EXHIBIT 1.2
IXL ENTERPRISES, INC.
(a Delaware corporation)
1,400,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
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Dated: November 18, 1999
Table of Contents
Page
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U.S. PURCHASE AGREEMENT 1
SECTION 1. Representations and Warranties 3
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(a) Representations and Warranties by the Company 3
(b) Representations and Warranties by the Selling Shareholders 13
(c) Officer's Certificates 15
SECTION 2. Sale and Delivery to International Managers; Closing 16
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(a) Initial Securities 16
(b) Option Securities 16
(c) Payment 16
(d) Denominations; Registration 17
SECTION 3. Covenants of the Company 17
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(a) Compliance with Securities Regulations and Commission Requests 17
(b) Filing of Amendments 18
(c) Delivery of Registration Statements 18
(d) Delivery of Prospectuses 18
(e) Continued Compliance with Securities Laws 19
(f) Blue Sky Qualifications 19
(g) Rule 158 19
(h) Use of Proceeds 19
(i) Listing 20
(j) Restriction on Sale of Securities 20
(k) Reporting Requirements 20
(l) Compliance with Rule 463 20
SECTION 4. Payment of Expenses 20
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(a) Expenses 20
(b) Expenses of the Selling Shareholders 21
(c) Termination of Agreement 21
(d) Allocation of Expenses 21
SECTION 5. Conditions of International Managers' Obligations 21
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(a) Effectiveness of Registration Statement 21
(b) Opinions of Counsel for Company 22
(c) Opinion of Counsel for the Selling Shareholders 22
(d) Opinion of Counsel for International Managers 22
(e) Officers' Certificate 22
(f) Certificate of Selling Shareholders 23
(g) Accountants' Comfort Letters 23
(h) Bring-down Comfort Letters 23
(i) Approval of Listing 23
(j) No Objection 23
(k) Lock-up Agreements 23
(l) Purchase of Initial International Securities 23
(m) Conditions to Purchase of International Option Securities 24
(n) Additional Documents 24
(o) Termination of Agreement 25
i
SECTION 6. Indemnification 25
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(a) Indemnification of International Managers by the Company and Certain
Selling Shareholders 25
(b) Indemnification of International Managers by Selling Shareholders Not
Listed on Schedule E hereto 26
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders 27
(d) Actions against Parties; Notification 27
(e) Settlement without Consent if Failure to Reimburse 28
(f) Order of Priority for Indemnification 28
(g) Other Agreements with Respect to Indemnification 28
SECTION 7. Contribution 28
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SECTION 8. Representations, Warranties and Agreements to Survive Delivery 30
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SECTION 9. Termination of Agreement 30
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(a) Termination; General 30
(b) Liabilities 30
SECTION 10. Default by One or More of the International Managers 31
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SECTION 11. Default by One or More of the Selling Shareholders or the Company 31
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SECTION 12. Notices 32
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SECTION 13. Parties 32
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SECTION 14. GOVERNING LAW AND TIME 33
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SECTION 15. Effect of Headings 33
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SCHEDULE A Sch A-1
SCHEDULE B Sch X-0
XXXXXXXX X Xxx X-0
XXXXXXXX X Xxx X-0
SCHEDULE E Sch E-1
Exhibit X-0 X-0-0
Xxxxxxx X-0 X-0-0
Xxxxxxx X-0 X-0-0
Xxxxxxx X-0 X-0-0
Xxxxxxx B B-1
ii
IXL ENTERPRISES, INC.
