Exhibit 1.1
Proof of April 15, 1999
ZIPLINK, INC.
3,500,000 Shares
Common Stock
UNDERWRITING AGREEMENT
▇▇▇▇▇▇▇▇▇ & Company, Inc.
First Albany Corporation
As Representatives of the Several
Underwriters Named in Schedule I
c/o JEFFERIES & COMPANY, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ZipLink, Inc., a Delaware corporation (the "Company"), hereby confirms its
agreement with the underwriters named in Schedule I hereto (the "Underwriters"),
with respect to the sale by the Company and the purchase by the Underwriters of
3,500,000 shares (the "Firm Shares") of the Company's common stock, $.001 par
value (the "Common Stock"). The Company has also agreed to sell up to an
aggregate of 525,000 shares (the "Additional Shares") of Common Stock to cover
over-allotments, if any. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares."
You have advised us that, subject to the terms and conditions herein
contained, you desire to purchase the Firm Shares and that you propose to make
an initial public offering of the Firm Shares as soon as you deem advisable
after the Registration Statement referred to below becomes effective.
The terms that follow, when used in this Agreement, shall have the
meanings indicated. "Preliminary Prospectus" shall mean each prospectus subject
to completion included in the Company's registration statement on Form S-1
referred to in Section 1(a)(i) below or any amendment or post-effective
amendment thereto (including the prospectus subject to completion included in
the Registration Statement (as defined below) on the date that the Registration
Statement becomes effective (the "Effective Date") that omits Rule 430A
Information (as defined below)). "Registration Statement" shall mean the
registration statement referred to in Section 1(a)(i) below,
including all financial statement schedules and exhibits, as amended at the
Representation Date (as defined in Section 1(a) hereof) (or, if not effective at
the Representation Date, in the form in which it shall become effective) and, if
any post-effective amendment thereto becomes effective prior to the Closing Date
(as defined in Section 2 hereof), shall also mean such registration statement as
so amended. The term "Registration Statement" shall include Rule 430A
Information deemed to be included therein at the Effective Date as provided by
Rule 430A (as defined below). If the Company files an abbreviated registration
statement to register additional shares of Common Stock pursuant to Rule 462(b)
(the "Rule 462 Registration Statement") under the Securities Act of 1933, as
amended (the "Act"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
"Prospectus" shall mean (x) if the Company relies on Rule 434 under the Act, the
Term Sheet (as defined below) relating to the Shares that is first filed
pursuant to Rule 424(b)(7) under the Act, together with the Preliminary
Prospectus identified therein that the Term Sheet supplements, or (y) if the
Company does not rely on Rule 434 under the Act, the prospectus first filed with
the Securities and Exchange Commission (the "Commission") pursuant to Rule
424(b) under the Act, or, if no prospectus is required to be filed pursuant to
Rule 424(b) under the Act, the prospectus included in the Registration
Statement. "Term Sheet" shall mean any term sheet that satisfies the
requirements of Rule 434 under the Act. "Rule 158," "Rule 424," "Rule 434" and
"Rule 430A" refer to such rules under the Act (the rules and regulations under
the Act, the "Act Regulations"). "Rule 430A Information" means information with
respect to the Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. For
purposes of the representations and warranties contained herein, to the extent
reference is made to the Prospectus and at the relevant time the Prospectus is
not yet in existence, such reference shall be deemed to be to the most recent
Preliminary Prospectus. For purposes of this Agreement, all references to the
Registration Statement, Prospectus, Preliminary Prospectus or Term Sheet or to
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering
Analysis and Retrieval system ("▇▇▇▇▇").
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to, and agrees with, each of
the Underwriters as of the date hereof (such date being referred to as the
"Representation Date"), as follows:
(i) The Company meets the requirements for use of Form S-1
under the Act and has filed with the Commission a registration statement
(Registration No. 333-74273) on such form, including a prospectus subject to
completion, for the registration under the Act of the offering and sale of the
Shares. The Company may have filed one or more amendments thereto, including the
related prospectus subject to completion, each of which has previously been
furnished to the Underwriters. After the execution of this Agreement, the
Company will file with the Commission either (A) prior to effectiveness of such
registration statement, a further amendment to such registration statement
(including a form of prospectus), a copy of which amendment has been furnished
to and approved by the Underwriters prior to the execution of this Agreement, or
(B) after
-2-
effectiveness of such registration statement, either (1) if the Company relies
on Rule 434 under the Act, a Term Sheet relating to the Shares that shall
identify the Preliminary Prospectus that it supplements containing such
information as is required or permitted by Rules 434, 430A and 424(b) under the
Act or (2) if the Company does not rely on Rule 434 under the Act, a prospectus
in the form most recently included in an amendment to such registration
statement (or, if no amendment shall have been filed, in such registration
statement) in accordance with Rules 430A and 424(b) of the Act Regulations and
as have been provided to and approved by the Underwriters prior to execution of
this Agreement.
(ii) Neither the Commission nor any "blue sky" or securities
authority of any jurisdiction in which the Shares have been offered has issued
any order preventing or suspending the use of any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto. When any Preliminary
Prospectus was filed with the Commission it (A) complied in all material
respects with the applicable requirements of the Act and the Act Regulations and
(B) did 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, in the light of the circumstances under which they were
made, not misleading and each Preliminary Prospectus and the Prospectus
delivered to the Underwriters for use in connection with the offering of Shares
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T under the Act. On the Effective Date,
the Representation Date and each Closing Date, the Registration Statement did
and will, and when the Prospectus or any Term Sheet that is a part thereof is
first filed (if required) in accordance with Rule 424(b) and on the
Representation Date and each Closing Date, the Prospectus will, comply in all
material respects with the applicable requirements of the Act and the Act
Regulations; on the Effective Date, the Representation Date and each Closing
Date, the Registration Statement did not and 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; on the Effective Date, the Representation Date and each Closing
Date, and on the date of any filing pursuant to Rule 424(b), the Prospectus or
any Term Sheet that is a part thereof did not and 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, that the Company makes no
representations or warranties as to the information provided in writing to the
Company by or on behalf of the Underwriters expressly for use in any Preliminary
Prospectus, the Registration Statement or the Prospectus, and the Company agrees
that the only information provided in writing by or on behalf of Underwriters to
the Company expressly for use in any Preliminary Prospectus, the Registration
Statement or the Prospectus is, the table of Underwriters set forth under the
caption "Underwriting" in the Prospectus, the amounts of the selling concession
and reallowance set forth in the Prospectus and the last three paragraphs under
the caption "Underwriting" in the Prospectus.
(iii) The Agreement and Plan of Merger dated March 5, 1999
(the "LLC Merger Agreement") by and between ZipLink, LLC, a Connecticut limited
liability company (the "Connecticut LLC"), and ZipLink, LLC, a Delaware limited
liability company (the "Delaware
-3-
LLC") was duly authorized by all necessary board of managers and member action
on the part of the Connecticut LLC and all necessary boards of managers and
member action on the part of the Delaware LLC. The merger contemplated by the
LLC Merger Agreement is effective under the laws of the State of Connecticut and
the State of Delaware. The execution and delivery of the LLC Merger Agreement
and the consummation of the merger contemplated thereby did not contravene any
provision of applicable Federal, Connecticut or Delaware law or the respective
Certificates of Formation, Limited Liability Operating Agreements or Bylaws of
the either limited liability company or any agreement or other instrument
binding upon the limited liability companies, or any judgment or decree of any
governmental body, agency or court having jurisdiction over either limited
liability company, and no consent, approval, authorization or order of or
qualification with any governmental body or agency was required for the
performance by the limited liability companies of their respective obligations
under the LLC Merger Agreement except such as were obtained. In connection with
the LLC Merger Agreement and the transactions contemplated thereby, the
Connecticut LLC and the Delaware LLC obtained all necessary consents, approvals
and authorizations required to assign and transfer all material contracts to
which the Connecticut LLC was a party to the Delaware LLC so that the Delaware
LLC was made a party, in place of the Connecticut LLC or, as assignee.
