viii) the Amended and Restated Registration Rights Agreement, dated as of December 8, 1998, among the Company, General Atlantic Partners 48, L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P., and the stockholders named therein (the "Registration Rights Agreement") and those other agreements and instruments listed on Schedule I hereto (together with the Registration Rights Agreement, the "Applicable Contracts"); (ix) executed acknowledgements from each of the parties to the Registration Rights Agreement (other than America West Airlines, Inc., Continental Airlines, Inc., Northwest Airlines, Inc. and Trans World Airlines, Inc. (the "Non-Consenting Stock holders") and the Company) consenting to the assignment of registration rights by certain stockholders and waiving rights to notice under the Registration Rights Agreement; and (x) an officer's certificate, dated the date hereof, a copy of which is attached as Exhibit A hereto. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies and the authenticity of the originals of such latter documents. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein which we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. In rendering the opinion set forth in paragraph 4 below, we have also assumed, with your consent, that the certificates representing the Primary Shares will be manually signed by one of the authorized officers of the Transfer Agent and Registrar for the Common Stock and registered by such Transfer Agent and Registrar and will conform to the specimen thereof examined by usdirectors.
Appears in 1 contract
Samples: Comple Tel Europe Nv
Xxxxxxx Xxxxx International. Total International Firm Shares... 1,100,000 ========= ...... ---------------------------- ---------------------------- EXHIBIT A [FORM OF LOCK-UP LETTER] August __, 1999 199 ------------ - Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxxx, Sachs & Co. Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx Inc. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Xxxxxx Xxxxxxx & Co. International Limited Xxxxxxx Sachs International Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx International Limited Xxxxxxxxx, Lufkin & Xxxxxxxx International Xxxxxxx Xxxxx International c/o Morgan Xxxxxxx & Co. International Limited 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Dear Sirs and Mesdames: The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with xxxxxxxxx.xxx IncorporatedYankee Candle Company, Inc., a Delaware Massachusetts corporation (the "COMPANY") providing for the public offering (the "PUBLIC OFFERING") by the several underwritersUnderwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of ___ shares (the "SHARES") of the Common Stock (Stock, par value $.008 .01 per share) Share, of the Company (the "COMMON STOCK"). To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) 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 sale of any Shares to the Underwriters pursuant to the Underwriting Agreement or (b) transactions relating to shares of Common Stock or other securities acquired in open market transactions after the completion of the Public Offering. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The foregoing provisions shall not apply to the sale or other transfer of shares of Common Stock by the undersigned to any associate (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934) of the undersigned; PROVIDED THAT, prior to any such sale or other transfer of shares of Common Stock, any such associated transferee agrees in writing to the restrictions on transfer set forth herein. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. In the event that the Public Offering shall not have been consummated on or before October 31, 1999, this Lock-Up Agreement shall be of no further force or effect. Very truly yours, -------------------------------- ------------------------------------ Name -------------------------------- Address Annex I Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP August 16, 1999 XXXXXX XXXXXXX & CO. INCORPORATED XXXXXXX SACHS & CO. XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INC. XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED As Representatives of the several U.S. Underwriters c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED XXXXXXX SACHS INTERNATIONAL XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL INC. XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL XXXXXXX XXXXX INTERNATIONAL As Representatives of the several International Underwriters c/o Morgan Xxxxxxx & Co. International Incorporated 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Re: xxxxxxxxx.xxx Incorporated Public Offering of Common Stock, par value $.008 per share -------------------------------- Ladies and Gentlemen: We have acted as special counsel to xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company") in connection with the Underwriting Agreement, dated August 10, 1999 (the "Underwriting Agreement"), between the Company, certain stockholders of the Company named therein (the "Selling Stockholders"), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Sachs & Co., Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as representatives of the several U.S. Underwriters named therein (the "U.S. Underwriters"), and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx Sachs International, Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx International Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx International and Xxxxxxx Xxxxx International as representatives of the several International Under writers named therein (the "International Underwriters" and together with the U.S. Underwriters, the "Underwriters"), relating to the sale to the several Underwriters by the Company of 2,000,000 shares (the "Primary Shares") of the Company's common stock, par value $.008 per share ("Common Stock") and by the Selling Stockholders of 3,500,000 shares of Common Stock (the "Secondary Shares" and together with the Primary Shares, the "Shares"). This opinion is being furnished pursuant to Section 6(c) of the Underwriting Agreement. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement on Form S-1 (File No. 333-83513) relating to the Shares, filed with the Securities and Exchange Commission (the "Commission") on July 23, 1999 under the Securities Act of 1933, as amended, (the "Act"), Amendment No. 1 thereto filed with the Commission on August 2, 1999 and Amendment No. 2 thereto filed with the Commission on August 10, 1999, including information deemed to be a part of the registration statement at the time of effectiveness pursuant to Rule 430A of the General Rules and Regulations under the Act (the "Rules and Regulations") (such Registration Statement, as so amended, being hereinafter referred to as the "Registration Statement"); (ii) the final prospectuses dated August 10, 1999 relating to the Shares in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (the "Prospectuses"); (iii) a specimen certificate representing the Common Stock; (iv) an executed copy of the Underwriting Agreement; (v) the Certificate of Incorporation of the Company, as currently in effect (the "Certificate of Incorporation"); (vi) the Bylaws of the Company, as currently in effect (the "By-laws");(vii) certain resolutions of the Board of Directors of the Company and a Pricing Committee of the Board of Directors of the Company; (viii) the Amended and Restated Registration Rights Agreement, dated as of December 8, 1998, among the Company, General Atlantic Partners 48, L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P., and the stockholders named therein (the "Registration Rights Agreement") and those other agreements and instruments listed on Schedule I hereto (together with the Registration Rights Agreement, the "Applicable Contracts"); (ix) executed acknowledgements from each of the parties to the Registration Rights Agreement (other than America West Airlines, Inc., Continental Airlines, Inc., Northwest Airlines, Inc. and Trans World Airlines, Inc. (the "Non-Consenting Stock holders") and the Company) consenting to the assignment of registration rights by certain stockholders and waiving rights to notice under the Registration Rights Agreement; and (x) an officer's certificate, dated the date hereof, a copy of which is attached as Exhibit A hereto. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies and the authenticity of the originals of such latter documents. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein which we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. In rendering the opinion set forth in paragraph 4 below, we have also assumed, with your consent, that the certificates representing the Primary Shares will be manually signed by one of the authorized officers of the Transfer Agent and Registrar for the Common Stock and registered by such Transfer Agent and Registrar and will conform to the specimen thereof examined by us.------------------------------------ Address
Appears in 1 contract
Xxxxxxx Xxxxx International. Xxxxxx Xxxxxxxx & Co. Limited................... --------------------------- Total International Firm Shares... 1,100,000 .................. 1,600,000 =========================== EXHIBIT A [FORM OF LOCK-UP LETTER] August ____________, 1999 1997 Xxxxxx Xxxxxxx & Co. Incorporated Xxxxxxx, Sachs & Co. Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx Inc. Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Deutsche Xxxxxx Xxxxxxxx Inc. c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx XX 00000 Xxxxxx Xxxxxxx & Co. International Limited Xxxxxxx Sachs International Xxxxx & Company Incorporated BancBoston Xxxxxxxxx Xxxxxxxx International Limited Xxxxxxxxx, Lufkin & Xxxxxxxx International Xxxxxxx Xxxxx International Xxxxxx Xxxxxxxx & Co. Limited c/o Morgan Xxxxxxx & Co. International Limited 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Dear Sirs and Mesdames: The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated ("XXXXXX XXXXXXX") and Xxxxxx Xxxxxxx & Co. International Limited ("MSIL") propose to enter into an Underwriting Agreement (the "UNDERWRITING AGREEMENT") with xxxxxxxxx.xxx Incorporated, a Delaware corporation Capital Trust (such trust and the trustees thereof acting in their capacities as such being referred to herein as the "COMPANY") ), a California business trust, providing for the public offering (the "PUBLIC OFFERING") by the several underwritersUnderwriters, including Xxxxxx Xxxxxxx and MSIL (the "UNDERWRITERS") of 8,000,000 shares (the "SHARES") of the Class A Common Stock (Shares of Beneficial Interest, $1.00 par value $.008 per share) of value, in the Company (the "CLASS A COMMON STOCKSHARES"). To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days one year after the date of the final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Class A Common Stock Shares or any securities convertible into or exercisable or exchangeable for Class A Common Stock Shares, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Class A Common StockShares, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Class A Common Stock Shares or such other securities, in cash or otherwise. In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days one year after the date of the Prospectus, make any demand for or exercise any right with respect to, the registration of any shares of Class A Common Stock Shares or any security convertible into or exercisable or exchangeable for Class A Common Stock. The foregoing provisions shall not apply to the sale or other transfer of shares of Common Stock by the undersigned to any associate (as such term is defined in Rule 12b-2 of the Securities Exchange Act of 1934) of the undersigned; PROVIDED THAT, prior to any such sale or other transfer of shares of Common Stock, any such associated transferee agrees in writing to the restrictions on transfer set forth hereinShares. Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters. In the event that the Public Offering shall not have been consummated on or before October 31, 1999, this Lock-Up Agreement shall be of no further force or effect. Very truly yours, -------------------------------- __________________________________________ Name -------------------------------- Address Annex I Opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP August 16, 1999 XXXXXX XXXXXXX & CO. INCORPORATED XXXXXXX SACHS & CO. XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INC. XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED As Representatives of the several U.S. Underwriters c/o Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED XXXXXXX SACHS INTERNATIONAL XXXXX & COMPANY INCORPORATED BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL INC. XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL XXXXXXX XXXXX INTERNATIONAL As Representatives of the several International Underwriters c/o Morgan Xxxxxxx & Co. International Incorporated 00 Xxxxx Xxxxxx Xxxxxx Xxxxx Xxxxxx X00 0XX England Re: xxxxxxxxx.xxx Incorporated Public Offering of Common Stock, par value $.008 per share -------------------------------- Ladies and Gentlemen: We have acted as special counsel to xxxxxxxxx.xxx Incorporated, a Delaware corporation (the "Company") in connection with the Underwriting Agreement, dated August 10, 1999 (the "Underwriting Agreement"), between the Company, certain stockholders of the Company named therein (the "Selling Stockholders"), Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxx Sachs & Co., Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx Inc., Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated as representatives of the several U.S. Underwriters named therein (the "U.S. Underwriters"), and Xxxxxx Xxxxxxx & Co. International Limited, Xxxxxxx Sachs International, Xxxxx & Company Incorporated, BancBoston Xxxxxxxxx Xxxxxxxx International Inc., Xxxxxxxxx, Lufkin & Xxxxxxxx International and Xxxxxxx Xxxxx International as representatives of the several International Under writers named therein (the "International Underwriters" and together with the U.S. Underwriters, the "Underwriters"), relating to the sale to the several Underwriters by the Company of 2,000,000 shares (the "Primary Shares") of the Company's common stock, par value $.008 per share ("Common Stock") and by the Selling Stockholders of 3,500,000 shares of Common Stock (the "Secondary Shares" and together with the Primary Shares, the "Shares"). This opinion is being furnished pursuant to Section 6(c) of the Underwriting Agreement. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement on Form S-1 (File No. 333-83513) relating to the Shares, filed with the Securities and Exchange Commission (the "Commission") on July 23, 1999 under the Securities Act of 1933, as amended, (the "Act"), Amendment No. 1 thereto filed with the Commission on August 2, 1999 and Amendment No. 2 thereto filed with the Commission on August 10, 1999, including information deemed to be a part of the registration statement at the time of effectiveness pursuant to Rule 430A of the General Rules and Regulations under the Act (the "Rules and Regulations") (such Registration Statement, as so amended, being hereinafter referred to as the "Registration Statement"); (ii) the final prospectuses dated August 10, 1999 relating to the Shares in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations (the "Prospectuses"); (iii) a specimen certificate representing the Common Stock; (iv) an executed copy of the Underwriting Agreement; (v) the Certificate of Incorporation of the Company, as currently in effect (the "Certificate of Incorporation"); (vi) the Bylaws of the Company, as currently in effect (the "By-laws");(vii) certain resolutions of the Board of Directors of the Company and a Pricing Committee of the Board of Directors of the Company; (viii) the Amended and Restated Registration Rights Agreement, dated as of December 8, 1998, among the Company, General Atlantic Partners 48, L.P., GAP Coinvestment Partners, L.P., General Atlantic Partners 50, L.P., and the stockholders named therein (the "Registration Rights Agreement") and those other agreements and instruments listed on Schedule I hereto (together with the Registration Rights Agreement, the "Applicable Contracts"); (ix) executed acknowledgements from each of the parties to the Registration Rights Agreement (other than America West Airlines, Inc., Continental Airlines, Inc., Northwest Airlines, Inc. and Trans World Airlines, Inc. (the "Non-Consenting Stock holders") and the Company) consenting to the assignment of registration rights by certain stockholders and waiving rights to notice under the Registration Rights Agreement; and (x) an officer's certificate, dated the date hereof, a copy of which is attached as Exhibit A hereto. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates of public officials, certificates of officers or other representatives of the Company and others, and such other documents, certificates and records as we have deemed necessary or appropriate as a basis for the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies and the authenticity of the originals of such latter documents. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts material to the opinions expressed herein which we did not independently establish or verify, we have relied upon oral or written statements and representations of officers and other representatives of the Company and others. In rendering the opinion set forth in paragraph 4 below, we have also assumed, with your consent, that the certificates representing the Primary Shares will be manually signed by one of the authorized officers of the Transfer Agent and Registrar for the Common Stock and registered by such Transfer Agent and Registrar and will conform to the specimen thereof examined by us.__________________________________________ Address
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