(a Delaware corporation)
1,400,000 Shares of Common Stock
(Par Value $0.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
November 18, 1999
XXXXXXX XXXXX INTERNATIONAL
Xxxxxxxxx, Lufkin & Xxxxxxxx International
BancBoston Xxxxxxxxx Xxxxxxxx International Ltd
The Xxxxxxxx-Xxxxxxxx Company, LLC
as Lead Managers of the several International Managers
c/o Merrill Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
iXL Enterprises, Inc., a Delaware corporation (the "Company"), and the
persons listed in Schedule B hereto (the "Selling Shareholders") confirm their
respective agreements with Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "International Managers", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Xxxxxxx Lynch, Donaldson, Lufkin & Xxxxxxxx International, BancBoston Xxxxxxxxx
Xxxxxxxx International and The Xxxxxxxx-Xxxxxxxx Company, LLC are acting as
representatives (in such capacity, the "Lead Managers"), with respect to (i) the
sale by the Company and Selling Shareholders, acting severally and not jointly,
and the purchase by the International Managers, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $0.01
per share, of the Company ("Common Stock") set forth in Schedules A and B
hereto, and (ii) the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of 210,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 1,400,000 shares of Common Stock (the
"Initial International Securities") to be purchased by the International
Managers and all or any part of the 210,000 shares of Common Stock subject to
the option described in Section 2(b) hereof (the "International Option
Securities") are hereinafter called, collectively, the "International
Securities."
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the sale by the Company and the Selling Shareholders of an aggregate of
5,600,000 shares of Common Stock (the "Initial U.S. Securities") through
arrangements with certain underwriters in the United States and Canada (the
"U.S. Underwriters") for which Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, BancBoston
Xxxxxxxxx Xxxxxxxx Inc., First Union Securities, Inc. and The Xxxxxxxx-Xxxxxxxx
Company, LLC are acting as representatives (the "U.S. Representatives") and the
grant by the Company to the U.S. Underwriters, acting severally and not jointly,
of an option to purchase all or any part of the U.S. Underwriters' pro rata
portion of up to 840,000 additional shares of Common Stock solely to cover over-
allotments, if any (the "U.S. Option Securities" and, together with the
1
International Option Securities, the "Option Securities"). The Initial U.S.
Securities and the U.S. Option Securities are hereinafter called the "U.S.
Securities." It is understood that the Company is not obligated to sell and the
International Managers are not obligated to purchase, any Initial International
Securities unless all of the Initial U.S. Securities are contemporaneously
purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities," and the U.S. Securities and the International Securities are
hereinafter collectively called the "Securities."
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-88847) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration Statement"
shall include the Rule 462(b) Registration Statement. The final Form of U.S.
Prospectus and the final Form of International Prospectus in the forms first
furnished to the Underwriters for use in connection with the offering of the
Securities are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and collectively, the "Prospectuses." If Rule 434 is
relied on, the terms "U.S. Prospectus" and "International Prospectus" shall
refer to the preliminary U.S. Prospectus dated November 4, 1999 and preliminary
International Prospectus dated November 4, 1999, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the U.S. Prospectus, the International Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("XXXXX").
2
1. SECTION Representations and Warranties.
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2.
(a) Representations and Warranties by the Company. The Company represents and
warrants to each International Manager as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b) hereof and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
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Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any
Rule 462(b) Registration Statement and any post-effective amendments
thereto became effective and at the Closing Time (and, if any
International Option Securities are purchased, at the Date of Delivery),
the Registration Statement, the Rule 462(b) Registration Statement and any
amendments and supplements thereto complied and will comply as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto
(including the prospectus wrapper relating to sales of Securities in
Canada (except as it relates specifically to matters of Canadian law)), at
the time the Prospectuses or any amendments or supplements thereto were
issued and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectuses shall not be "materially
different", as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Managers expressly for use in the Registration
Statement or the International Prospectus.
The Company has filed a registration statement pursuant
to Section 12(b) of the Securities Exchange Act of 1934 (the "1934 Act"),
to register the Common Stock, and such registration statement has been
declared effective.
Each preliminary prospectus and the prospectuses filed
as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied as to form when so filed in all material respects with the 1933
Act Regulations and each preliminary prospectus and the Prospectuses to be
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T. The representations and warranties in this subsection shall not apply
to statements in or omissions from the preliminary prospectus made in
reliance upon and in conformity with information furnished to the Company
in writing by any International Manager through the Lead Managers
expressly for use in the preliminary prospectus.