(iv) The Agreement and Plan of Merger dated ___________, 1999
(the "Company Merger Agreement") by and between the Company and ZipLink, LLC, a
Delaware limited liability company, has been duly authorized by all necessary
board of directors and stockholder action on the part of the Company and all
necessary boards of managers and member action on the part of the Delaware LLC
and has been duly executed and delivered by each of the parties thereto. The
merger contemplated by the Company Merger Agreement is effective under the laws
of the State of Delaware. The execution and delivery of the Company Merger
Agreement and the consummation of the merger contemplated thereby did not
contravene any provision of applicable Federal or Delaware law or Certificate of
Formation, Limited Liability Operating Agreements or Bylaws of the Delaware LLC
or any agreement or other instrument binding upon the Delaware LLC or the
Company, any judgment or decree of any governmental body, agency or court having
jurisdiction over the Company or Delaware LLC, and no consent, approval,
authorization or order of or qualifications with any governmental body or agency
was required for the performance by the Company and Delaware LLC of the
respective obligations under the Company Merger Agreement except such as have
been obtained. In connection with the Company Merger Agreement and the
transactions contemplated thereby, the Company and the Delaware LLC have
obtained all necessary consents, approvals and authorizations required to assign
and transfer all material contracts to which the Delaware LLC was a party to the
Company so that the Company was made a party, in place of Delaware LLC or, as
assignee.
(v) The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware, with all
requisite corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement and the
Prospectus, and is duly qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature or location of its
properties (owned or
-4-
leased) or the conduct of its business requires such qualification, except where
the failure so to qualify would not have an adverse effect on the condition
(financial or other), business, properties, prospects, net worth or results of
operations of the Company that is or would be, singly or in the aggregate,
material to the Company, whether or not occurring in the ordinary course of
business (a "Material Adverse Effect").
(vi) The Company possesses all authorizations, approvals,
orders, licenses, certificates, franchises and permits of and from, and have
made all declarations and filings with, all regulatory or governmental
officials, bodies and tribunals ("Permits") to own, lease or operate its
property and to conduct its business described in the Registration Statement and
the Prospectus, except where failure to have obtained or made the same would not
have a Material Adverse Effect, and the Company has not received any notice of
proceedings relating to the revocation or modification of any such Permits. The
Company has fulfilled and performed all its current material obligations with
respect to such Permits and no event has occurred that allows, or after notice
or lapse of time, or both, would allow, revocation or termination thereof or
result in any other material impairment of the rights of the holder of any such
Permit and such Permits contain no restrictions that are materially burdensome
to the Company and the Company is in compliance with all applicable laws, rules,
regulations, orders and consents, the violation of which would have a Material
Adverse Effect. The property and business of the Company conform in all material
respects to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(vii) All of the Company's issued and outstanding capital
stock has been duly authorized, validly issued and is fully paid and
nonassessable, and the Common Stock and the capitalization of the Company
conform to the descriptions thereof and the statements made with respect thereto
in the Registration Statement and the Prospectus as of the date set forth
therein. None of the issued shares of Common Stock have been issued in violation
of any preemptive or other rights to subscribe for or purchase shares of capital
stock of the Company. There are no outstanding securities convertible into or
exchangeable for, and no outstanding options, warrants or other rights to
purchase, any shares of the capital stock of the Company, nor any agreements or
commitments to issue any of the same except as described in the Registration
Statement and Prospectus, and there are no preemptive or other rights to
subscribe for or to purchase, and no restrictions upon the voting or transfer
of, any capital stock of the Company pursuant to the Company's certificate of
incorporation or by-laws or any agreement or other instrument to which the
Company is a party. All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times exempt from the registration
requirements of the Act, and were duly registered or the subject of an available
exemption from the registration requirements of the applicable state securities
or blue sky laws.
(viii) The Company has good and marketable title to, and is
possessed of, each property, right, interest or estate constituting the
properties and assets described in the Registration Statement and the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances and
restrictions, except such as are described in the Registration Statement and the
Prospectus. The Company has valid, subsisting and enforceable leases for the
properties described
-5-
in the Registration Statement and the Prospectus as leased by it and no event
has occurred which, with the passage of time or the giving of notice or both,
would cause a material breach of, or default under any such lease.
(ix) The Company has all requisite power, authority,
authorizations, approvals, orders, licenses, certificates and permits to enter
into this Agreement and to carry out the provisions and conditions hereof,
including the issuance and delivery of the Shares to the Underwriters as
provided herein. This Agreement has been duly and validly authorized by the
Company, and this Agreement has been duly executed and delivered by the Company
and constitutes a legal, valid and binding agreement of the Company, enforceable
against it in accordance with its terms, except to the extent rights to
indemnity hereunder may be limited by Federal or state securities laws or public
policy underlying such laws and except to the extent the enforcement hereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
equitable principles.
(x) Except as disclosed in the Registration Statement and the
Prospectus, the Company owns or possesses adequate licenses or other rights to
use, free and clear of all liens, charges, claims, encumbrances and restrictions
of any kind whatsoever, all patents, trademarks, service marks, trade names,
copyrights, trade secrets, domain names, technology and licenses, and rights
with respect to the foregoing, used by it or which are necessary in the conduct
of its business as currently or proposed, under development or, to be conducted
by the Company, as described in the Prospectus, and except as disclosed in the
Registration Statement and the Prospectus, the Company is not obligated or under
any liability whatsoever to make any payments by way of royalties, fees or
otherwise to any owner or licensee of, or other claimant to, any patent,
trademark, service ▇▇▇▇, trade name, copyright, trade secret, know-how,
technology or other intangible asset, with respect to the use thereof or in
connection with the conduct of its business or otherwise. None of the technology
employed by the Company has been obtained or is being used by the Company in
violation of any contractual fiduciary obligation binding on the Company or, to
the knowledge of the Company, its officers, directors or employees or otherwise
in violation of the rights of any person. Except as disclosed in the
Registration Statement and the Prospectus, the Company has not received any
notice of infringement of or conflict with (and knows of no such infringement of
or conflict with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights, trade secrets, domain names,
technology or licenses, or rights with respect to the foregoing which could
result in any Material Adverse Effect; and, except as disclosed in the
Registration Statement and Prospectus, the discoveries, inventions, products or
processes of the Company referred to in the Prospectus do not infringe or
conflict with any right or patent of any third party, or any discovery,
invention, product or process which is the subject of a patent application filed
by any third party, known to the Company.
(xi) The Company has reviewed its operations and the
operations of any third parties with which the Company has a material
relationship to evaluate the extent to which the business or operations of the
Company will be affected by Year 2000 issues. As a result of such review, the
Company represents and warrants that the disclosure in the Registration
Statement
-6-
relating to Year 2000 issues is accurate and complies in all material respects
with the rules and regulations of the Act. "Year 2000 issues" as used herein
means Year 2000 issues described in or contemplated by the Commission's
Interpretation: Disclosure of Year 2000 Issues and Consequences by Public
Companies, Investment Advisors, Investment Companies, and Municipal Securities
Issuers (Release No. 33-7558).
(xii) The Shares to be sold by the Company have been duly and
validly authorized for issuance by the Company and the Company has the corporate
power and authority to issue, sell and deliver the Shares; and, when the Shares
are issued and delivered against payment therefor as provided by this Agreement,
the Shares will have been validly issued, fully paid and nonassessable, and the
issuance of such Shares will not be subject to any preemptive or similar rights.
All corporate action required to be taken by the stockholders or the Board of
Directors of the Company for the authorization, issuance and sale of the Shares
has been duly and validly taken.