3
(i) Independent Accountants. The accountants who certified
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the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(i) Financial Statements. The financial statements of the Company
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and its consolidated subsidiaries included in the Registration Statement
and the Prospectuses, together with the related schedules and notes,
present fairly in all material respects the financial position of the
Company and its consolidated Subsidiaries (as defined below) at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of the Company and its consolidated Subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles (GAAP) applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly, in all material
respects, in accordance with GAAP the information required to be stated
therein. The selected consolidated financial data, the summary consolidated
financial information, and the capitalization information included in the
Prospectuses present fairly, in all material respects, the information
shown therein and have been compiled on a basis consistent with that of the
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the
Registration Statement and the Prospectuses, other than the quarterly pro
forma information set forth in the Prospectuses under the caption
"Management's Discussion and Analysis of Financial Condition and Results of
Operations," present fairly, in all material respects, the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial statements and have been
properly compiled on the bases described therein, and the assumptions used
in the preparation thereof are reasonable and the adjustments used therein
are appropriate to give effect to the transactions and circumstances
referred to therein. No financial statements are required to be included in
the Registration Statement that have not been so included.
(i) Subsidiary Financial Statements. The financial statements
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of the Company included in the Registration Statement and the Prospectuses,
together with the related schedules and notes, present fairly in all
material respects the financial position of such Subsidiaries and their
respective consolidated Subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of such
Subsidiaries and their respective consolidated subsidiaries for the periods
specified; said financial statements have been prepared in conformity with
GAAP applied on a consistent basis throughout the periods involved.
(i) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have
been no transactions entered into by the Company or any of its
Subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its Subsidiaries considered as
one enterprise, and (C) there has been no dividend or distribution of any
kind declared, paid or made by the Company on any class of its capital
stock.
(i) Good Standing of the Company. The Company has been duly
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incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
reasonably be expected to result in a Material Adverse Effect.
(i) Good Standing of Subsidiaries. Each subsidiary of the Company
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(other than subsidiaries in which the Company has only a minority ownership
interest) (each such subsidiary individually a "Subsidiary" and,
collectively, the "Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
reasonably be expected to result in a Material Adverse Effect; except for
the pledge of the Subsidiaries' stock pursuant to the Credit Facility (as
such term is defined in the Registration Statement) or as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary or other party. The only Subsidiaries of the Company are
the Subsidiaries listed on Exhibit 21 to the Registration Statement. Except
as described in the Prospectuses, or except as would not be required to be
described, the Company has no agreements, commitments, or understandings
with respect to acquiring the business, stock or material assets, except
those assets acquired in the ordinary course of business, of any other
person or entity.
(i) Capitalization. The authorized, issued and outstanding
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capital stock of the Company is as set forth in the Prospectuses under the
caption "Capitalization," and, after giving effect to the offering will be
as set forth as "Pro Forma As Adjusted" under the caption "Capitalization"
(except for subsequent issuances, if any, pursuant to this Agreement,
pursuant to reservations, agreements or employee benefit plans referred to
in the Prospectuses or pursuant to the exercise of convertible securities
or options referred to in the Prospectuses, and except for 10,000,000
shares of Common Stock registered pursuant to a shelf Registration
Statement on Form S-4 for use in future acquisitions), and the number of
authorized, issued and outstanding options and other rights is set forth in
the footnotes under such caption. To the knowledge of the Company, the
shares of issued and outstanding capital stock of the Company and its
subsidiary Consumer Financial Network, Inc., have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any security holder of the
Company. The shares of issued and outstanding capital stock of the Company
have been issued in compliance, in all material respects, with all federal
and state securities laws. Except as disclosed in the Prospectuses, there
are no outstanding options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares
of the Company's or its Subsidiaries' capital stock or any such options,
rights, convertible securities or obligations. The description of the
Company's stock option and purchase plans and the options or other rights
granted and exercised thereunder set forth in the Prospectuses accurately
and fairly describe, in all material respects, the information required to
be shown with respect to such plans, arrangements, options and rights.
(i) Authorization of Agreement. This Agreement and the
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International Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(i) Authorization and Description of Securities. The Securities
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to be purchased by the International Managers and the U.S. Underwriters
from the Company and the Selling Shareholders have been duly authorized for
issuance and sale to the International Managers pursuant to this Agreement
and the U.S. Underwriters pursuant to the U.S. Purchase Agreement,
respectively, and, when issued and delivered by the Company pursuant to
this Agreement and the U.S. Purchase Agreement, respectively, against
payment of the consideration set forth herein and the U.S. Purchase
Agreement, respectively, will be validly issued, fully paid and non-
assessable; the Common Stock conforms in all material respects to
all statements relating thereto contained in the Prospectuses and such
description conforms in all material respects to the rights set forth in
the instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; the
issuance of the Securities is not subject to preemptive rights, co-sale
rights, rights of first refusal or similar rights of any security holder of
the Company or other party and, except as disclosed in the Registration
Statement, the issuance of the Securities is not subject to registration
rights. The Securities will be sold free and clear of all liens,
encumbrances, equities or claims.
(i) Absence of Defaults and Conflicts. Neither the Company nor any of
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its Subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its Subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (collectively, "Agreements and
Instruments") except for such violations or defaults that would not
reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the U.S. Purchase
Agreement and the consummation of the transactions contemplated in this
Agreement, the U.S. Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectuses
under the caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement and the U.S. Purchase Agreement have been
duly authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, the Agreements and Instruments (except for such
violations, conflicts, breaches or defaults or liens, charges or
encumbrances that would not reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Subsidiary or
any applicable law, statute binding upon, or, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations, except for
such defaults, which would not reasonably be expected to result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any Subsidiary.
(i) Absence of Labor Dispute. No labor dispute with the employees of
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the Company or any Subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any Subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
would reasonably be expected to result in a Material Adverse Effect.
(i) Absence of Proceedings. There is no action, suit, proceeding,
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inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement or the performance by the Company of its
obligations hereunder or thereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any Subsidiary is a party
or of which any of their respective property or assets is the subject which
are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, would not reasonably be
expected to result in a Material Adverse Effect.
(i) Accuracy of Exhibits. There are no contracts or documents which
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are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required. The contracts so filed as exhibits are
accurate and complete, in all material respects; all such contracts are in
full force and effect on the date hereof, and neither the Company or any of
its Subsidiaries or, to the Company's best knowledge, any other party is in
breach of or default under any material provisions of such contracts the
result of which would reasonably be likely to result in a Material Adverse
Effect.
(i) Possession of Intellectual Property. The Company and its
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Subsidiaries own or possess or have access to adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), United States trademarks, service
marks, trade names or other intellectual property (collectively,
"Intellectual Property") necessary to carry on the business now operated by
them except as would not reasonably be expected to have a Material Adverse
Effect, and neither the Company nor any of its Subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of
any facts or circumstances which would render any Intellectual Property
invalid or inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would reasonably be expected to result in a
Material Adverse Effect.
(i) Absence of Further Requirements. No filing with, or
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authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required to be made or obtained by the Company for the
performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities under this Agreement and
the U.S. Purchase Agreement or the consummation of the transactions
contemplated by this Agreement and the U.S. Purchase Agreement, except (i)
such as have been already obtained or as may be required under the 1933 Act
or the 1933 Act Regulations and foreign or state securities or blue sky
laws or (ii) such as have been described in the Registration Statement.
(i) Possession of Licenses and Permits. The Company and its
----------------------------------
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not reasonably be expected to have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would reasonably be expected to
result in a Material Adverse Effect.