(xiii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, whose reports are filed with the
Commission as part of the Registration Statement, are independent certified
public accountants with respect to the Company, under the meaning of and as
required by the Act and the Act Regulations.
(xiv) The financial statements and related schedules and notes
included in the Registration Statement and the Prospectus present fairly, in all
material respects, the financial position of the Company, on the basis stated in
the Registration Statement, as of the respective dates thereof and the results
of operations and cash flows of the Company, for the respective periods covered
thereby, all in conformity with generally accepted accounting principles applied
on a consistent basis throughout the entire period involved, except as otherwise
disclosed in the Registration Statement and the Prospectus. The selected
financial information included under the caption "Selected Financial Data" in
the Prospectus presents fairly the information shown therein and has been
compiled on a basis consistent with that of the audited financial statements of
the Company included therein. No other financial statements or schedules of the
Company are required by the Act or the Act Regulations to be included in the
Registration Statement or Prospectus. The Company is not currently planning any
acquisition for which disclosure of pro forma financial information would be
required by the Act.
(xv) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xvi) The Company maintains insurance covering its properties,
operations, personnel and businesses. Such insurance insures against such losses
and risks and in such amounts
-7-
as are prudent and customary in the business in which it is engaged. 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 have a Material Adverse Effect. All such insurance is
outstanding and duly in force on the date hereof.
(xvii) The Company is in compliance with all Federal, state,
local or foreign laws or regulations relating to pollution or protection of
human health or the environment ("Environmental Laws"), except where the failure
to be in compliance would not have a Material Adverse Effect. The Company has
not authorized, conducted and has no knowledge of the generation,
transportation, storage, use, treatment, disposal or release of any hazardous
substance, hazardous waste, hazardous material, hazardous constituent, toxic
substance, pollutant, contaminant, petroleum product, natural gas, liquified gas
or synthetic gas, defined or regulated under any Environmental Law on, in or
under any property currently leased or owned or by any means controlled by the
Company (the "Real Property") in violation of any applicable law, except for any
violation which would not have a Material Adverse Effect; there is no pending
or, to the Company's knowledge, threatened claim, action, litigation or any
administrative agency proceeding involving the Company, nor has the Company
received any written notice, or any oral notice to any executive officer of the
Company or any other employee responsible for receipt of any such notice, from
any governmental entity or third party, that (A) alleges a violation of any
Environmental Laws by the Company or any person or entity whose liability for a
violation of an Environmental Law the Company has retained or assumed either
contractually or by operation of law, which liability or violation could be
reasonably expected to have a Material Adverse Effect; (B) alleges the Company
is a liable party under the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. ss. 9601 eT Seq., or any state superfund law; (C)
alleges possible contamination of the environment by the Company; or (D) alleges
possible contamination of the Real Property.
(xviii) The Company is not in violation of its certificate of
incorporation or by-laws. The Company is not, and with the passage of time or
the giving of notice or both would not be, in violation of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company, or
of any judgment, order or decree of any court or governmental agency or body or
of any arbitrator having jurisdiction over the Company which would have a
Material Adverse Effect, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any mortgage, loan
agreement, note, bond, debenture, credit agreement or any other evidence of
indebtedness or in any agreement, contract, indenture, lease or other instrument
to which the Company is a party or by which the Company is bound, or to which
any of the property or assets of the Company is subject, the effect of which
violation or default in performance or observance would have a Material Adverse
Effect.
(xix) There is no action, suit or proceeding before or by any
court, arbitrator or governmental agency or body pending or, to the Company's
knowledge, threatened, against the Company, (A) that is required to be described
in the Registration Statement or the Prospectus but
-8-
is not described as required or (B) that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect. There is no agreement,
contract, indenture, lease or other document or instrument that is required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described or filed as
required. All such agreements to which the Company is a party have been duly
authorized, executed and delivered by the Company, constitute valid and binding
agreements of the Company, and are enforceable against the Company in accordance
with the terms thereof.
(xx) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (A) the Company (1) has not issued any securities
other than in connection with the exercise of any outstanding options or
warrants, (2) incurred any material liability or obligation, direct or
contingent, for borrowed money, (3) entered into any transaction, not in the
ordinary course of business, that is material to the Company, (4) entered into
any transaction with an affiliate of the Company (as the term "affiliate" is
defined in Rule 405 promulgated by the Commission pursuant to the Act), which
would otherwise be required to be disclosed in the Registration Statement and
the Prospectus, or (5) declared or paid any dividend on its capital stock or
made any other distribution to its equity holders, (B) there has not been any
material change in the capital stock or other equity, or material increase in
the short-term debt or long-term debt, of the Company and (C) there has been no
change or development with respect to the condition (financial or otherwise),
business, properties, prospects, net worth or results of operations of the
Company that could have a Material Adverse Effect.
(xxi) Neither the execution, delivery or performance of this
Agreement, the offer, issuance, sale or delivery of the Shares, nor the
consummation of the other transactions contemplated hereby (A) requires the
consent, approval, authorization or order of any court or governmental agency or
body, 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 Shares by the Underwriters or such as may be
required by the National Association of Securities Dealers, Inc. (the "NASD")
and such other approvals as have been obtained, (B) will conflict with, result
in a breach or violation of, or constitute a default under the terms of any
agreement, contract, indenture, lease or other instrument to which the Company
is a party or by which it or any of its properties may be bound, or the
certificate of incorporation or by-laws of the Company; or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or an acceleration of indebtedness pursuant to the terms
of any agreement or instrument to which it may be bound or to which it is a
party or by which it property or assets of any of the Company is subject, or (C)
will conflict with or violate any law, statute or regulation, or any judgment,
order, consent or memorandum of understanding applicable to the Company of any
court, regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Company or its properties.
(xxii) The Company has not distributed and, prior to the later
to occur of (A) the Closing Date or (B) completion of the distribution of the
Shares, will not distribute without the prior written consent of Jefferies &
Company, Inc. ("Jefferies") any offering material in
-9-
connection with the offering and sale of the Shares other than the Registration
Statement, any Preliminary Prospectus, the Prospectus or other materials, if
any, permitted by the Act and the Act Regulations.
(xxiii) Neither the Company nor any employee or agent of the
Company has made any payment of funds of the Company or received or retained any
funds, in violation of any law, rule or regulation, or which payment, receipt or
retention of funds is of a character required to be disclosed in the
Registration Statement or the Prospectus.
(xxiv) The Company is not involved in any labor dispute and,
to the knowledge of the Company, no such dispute is threatened.
(xxv) The Company, the Connecticut LLC and the Delaware LLC
have each filed all Federal, state, local tax returns that are required to be
filed, which returns are complete and correct in all material respects and have
paid all taxes shown on such returns required to be paid by it and all
assessments received by them with respect thereto to the extent that the same
have become due, except those taxes that are being contested or protested in
good faith by the Company or either limited liability company and as to which
any reserves required under generally accepted accounting principles have been
established; the Company does not have knowledge of any tax deficiency which has
been or might be asserted or threatened against the Company or either limited
liability company which could have a Material Adverse Effect.
(xxvi) The Company does not own or control (directly or
indirectly), or own or hold any right to acquire any share of stock or any other
securities of any corporation or have any equity interest in any firm,
partnership, association or other entity.
(xxvii) No holder of any security of the Company has the right
(other than a right which has been waived in writing or complied with) to have
any security owned by such holder included in the Registration Statement and,
except as described in the Registration Statement and the Prospectus, no holder
of any security of the Company has the right to demand registration of any
security owned by such holder during the period ending 12 months after the date
of the Prospectus.
(xxviii) The Company and its respective officers, directors,
employees or agents have not taken or will not take, directly or indirectly, (A)
any action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Shares, or (B) since the filing of the Registration Statement (1) sold, bid for,
purchased or paid anyone any compensation for soliciting purchases of, the
Shares or (2) paid or agreed to pay any person any compensation for soliciting
another to purchase any securities of the Company.