(i) Title to Property. The Company and its Subsidiaries have good and
-----------------
marketable title to all real property owned by the Company and its
Subsidiaries and valid title to all other properties and assets owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Prospectuses or (b) would not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect
on the value of such property or assets and would not reasonably be
expected to interfere with the use made and proposed to be made of such
property by the Company or any of its Subsidiaries; and all of the leases
and subleases material to the business of the Company and its Subsidiaries,
considered as one enterprise, and under which the Company or any of its
Subsidiaries holds properties described in the Prospectuses, are in full
force and effect, except for such failure to be in force as would not
reasonably be expected to have a Material Adverse Effect and neither the
Company nor any Subsidiary has any notice of any material claim of any sort
that has been asserted by anyone adverse to the rights of the Company or
any Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such Subsidiary to
the continued possession of the leased or subleased premises under any such
lease or sublease.
(i) Tax Returns and Payment of Taxes. The Company and its
--------------------------------
Subsidiaries have timely filed all Federal, state, local and foreign tax
returns that are required to be filed or have duly requested extensions
thereof and all such tax returns are true, correct and complete, except to
the extent that any failure to file or request an extension, or any
incorrectness would not reasonably be expected to result in a Material
Adverse Effect. The Company and its Subsidiaries have timely paid all taxes
shown as due on such filed tax returns (including any related assessments,
fines or penalties), except to the extent that any such taxes are being
contested in good faith and by appropriate proceedings, or to the extent
that any failure to pay would not reasonably be expected to result in a
Material Adverse Effect; and adequate charges, accruals and reserves have
been provided for in the financial statements referred to in Section
1(a)(iii) above in accordance with GAAP in respect of all Federal, state,
local and foreign taxes for all periods as to which the tax liability of
the Company or any of its Subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities. The Company
is not a "United States real property holding corporation" within the
meaning of Section 897(c)(3) of the Internal Revenue Code of 1986, as
amended.
(i) Insurance. The Company and each of its Subsidiaries are insured
---------
by insurers of recognized financial responsibility against such losses and
risks and in such amounts as the Company believes are prudent and customary
in the businesses in which they are engaged; and neither the Company nor
any of its Subsidiaries has any reason to believe that any of them will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business except where the failure to renew or
maintain such coverage would not reasonably be expected to result in a
Material Adverse Effect. The officers and directors of the Company are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary for
officers and directors liability insurance of a public company and as would
cover claims which could be made in connection with the issuance of the
Securities; and the Company has no reason to believe that it will not be
able to renew its existing directors and officers liability insurance
coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to cover its officers and
directors.
(i) No Stabilization or Manipulation. Neither the Company nor, to the
--------------------------------
knowledge of the Company, any of its directors, officers or affiliates has
taken nor will take, directly or indirectly, any action designed to, or
that might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Securities in violation of Regulation M
under the 1934 Act.
(i) Investment Company Act. The Company is not, and upon the issuance
----------------------
and sale of the Securities as herein contemplated and the application of
the net proceeds therefrom as described in the Prospectuses, will not be,
an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of 1940,
as amended (the "1940 Act").
(i) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, reasonably
be expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or
administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations relating
to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or
petroleum products (collectively, "Hazardous Materials") or to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental
Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its Subsidiaries and (D) there are no events
or circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(i) Registration Rights. Except as described in the Prospectuses,
-------------------
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act.
(i) Certain Transactions. Except as disclosed in the Prospectuses or
--------------------
except as not reasonably required to be disclosed in the Prospectuses,
there are no outstanding loans, advances, or guarantees of indebtedness by
the Company to or for the benefit of any of the executive officers or
directors of the Company or any of the members of the families of any of
them.
(i) Accounting and Other Controls. The Company has established for
-----------------------------
itself and each Subsidiary and, with respect to future acquisitions, will
establish, a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions were, are or, in the case of
such future acquisitions, will be executed in accordance with management's
general or specific authorization; (ii) transactions were, are or, in the
case of such future acquisitions, will be recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets was, is or, in the case of such future acquisitions, will
be permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets was, is or,
in the case of such future acquisitions, will be compared with existing
assets at reasonable intervals and appropriate action was, is or, in the
case of such future acquisitions, will be taken with respect to any
differences.