(xxix) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and is not subject to
registration under such act,
-10-
and does expect to be treated as such by reason of its receipt and application
of the net proceeds from the offering of the Shares.
(xxx) The Company has obtained from each of its officers,
directors and stockholders a written agreement (the "Lock-Up Agreements"), in
form and substance satisfactory to counsel for the Underwriters, that, for a
period of 180 days from the date of the Prospectus, he, she or it will not,
without Jefferies' prior written consent, offer, sell, contract to sell, grant
any option for the sale of, or otherwise dispose of, directly or indirectly, any
shares of Common Stock or any security convertible into, or exchangeable or
exercisable for, shares of Common Stock or other securities of the Company;
provided, however, that such persons may offer, sell, contract to sell, grant an
option for the sale or otherwise dispose of all or any part of his, her or its
Common Stock, or securities convertible, or otherwise exchangeable or
exercisable for shares of Common Stock during such period only if such
transaction is private in nature and the transferee agrees, prior to such
transaction, to be bound in writing by all of the provisions of such agreement.
(xxxi) No transfer tax stamp duty or other similar tax is
payable by or on behalf of the Underwriters in connection with (i) the issuance
by the Company of the Firm Shares and the Additional Shares, (ii) the purchase
by the Underwriters of the Firm Shares or Additional Shares from the Company or
(iii) the consummation by the Company of any of its obligations under this
Agreement.
(xxxii) To the Company's knowledge, no officer, director or
stockholder has any affiliation or association with the National Association of
Securities Dealers, Inc. (the "NASD") or any member thereof, except as described
in the Registration Statement and the Prospectus.
(b) Any certificate signed by any officer of the Company delivered
to the Underwriters or to counsel for the Underwriters pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the Company to
the Underwriters as to the matters covered thereby.
2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $__________ per share (the
"Initial Price"), the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto.
(b) The Company grants to the Underwriters an option to purchase all
or any part of the Additional Shares at the Initial Price. Additional Shares
shall be purchased from the Company, for the accounts of the Underwriters in
proportion to the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter. Such option may be exercised only to cover
over-allotments in the sale of the Firm Shares by the Underwriters and may be
exercised in
-11-
whole or in part at any time and from time to time, but no more than twice,
within 30 days after the date of this Agreement, in each case upon written or
facsimile notice, or verbal or telephonic notice confirmed by written or
telegraphic notice, by the Underwriters to the Company no later than 12:00 noon,
New York City time, on the business day before the Firm Shares Closing Date (as
hereinafter defined) or at least two business days before the Additional Shares
Closing Date (as hereinafter defined), as the case may be, setting forth the
number of Additional Shares to be purchased and the time and date (if other than
the Firm Shares Closing Date) of such purchase.
(c) Payment of the purchase price for, and delivery of, the Firm
Shares to be purchased by the Underwriters shall be made at the offices of
▇▇▇▇▇▇▇▇▇ & Company, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, Attention: Syndicate
Operations, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed
upon by the Underwriters and the Company at 10:00 A.M. on the third (fourth, if
the pricing occurred after 4:30 p.m. on any given day) business day after the
date of this Agreement, or such other time not later than ten business days
after such date as shall be agreed upon by the Underwriters and the Company
(such time and date of payment and delivery being herein called the "Firm Shares
Closing Date"). Payment shall be made to the Company by wire transfer and
payable in immediately available funds to the order of the Company against
delivery to the Underwriters of the Firm Shares.
(d) Payment of the purchase price for, and delivery of, the
Additional Shares to be purchased by the Underwriters shall be made at the
office as set forth above or at such other place as shall be agreed upon by the
Underwriters and the Company at the time and on the date (which may be the same
as, but in no event shall be earlier than, the Firm Shares Closing Date)
specified in the notice referred to in Section 2(b) hereof (such time and date
of delivery and payment are called the "Additional Shares Closing Date"). The
Firm Shares Closing Date and the Additional Shares Closing Date are called,
individually, a "Closing Date" and together, the "Closing Dates". Payment shall
be made to the Company by wire transfer and payable in immediately available
funds to the order of the Company.
(e) The Shares shall be in such denominations and registered in such
names as the Underwriters may request in writing at least two business days
before the Firm Shares Closing Date or, in the case of the Additional Shares, on
the day of notice of exercise of the option as described in Section 2(b) hereof.
The Shares will be made available for examination and packaging by the
Underwriters not later than 1:00 P.M. on the last business day prior to the Firm
Shares Closing Date (or the Additional Shares Closing Date in the case of the
Additional Shares) at such place as is designated by the Underwriters. If the
Underwriters so elect, delivery of the Shares may be made by credit through full
FAST transfer to the accounts of The Depository Trust Company designated by the
Underwriters.
3. COVENANTS.
(a) The Company covenants with each Underwriter as follows:
-12-
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Representation Date, and any
amendment thereto, to become effective, as promptly as possible after the filing
thereof. The Company will not file any amendment to the Registration Statement
or amendment or supplement to the Prospectus to which the Underwriters shall
reasonably object in writing after a reasonable opportunity to review such
amendment or supplement. Subject to the foregoing sentences in this clause
3(a)(i), if the Registration Statement has become or becomes effective pursuant
to Rule 430A, or filing of the Prospectus or any Term Sheet that constitutes a
part thereof or supplement to the Prospectus is otherwise required under Rule
424(b), the Company will cause the Prospectus or any Term Sheet that constitutes
a part thereof, properly completed, or such supplement thereto, to be filed with
the Commission pursuant to Rule 434 and the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will promptly advise the
Underwriters (A) when the Registration Statement, if not effective at the
Representation Date, and any amendment thereto, shall have become effective, (B)
when the Prospectus or any Term Sheet that constitutes a part thereof, and any
supplement thereto, shall have been filed (if required) with the Commission
pursuant to Rule 434 and 424(b), (C) when any amendment to the Registration
Statement shall have been filed or become effective, (D) of any request by the
Commission for any amendment of or supplement to the Registration Statement or
any Prospectus or for any additional information, (E) of the receipt by the
Company of any notification of, or if the Company otherwise has knowledge 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, (F) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the lifting
thereof.
(ii) If, at any time when a prospectus relating to the Shares
is required to be delivered under the Act or the Act Regulations, any event
occurs as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or amend or supplement the Prospectus to comply with
the Act or the Act Regulations, the Company promptly will prepare and file with
the Commission, at the Company's expense, subject to the second sentence of
Section 3(a)(i) hereof, an amendment or supplement which will correct such
statement or omission or effect such compliance and will use its best efforts to
cause the same to become effective as soon as possible; and in case any
Underwriter is required to deliver a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act, the Company upon request, but at the
expense of such Underwriter, will promptly prepare such amendment or amendments
to the Registration Statement and such Prospectus as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act. Neither consent
to, nor delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 5.
-13-
(iii) During such period as a prospectus is required by law to
be delivered in connection with sales by an Underwriter or dealer, the Company,
at its expense, but only for the nine-month period referred to in Section
10(a)(3) of the Act, will furnish to each Underwriter or mail to its order
copies of the Registration Statement, the Prospectus, the Preliminary Prospectus
and all amendments and supplements to any such documents in each case as soon as
available and in such quantities as such Underwriter may request, for the
purposes contemplated by the Act.
(iv) The Company consents to the use of the Prospectus in
accordance with the provisions of the Act and with the securities or blue sky
laws of the jurisdictions in which the Shares are offered by the Underwriters
and by all dealers to whom Shares may be sold, both in connection with the
offering and sale of the Shares and for such period of time thereafter as the
Prospectus is required by the Act to be delivered in connection with the sales
by any Underwriter or dealer. The Company will comply with all requirements
imposed upon it by the Act, as now and hereafter amended, so far as necessary to
permit the continuance of sales of or dealing in the Shares in accordance with
the provisions hereof and the Prospectus.
(v) As soon as practicable, but in any event not later than
forty-five (45) days after the end of the 12-month period beginning at the end
of the fiscal quarter of the Company during which the Effective Date occurs (or
90 days, if such 12-month period coincides with the Company's fiscal year) the
Company will make generally available to its security holders and to the
Underwriters a consolidated earnings statement or statements of the Company
covering a twelve-month period beginning with the first full calendar quarter
following the Effective Date which will satisfy the provisions of Section 11(a)
of the Act and Rule 158 thereunder.
(vi) The Company will, without charge, furnish (A) to the
Underwriters, three signed copies of the Registration Statement (including
exhibits thereto), (B) to each Underwriter, a conformed copy of such
Registration Statement (without exhibits thereto) and (C) so long as delivery of
a prospectus by an Underwriter or dealer may be required by the Act, as many
copies of the Prospectus and all amendments and supplements thereto as the
Underwriters may reasonably request. The copies of the Registration Statement,
and each amendment thereto, and the copies of the Prospectus, and any amendments
or supplements thereto, furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(vii) During the period of three years hereafter the Company
will furnish to the Underwriters as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Underwriters as soon as available, a copy of each
report or definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders.
-14-
(viii) The Company will apply the net proceeds from the
offering and sale of the Shares to be sold by the Company in accordance with the
description set forth in the "Use of Proceeds" section of the Prospectus.
(ix) The Company will cooperate with the Underwriters and
their counsel in connection with endeavoring to obtain and maintain the
qualification or registration, or exemption from qualification, of the Shares
for offer and sale under the applicable securities laws of such states and other
jurisdictions of the United States as the Underwriters may designate; PROVIDED,
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to taxation or general service of process in any jurisdiction where
it is not now so subject.
(x) The Company will not at any time, directly or indirectly
(A) take any action designed to cause or result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of any of the Shares, or (B) (1) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of, the Shares or (2) pay or agree to
pay any person any compensation for soliciting another to purchase any other
securities of the Company.
(xi) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(xii) The Company will not, directly or indirectly, for a
period of 180 days following the date of the Prospectus, without the prior
written consent of Jefferies, offer, sell, contract to sell, or grant any option
to purchase or otherwise dispose of, any shares of Common Stock or any
securities convertible into, or exchangeable for, shares of Common Stock, or
register for sale under the Act any shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock, other than (A)
pursuant to any employee stock option plan of the Company in effect at the
Representation Date or (B) upon exercise of any options or warrants outstanding
at the Representation Date.
(xiii) The Company shall cause the Shares to be quoted on the
Nasdaq National Market and shall use its best efforts to maintain such trading
while the Shares are outstanding.
(xiv) Until the expiration of the 180-day period following the
date of the Prospectus, the Company shall not (i) instruct its transfer agent
and registrar to remove the "Stop Transfer Order" placed on the transferability
of securities of the Company owned by its officers, directors and stockholders
without the prior written consent of Jefferies or (ii) file a registration
statement on Form S-8 under the Act covering shares of Common Stock reserved for
issuance under the Company's 1999 Stock Option Plan without the prior written
consent of Jefferies.
-15-
(xv) The Company will not, prior to the later of 25 days after
the Effective Date or any Additional Shares Closing Date, as the case may be,
issue any press release or other communication, directly or indirectly, or hold
any press conferences with respect to the Company or the offering without the
prior written consent of Jefferies, which consent will not be unreasonably
withheld.
(xvi) Until the expiration of three years from the Effective
Date, the Company will not effect a change in the independent certified public
accountants for the Company unless either the Company has received Jefferies'
prior written consent, which consent will not be unreasonably withheld, or such
substitute independent certified public accountant is one of the "big six"
firms, or an international affiliate thereof.
4. PAYMENT OF EXPENSES.
(a) The Company covenants and agrees with the Underwriters that the
Company will pay (directly or by reimbursement): (i) the fees, disbursements and
expenses of counsel and accountants for the Company, and all other expenses, in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any amendments or
supplements thereto, and the furnishing of copies thereof, including charges for
mailing, air freight and delivery and counting and packaging thereof to the
Underwriters and dealers; (ii) the cost of printing this Agreement, the Master
Agreement Among Underwriters, the Selected Dealer Agreement, communications with
the Underwriters and selling group and the Preliminary and Supplemental Blue Sky
Memorandum, if any, and any other documents in connection with the offering,
purchase, sale and delivery of the Shares; (iii) all expenses in connection with
the qualification of the Shares for offering and sale under securities laws as
provided in Section 3(a) hereof, including filing and registration fees and the
fees, disbursements and expenses for counsel for the Underwriters in connection
with such qualification and in connection with Blue Sky surveys or similar
advice with respect to sales; (iv) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required approval of the NASD of the terms of the sale of the Shares; (v) all
fees and expenses in connection with quotation of the Shares on the Nasdaq
National Market; (vi) the cost of publication of "tombstone"advertisements with
respect to the offering; (vii) the cost of at least five sets of bound volumes
of the Registration Statement and all related materials to the individuals
designated by the Underwriters; (viii) and all other costs and expenses incident
to the performance of the obligations of the Company under this Agreement which
are not otherwise specifically provided for in this Section 4, including the
fees of the Company's transfer agent and registrar, the cost of any stock issue
or transfer taxes on sales of the Shares to the Underwriters, the cost of the
Company's personnel and other internal costs, the cost of printing and engraving
the certificates representing the Shares and all expenses and taxes incident to
the sale and delivery of the Shares to be sold by the Company to the
Underwriters hereunder.
(b) The Company shall not, however, be required to pay for any of
the fees of counsel for the Underwriters (other than those related to
qualification of the Shares under state
-16-
securities or Blue Sky laws and in connection with securing any required
approval of the NASD of the terms of the sale of the Shares) or any of the road
show expenses of the Underwriters, except that if this Agreement is terminated
by the Underwriters in accordance with the provisions of Section 5 or 8 hereof,
the Company shall reimburse the Underwriters for all of their reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
5. CONDITIONS OF THE UNDERWRITERS' OBLIGATION.
The obligation of the Underwriters to purchase the Shares hereunder
is subject to the continued accuracy of the representations and warranties of
the Company herein contained as of the date hereof and on each Closing Date, to
the accuracy of the statements of the Company made in any certificate or
certificates pursuant to the provisions hereof as of the date hereof and on each
Closing Date and to the performance by the Company of its obligations hereunder,
and to the following further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date hereof, or at such later time and date as may be
approved by the Underwriters and the Company and shall remain effective at each
Closing Date. No stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor initiated
or threatened by the Commission. No order suspending the effectiveness of the
Registration Statement or the qualification or registration of the Shares under
the securities or blue sky laws of any jurisdiction shall be in effect or
proceedings therefor initiated or threatened by the Commission or the
authorities of any such jurisdiction. If the Company has elected to rely upon
Rule 430A, the price of the Shares and any price-related or other information
previously omitted from the effective Registration Statement pursuant to Rule
430A shall have been transmitted to the Commission for filing pursuant to Rule
424(b) within the prescribed time period, and prior to the Firm Shares Closing
Date, the Company shall have provided evidence satisfactory to the Underwriters
of such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirement of Rule 430A.
(b) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall not have occurred (i)
any change, or any development involving a prospective change, in or affecting
the business, properties, prospects, condition (financial or other) or results
of operations of the Company, which, in the judgment of the Underwriters,
materially affects the market for the Shares or (ii) any material loss or
interference with the business or properties of the Company from fire,
explosion, flood or other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other governmental action,
order or decree, which is not set forth in the Registration Statement and the
Prospectus, if in the judgment of the Underwriters any such development makes it
impracticable or inadvisable to proceed with completion of the sale of and
payment for the Shares.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted
-17-
against the Company or any of its respective officers or directors in their
capacities as such, before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic or
foreign, or arbitrator, in which litigation or proceeding an unfavorable ruling,
decision or finding would materially and adversely affect the business,
properties, business prospects, condition (financial or otherwise) or results of
operations of the Company.