(i) Regulations. The Company and CFN have not been advised, and have
-----------
no reason to believe, that either they or any of their subsidiaries is not
conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which they are conducting business,
including, without limitation, all applicable local, state and federal laws
and regulations; except where failure to be so in compliance would not
reasonably be expected to result in a Material Adverse Effect.
(a) Representations and Warranties by the Selling Shareholders. Each
Selling Shareholder (except in the case of Section 1(b)(i)(1) hereto, only each
such Selling Shareholder listed on Schedule E hereto) severally represents and
warrants to each Underwriter as of the date hereof, and as of the Closing Time,
and agrees with each Underwriter, as follows:
(b)
(i) Accurate Disclosure.
-------------------
(1) In the case of each such Selling Shareholder listed on
Schedule E hereto, to the best knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; such Selling Shareholder has reviewed
and is familiar with the Registration Statement and the Prospectuses and neither
the Prospectuses nor any amendments or supplements thereto 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; such Selling Shareholder is not prompted to sell
the Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any Subsidiary which is not set forth in
the Prospectuses.
(2) In the case of each such Selling Shareholder not listed on
Schedule E hereto, the written information furnished by such Selling Shareholder
to the Company expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectuses (or any amendment or supplement thereto) does not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(i) Authorization of Agreements. Each Selling Shareholder has the
---------------------------
full right, power and authority to enter into this Agreement and a Custody
Agreement and Power of Attorney (the "Power of Attorney and Custody
Agreement") and to sell, transfer and deliver the Securities to be sold by
such Selling Shareholder hereunder. The execution and delivery of this
Agreement and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Shareholder and the
consummation of the transactions contemplated herein and compliance by such
Selling Shareholder with its obligations hereunder have been duly
authorized by such Selling Shareholder and do not and will not, whether
with or without the giving of notice or passage of time or both, conflict
with or constitute a material breach of, or material default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Shareholder or
any property or assets of such Selling Shareholder pursuant to any material
contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be bound,
or to which any of the property or assets of such Selling Shareholder is
subject, nor will such action result in any violation of the provisions of
the charter or by-laws or other organizational instrument of such Selling
Shareholder, if applicable, or any applicable treaty, law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties.
(i) Good and Marketable Title. Such Selling Shareholder has and will
-------------------------
at the Closing Time have good and marketable title to the Securities to be
sold by such Selling Shareholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and marketable title to
the Securities purchased by it from such Selling Shareholder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind.
(i) Due Execution of Power of Attorney and Custody Agreement. Such
--------------------------------------------------------
Selling Shareholder has duly executed and delivered, in the form heretofore
furnished to the Representatives, the Power of Attorney and Custody
Agreement with U. Xxxxxxx Xxxxx, Xx. and M. Xxxxx Xxxxxxxx as
attorneys-in-fact (each, an "Attorney-in-Fact") and SunTrust Bank, Atlanta,
as depositary (the "Depositary"); the Depositary is authorized to deliver
the Securities to be sold by such Selling Shareholder hereunder and to
accept payment therefor; and the Attorney-in-Fact is authorized to execute
and deliver this Agreement and the certificate referred to in Section 5(f)
or that may be required pursuant to Section 5(n) on behalf of such Selling
Shareholder, to sell, assign and transfer to the Underwriters the
Securities to be sold by such Selling Shareholder hereunder, to determine
the purchase price to be paid by the Underwriters to such Selling
Shareholder, as provided in Section 2(a) hereof, to authorize the delivery
of the Securities to be sold by such Selling Shareholder hereunder, to
accept payment therefor, and otherwise to act on behalf of such Selling
Shareholder in connection with this Agreement.