(d) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at each
Closing Date, as if made at such Closing Date, and all covenants and agreements
contained herein to be performed on the part of the Company and all conditions
contained herein to be fulfilled or complied with by the Company at or prior to
each Closing Date, shall have been duly performed, fulfilled or complied with.
(e) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company, shall have
furnished to the Underwriters their opinion, satisfactory in form and substance
to counsel for the Underwriters, dated the Firm Shares Closing Date (and, if
applicable, the Additional Shares Closing Date), to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement
and the Prospectus, and is duly qualified to conduct its business and is in good
standing in each jurisdiction or place where the nature or location of its
properties (owned or leased) or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify would not have a Material Adverse Effect.
(ii) To the knowledge of such counsel, the Company does not
own or control, directly or indirectly, any corporation, association or other
entity.
(iii) There are no preemptive or other rights to subscribe for
or to purchase shares of capital stock of the Company pursuant to any statute,
the certificate of incorporation or by-laws of the Company or, to such counsel's
knowledge, any agreement or other instrument to which the Company is a party as
to which any person can successfully maintain an action, suit or proceeding
against the Company for violation of his, her or its preemptive rights with
respect to the issuance of any shares of capital stock of the Company.
(iv) To the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company required to be
disclosed in the Prospectus that is not disclosed in the Prospectus, and there
is no contract or other document required to be described in the Registration
Statement or the Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
-18-
(v) All of the Company's issued and outstanding capital stock
has been duly authorized, validly issued, is fully paid and nonassessable and
have not been issued in violation of any applicable Federal securities laws and
the capitalization of the Company conforms in all material respects to the
descriptions thereof and the statements made with respect thereto in the
Registration Statement and the Prospectus under the caption "Description of
Capital Stock."
(vi) The Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) have been made 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, no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement and the Prospectus (other than the financial statements
and other financial and statistical information contained therein as to which
such counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act and the applicable Act Regulations.
(vii) The statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts, agreements or other
legal documents, fairly summarize the information required to be shown with
respect to such contracts, agreements and documents.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company, is a valid and binding agreement of the Company,
enforceable in accordance with its terms (except to the extent rights to
indemnity hereunder or thereunder may be limited by Federal or state securities
laws or public policy underlying such laws and except to the extent the
enforcement hereof or thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by equitable principles) and the Company has full
corporate power and authority to enter into this Agreement.
(ix) No consent, approval, authorization or order of any court
or governmental agency or body of which such counsel has knowledge is required
for the consummation of the transactions contemplated hereby, 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
Shares by the Underwriters or such as may be required by the NASD and such other
approvals (specified in such opinion) as have been obtained.
(x) All of the Shares have been approved for quotation on the
Nasdaq National Market.
(xi) Neither the execution and delivery of this Agreement, the
issue and sale of the Shares, the consummation of any other of the transactions
herein contemplated, nor the fulfillment of the terms hereof, will conflict
with, or result in a breach or violation of, or constitute a default under, or
result in the creation or imposition of any lien, charge, claim or encumbrance
upon, any of the property or assets of the Company pursuant to (a) the terms of
any agreement, contract, indenture, lease or other instrument known to such
counsel to which the Company is a party
-19-
or by which the Company is bound or to which any of the property or assets of
the Company is subject, (b) any law, statute, rule, or regulation, or any
judgment, order, consent or memorandum of understanding known to such counsel of
any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company, or (c) the certificate of
incorporation or by-laws of the Company.
(xii) To the knowledge of such counsel, the Company is not now
in violation or breach of, or in default with respect to, any provision of any
contract, agreement, instrument, lease, license, arrangement or understanding
known to such counsel which, individually or in the aggregate, would have a
Material Adverse Effect.
(xiii) The Shares have been duly and validly authorized by the
Company for issuance, and the Company has full corporate power and authority to
issue, sell and deliver the Shares; and, when the Shares are issued and
delivered against payment therefor as provided by this Agreement, the Shares
will have been validly issued and will be fully paid and nonassessable, and the
issuance of such Shares will not be subject to any statutory preemptive rights
or similar statutory rights or, to such counsel's knowledge, any other
preemptive or similar rights. The Shares, when issued, will conform in all
material respects to the description thereof contained in the Registration
Statement and the Prospectus under the caption "Description of Capital Stock."
(xiv) The certificates for the Shares, assuming they are in
the form filed with the Commission, are in due and proper form under Delaware
law and the by-laws of the Company and conform with the form of certificate duly
authorized by the Board of Directors of the Company.
(xv) The Company Merger Agreement has been duly authorized by
all necessary board of directors and stockholder action on the part of the
Company, and all board of managers and member action on the part of the Delaware
LLC, and has been duly executed and filed according to the laws of the State of
Delaware. The Company Merger Agreement is effective under the laws of the State
of Delaware. The execution and delivery of the Company Merger Agreement and the
consummation of the merger contemplated thereby did not contravene any provision
of applicable Federal or Delaware law or the Certificate of Incorporation or
Bylaws of the Company or the Certificate of Formation, Operating Agreement or
Bylaws of the Delaware LLC or any agreement or other instrument known to such
counsel binding upon the Delaware LLC or the Company, any judgment or decree
known to such counsel of any governmental body, agency or court having
jurisdiction over the Company or Delaware LLC, and no consent, approval,
authorization or order of or qualifications with any governmental body or agency
was required for the performance by the Company and Delaware LLC of the
respective obligations under the Company Merger Agreement except such as have
been obtained.
(xvi) The Company is not and, upon sale of the Shares and
application of the net proceeds as described in the Prospectus under "Use of
Proceeds" will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or subject to registration under
such act.
-20-
(xvii) The Company is recorded in the records of the United
States Patent and Trademark Office as the sole owner or assignee of record of
each of the registered trademarks noted on an appendix to such opinion (the
"Trademarks") and each of the trademark applications noted in such appendix (the
"Trademark Applications"). To the knowledge of such counsel, there are no
asserted or unasserted claims of any possession relating to the use or ownership
of the Trademarks or Trademark Applications, and there are no material defects
of form in the preparation or filing of the Trademark Applications and the
applications which led to the Trademarks. To such counsel's knowledge, none of
the licenses, trademarks, service marks or trade names presently owned, held or
used by the Company infringes or conflicts with any licenses, trademarks,
service marks or trade names of any other person or entity or are in dispute,
and such counsel is not aware of any notice of any infringement of or conflict
with the asserted rights of others.
(xviii) The statements set forth in the Registration Statement
and the Prospectus under the captions "Risk Factors - Government regulation
could negatively affect our business" and "-We could face liability for
inappropriate use of our network" insofar as such statements purport to
summarize applicable provisions of law are accurate summaries in all material
respects of the provisions purported to be summarized under such captions or of
any legal matters, documents or proceedings referred to therein and relating to
the regulation of the business and operations of the Company and the Company's
compliance therewith.
(xix) Except as set forth in the Registration Statement and
the Prospectus, to the knowledge of such counsel no holder of any securities of
the Company or any other person has the right, contractual or otherwise, to
cause the Company to sell or otherwise issue to such person, or to permit such
person to underwrite the sale of, any of the Shares or the right to have any
Common Stock or other securities of the Company included in the Registration
Statement or the right, as a result of the filing of the Registration Statement,
to require registration under the Act of any shares of Common Stock or other
securities of the Company that has not been waived or lapsed.
In addition, such counsel shall also state that such counsel has
participated in conferences with representatives of the Underwriters, officers
and representatives of the Company and representatives of the independent
certified public accountants of the Company, at which conferences the contents
of the Registration Statement and the Prospectus and related matters were
discussed and that, although such counsel is not passing upon and does not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
set forth in Sections 5(e)(vi), (vii) and (xviii)), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement at the time it became
effective (but after giving effect to any modifications incorporated therein
pursuant to Rule 430A under the Act) or at the Representation Date and at the
Firm Shares Closing Date (and, if applicable, the Additional Shares Closing
Date) 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 that the Prospectus, at
-21-
the Representation Date (unless the term "Prospectus" refers to a prospectus
which has been provided to the Underwriters by the Company for use in connection
with the offering of the Shares which differs from the Prospectus on file at the
Commission at the Representation Date, in which case at the time it is first
provided to the Underwriters for such use) or at the Firm Shares Closing Date
(and, if applicable, the Additional Shares Closing Date), included or includes
an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED, that such
counsel need not express any comment with respect to the financial statements,
supporting schedules or other financial and statistical data contained in the
Registration Statement or the Prospectus.
To the extent deemed advisable by such counsel, such counsel may rely as
to regulatory and intellectual property matters on the opinions of other counsel
satisfactory to the Underwriters, provided that such counsel shall state that in
their opinion that they know of no reason why the Underwriters and they are not
justified in relying thereon. Copies of such opinions shall be furnished to the
Underwriters and counsel for the Underwriters.
(f) Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., counsel for the Underwriters, shall
have furnished to the Underwriters an opinion with respect to such matters as
may be reasonably requested by the Underwriters, dated the Firm Shares Closing
Date (and, if applicable, the Additional Shares Closing Date). The following
conditions contained in clauses (A) through (C) of this Section 5(f) shall have
been satisfied on and as of each Closing Date and the Company shall have
furnished to the Underwriters a certificate of the Company, signed by the
Co-Chairman of the Board and Chief Executive Officer or the President and the
principal financial or accounting officer of the Company, dated the Firm Shares
Closing Date (and, if applicable, the Additional Shares Closing Date), to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus, any supplement or amendment to the
Prospectus and this Agreement and that:
(A) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Firm Shares Closing Date (and,
if applicable, on the Additional Shares Closing Date), with the same effect as
if made on the Firm Shares Closing Date (and, if applicable, on the Additional
Shares Closing Date); the Registration Statement, as amended as of the Firm
Shares Closing Date (and, if applicable, on the Additional Shares Closing Date),
does not include any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Firm Shares Closing Date (and,
if applicable, on the Additional Shares Closing Date), does not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; and the Company has complied with all the
agreements and satisfied all the conditions under this Agreement on its part to
be performed or satisfied at or prior to the Firm Shares Closing Date (and, if
applicable, at or prior to the Additional Shares Closing Date);
-22-
(B) 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 knowledge of the Company, threatened; and
(C) since the date of the most recent financial statements
included in the Prospectus, there has been no change or development involving a
prospective change, with respect to the business, properties, prospects,
financial condition or results of operations of the Company that could have a
Material Adverse Effect.
(D) At the Effective Date, the Representation Date and at each
Closing Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP shall have furnished to the Underwriters a
letter or letters, dated respectively as of the Effective Date, the
Representation Date and each Closing Date, in form and substance satisfactory to
the Underwriters, containing statements and information of the type customarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial and statistical information contained
in the Registration Statement and the Prospectus.
(i) At each Closing Date, counsel for the Underwriters
shall have been furnished with such information,
certificates and documents as they may reasonably
require for the purpose of enabling them to pass
upon the issuance and sale of the Shares as
contemplated herein and related proceedings, or to
evidence the accuracy of any of the
representations or warranties, or the fulfillment
of any of the conditions, herein contained, or
otherwise in connection with the offering
contemplated hereby; and all opinions and
certificates mentioned above or elsewhere in this
Agreement shall be reasonably satisfactory in form
and substance to the Underwriters and counsel for
the Underwriters.
(ii) On or prior to the Representation Date, the
Company shall have furnished to the Underwriters a
Lock-Up Agreement and Stop Transfer Order letter
addressed to the Company's Transfer Agent in form
and substance reasonably satisfactory to the
Underwriters from the Company's officers,
directors and stockholders in which each such
person agrees not to offer, sell or contract to
sell, or otherwise dispose of, directly or
indirectly, any shares of Common Stock
beneficially owned by such person or any
securities convertible into, or exchangeable for,
-23-
shares of Common Stock for a period of 180 days
following the date of the Prospectus without prior
written consent of Jefferies.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend 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 Section 15 of
the Act or Section 20 of the Exchange Act, to the fullest extent lawful from and
against any losses, expenses, claims, damages or liabilities (including any and
all investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claim asserted), which it may become subject under the Act, the Exchange Act
or otherwise, as such expenses are incurred, insofar as such losses, expenses,
claims, damages or liabilities arise out of or are based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, or in any Preliminary Prospectus or the Prospectus, or
in any amendment thereof or supplement thereto, or in any Blue Sky application
or other document executed by the Company specifically for that purpose or based
upon information furnished by the Company filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the securities
laws thereof or filed with the Commission or any securities association or
securities exchange (each, an "Application"), or 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 or (ii) any untrue
statement or alleged untrue statement made in Section 1(a) of this Agreement by
the Company; PROVIDED, HOWEVER, that the Company will not be liable in any such
case to the extent that any such loss, expense, 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 the written information furnished to the Company by any
Underwriter expressly for use in the Registration or the Prospectus; and
PROVIDED, FURTHER, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, the
indemnity agreement contained in this Section 6(a) shall not inure to the
benefit of any such Underwriter the directors, officers, employees or agents of
such Underwriter or any person controlling such Underwriter and the Company
shall not be liable to any such Underwriter, the directors, officers, employees
or agents of such Underwriter or any persons controlling such Underwriter, from
whom the person asserting any such losses, expenses, claims, damages or
liabilities purchased the Shares concerned, to the extent that any such loss,
expense, claim, damage or liability results from the fact that there was not
sent or given to such person, at or prior to the written confirmation of the
sale of such Shares to such person, a copy of the Prospectus, as the same may be
amended or supplemented, within the time required by the Act (if required
thereby), and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in such Prospectus and the Company had
previously furnished copies thereof to such Underwriter on a timely basis in
order to permit the Prospectus (as the same may be amended or supplemented) to
be sent or given. The
-24-
foregoing indemnity agreement shall be in addition to any liability that the
Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, each director of the
Company and each officer who signs the Registration Statement, to the same
extent as the foregoing indemnities from the Company to each Underwriter, the
directors, officers, employees and agents of such Underwriter and any person
controlling such Underwriter, but only insofar as such loss, expense, claim,
damage or liability arises out of or is based upon any untrue statement or
omission or alleged untrue statement or omission made in reliance or in
conformity with information relating to such Underwriter furnished in writing to
the Company by such Underwriter, expressly for use in the Registration Statement
or the Prospectus. This indemnity agreement will be in addition to any liability
that any Underwriter may otherwise have. The Company agrees that the table of
Underwriters set forth under the heading "Underwriting" in the Prospectus, the
amounts of the selling concession and reallowance set forth in the Prospectus
and the last three paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information provided in writing by any Underwriter expressly
for use in the Registration Statement or the Prospectus.
(c) If any action is brought against an indemnified party under this
Section 6, the indemnified party or parties shall promptly notify the
indemnifying party in writing of the institution of such action (provided that
the failure to give such notice shall not relieve the indemnifying party of any
liability which it may have pursuant to this Agreement, unless and to the extent
the indemnifying party did not otherwise learn of such action and such failure
has resulted in the forfeiture of substantive rights or defenses by the
indemnifying party) and the indemnifying party shall assume the defense of such
action, including the employment of counsel and payment of reasonable expenses.
The indemnified party or parties shall have the right to employ separate counsel
(including local counsel) in any such case and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by the indemnifying party in connection with the
defense of such action, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to take charge of the
defense of such action within a reasonable time after notice of the institution
of such action, (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them that are different
from or additional to those available to the indemnifying party or (iv) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest (in which case the
indemnifying party shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties, in any of which events such fees
and expenses shall be borne by the indemnifying party and paid as incurred;
PROVIDED that the indemnifying party shall only be responsible for the fees and
expenses of one counsel for the indemnified party or parties hereunder).
Anything in this paragraph to the contrary notwithstanding, the indemnifying
party shall not be liable for any settlement of any such claim or action
effected without its written consent, which consent shall not be unreasonably
withheld. An indemnifying
-25-
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.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsections (a) or (b) of this Section
6 or is insufficient to hold harmless a party indemnified thereunder, in respect
of any losses, expenses, claims, damages or liabilities referred to therein,
then each applicable indemnifying party shall contribute to the amount paid in
settlement of any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, expenses, claims, damages and liabilities
suffered by the Company, any contribution received by the Company from persons
other than the Underwriters who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, officers of the Company who signed the
Registration Statement and directors of the Company, to which the Company and
one or more of the Underwriters may be subject, in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand, and the Underwriters on the other hand, from the offering of the Shares
or, if, but only if, such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Company on the one hand, and the
Underwriters on the other hand, in connection with the statements or omissions
which resulted in such losses, expenses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand, and the Underwriters on the other hand, shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of underwriting discounts but before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand, and the
Underwriters on the other hand, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, expenses, claims and liabilities referred to above shall be deemed to
include any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any claim or action. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant hereto were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this Section 6(d), no Underwriter
shall be required to contribute any amount in excess of the underwriting
discount received by it by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution
-26-
from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 6(d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The Company hereby agrees that in addition to their other
obligations under subsection (a) of this Section 6, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission described in subsection (a) of this Section, they will reimburse the
Underwriters on a monthly basis for all reasonable legal fees and other expenses
reasonably incurred in connection with investigating or defending such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
obligations under this Section 6 and the possibility that such payments might
later be held to be improper by a court of competent jurisdiction. To the extent
that any such interim reimbursement payment is so held to have been improper,
the Underwriters shall promptly return such payments to the Company.
7. SURVIVAL. The respective indemnity and contribution agreements
contained in Section 6 hereof and the covenants, warranties and other
representations of the Company contained in this Agreement or contained in
certificates of officers of the Company or submitted pursuant hereto, shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter, or any of their respective officers, employees,
directors, stockholders or person who controls the Underwriters within the
meaning of Section 15 of the Act, or by or on behalf of the Company or any of
its directors, officers, employees or any person who controls the Company within
the meaning of Section 15 of the Act, and shall survive delivery of and payment
for the Shares.
8. DEFAULT BY AN UNDERWRITER. If one or more of the Underwriters shall
fail or refuse at a Closing Date to purchase and pay for any of the Shares
agreed to be purchased by such Underwriter or Underwriters hereunder on such
date and the aggregate number of Firm Shares or Additional Shares, as the case
may be, which such defaulting Underwriter or Underwriters, as the case may be,
agreed but failed or refused to purchase is not more than one-tenth of the total
number of Shares to be purchased on such date by all Underwriters, each
nondefaulting Underwriter shall be obligated severally, in the proportion which
the number of Firm Shares set forth opposite its name in Schedule I bears to the
total number of Firm Shares which all the non-defaulting Underwriters, as the
case may be, have agreed to purchase, or in such other proportion as the
Underwriters may specify, to purchase the Firm Shares or Additional Shares, as
the case may be, which such defaulting Underwriter or Underwriters, as the case
may be, agreed but failed or refused to purchase on such date; PROVIDED that in
no event shall the number of Firm Shares or Additional Shares, as the case may
be, which any Underwriter has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 8 by an amount in excess of one-tenth of such
number of Firm Shares or Additional Shares, as the case may be, without the
written consent of such Underwriter. If on the Firm Shares Closing Date or on
the Additional Shares Closing Date, as the case may be, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares, or Additional Shares,
as
-27-
the case may be, and the aggregate number of Firm Shares or Additional Shares,
as the case may be, with respect to which such default occurs is more than
one-tenth of the aggregate number of Shares to be purchased on such date by all
Underwriters in the event of a default by an Underwriter and arrangements
satisfactory to the Underwriters and the Company for purchase of such Shares are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the Company.
In any such case which does not result in termination of this Agreement, either
the Underwriters or the Company shall have the right to postpone the Firm Shares
Closing Date, or the Additional Shares Closing Date, as the case may be, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
9. TERMINATION OF AGREEMENT.
(a) The Underwriters may terminate this Agreement, by written
notice to the Company prior to the Firm Shares Closing Date (or, if
applicable, the Additional Shares Closing Date) (i) if there shall occur any
default or breach by the Company hereunder or the failure to satisfy any of
the conditions contained in Section 5 hereof, (ii) if there has been, since
the date of this Agreement or since the respective dates as of which
information is provided in the Registration Statement and prior to the Firm
Shares Closing Date (or, if applicable, the Additional Shares Closing Date),
there shall have been any material adverse change, or any development
involving a prospective material adverse change (including, without
limitation, a change in the management or control of the Company), in the
condition (financial or otherwise), business prospects, net worth or results
of operations of the Company, or (iii) if, since the date of this Agreement
and prior to the Firm Shares Closing Date (or, if applicable, the Additional
Shares Closing Date), (A) there has occurred any material adverse change in
political, financial or economic conditions in the United States or any
outbreak or material escalation of hostilities or declaration by the United
States of a national emergency or war or other calamity or crisis, the effect
of which on the financial securities markets of the United States is such as
to make it, in the judgment of the Underwriters, impracticable or inadvisable
to market the Shares on the terms and in the manner contemplated by the
Prospectus, or (B) trading in any of the securities of the Company has been
suspended by the Commission, or trading generally on the New York Stock
Exchange or the Nasdaq National Market has been suspended (other than by
limitation on hours or number of days of trading), or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by the New York Stock Exchange or the Nasdaq
National Market or by order of the Commission or any other governmental
authority or (C) a banking moratorium has been declared by any of the Federal
or New York authorities.
(b) If this Agreement is terminated pursuant to this Section 9 or
any other provision of this Agreement, such termination shall be without
liability of any party to any other party except as provided in Sections 4 and
6.
-28-
10. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Underwriters, c/o Jefferies & Company, Inc., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇, Esq., with a
copy to Fulbright & ▇▇▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇ ▇▇▇▇▇▇, Esq.; notices to the Company shall be directed to ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Tower One, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
11. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors and legal
representatives. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to provide any person, firm or corporation, other than the
Underwriters, the Company and their respective successors and legal
representatives and the controlling persons and officers, employees, directors
and stockholders referred to in Sections 6 and 7 and their respective heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and their respective
successors and legal representatives, and said controlling persons,
stockholders, officers and directors and their respective heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Shares from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
12. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
13. COUNTERPARTS. This Agreement may be executed by any one or more of the
parties hereto in any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together constitute one and the
same instrument.
[Remainder of page intentionally left blank]
-29-
* * * * *
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Underwriters and the Company in accordance with its terms.
Very truly yours,
ZIPLINK, INC.
By: ____________________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
First Albany Corporation
By: JEFFERIES & COMPANY, INC.
By: ____________________________________
Name:
Title:
-30-
SCHEDULE I
Number of Firm Shares
Underwriters To Be Purchased
------------ ---------------
Jefferies & Company, Inc. ................................
FAC/Equities..............................................
---------------------
Total 3,500,000
=====================
-31-