(i) Absence of Manipulation. Such Selling Shareholder has not taken,
-----------------------
and will not take, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(i) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Shareholder of
its obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the Securities
hereunder or the consummation of the transactions contemplated by this
Agreement, except such as may have previously been made or obtained or as
may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws.
(i) Restriction on Sale of Securities. During a period of 90 days
---------------------------------
from the date of the Prospectuses, such Selling Shareholder will not,
without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly,
(i) offer to sell, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant for the sale of, or otherwise transfer or dispose
of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock, whether owned as of the date
hereof or hereafter acquired by such Selling Shareholder or with respect to
which such Selling Shareholder has or hereafter acquires the power of
disposition, or file or cause to be filed any registration statement under
the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequence of ownership of
the Common Stock, whether any such swap or transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to (a) transactions by any person other than the Company relating to
registered shares of Common Stock or other securities acquired in open
market transactions or (b) transfers of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock to a
member of such Selling Shareholder's immediate family or to a trust of
which such Selling Shareholder or an immediate family member is the
beneficiary (either one a "Transferee") provided that upon any such
transfer, the Transferee shall sign a letter substantially similar to the
letter agreement set forth as Exhibit C hereto agreeing not to sell, grant
any option to purchase, or otherwise transfer or dispose of any such Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock for the remainder of the above-referenced 90-day period.
(i) Certificates Suitable for Transfer. Certificates for all of the
----------------------------------
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Depositary with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(i) No Association with NASD. Neither such Selling Stockholder nor
------------------------
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(a) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its Subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby; and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the
Lead Managers or to counsel for the Underwriters pursuant to the terms of this
Agreement shall be deemed a representation and warranty by such Selling
Shareholder to the Underwriters as to the matters covered thereby.
1. SECTION Sale and Delivery to International Managers; Closing.
----------------------------------------------------
2.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company and each Selling Shareholder, severally and not jointly, agrees to sell
to each International Manager, severally and not jointly, and each International
Manager, severally and not jointly, agrees to purchase from the Company and each
Selling Shareholder, at the price per share set forth in Schedule C, that
proportion of the number of Initial International Securities set forth in
Schedule B opposite the name of the Company or such Selling Shareholder, as the
case may be, which the number of the Initial Securities set forth in Schedule A
opposite the name of such International Manager, plus any additional number of
Initial International Securities which such International Manager may become
obligated to purchase pursuant to the provisions of Section 10 hereof, bears to
the total number of Initial Securities, subject in each case, to such
adjustments among the International Managers as the Lead Managers in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities.
(a) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to each International Manager,
severally and not jointly, to purchase up to an additional 210,000 shares of
Common Stock, as set forth in Schedule B, at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities. The option hereby granted
will expire 30 days after the date hereof and may be exercised in whole or in
part from time to time only for the purpose of covering over-allotments which
may be made in connection with the offering and distribution of the Initial
International Securities upon notice by the Global Coordinator to the Company
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(b)
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Xxxxxx
& Xxxxxx, One Buckhead Plaza, 0000 Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx
00000, or at such other place as shall be agreed upon by the Global Coordinator
and the Company and the Selling Shareholders, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Global Coordinator and the
Company and the Selling Shareholders (such time and date of payment and delivery
being herein called "Closing Time").
(d)
(e) In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company and the
Selling Shareholders, on each Date of Delivery as specified in the notice from
the Global Coordinator to the Company and the Selling Shareholders.
(f)
(g) Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to the bank accounts designated by
the Company and the Depositary pursuant to each Selling Shareholder's Power of
Attorney and Custody Agreement, as the case may be, against delivery to the Lead
Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
(h)
(i) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
1. SECTION Covenants of the Company. The Company covenants with each
------------------------
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company, after
consultation with the Lead Managers, will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such prospectus. The Company, after consultation
with the Lead Managers, will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b)
(c) Filing of Amendments. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the International Managers shall reasonably object.
(d)
(e) Delivery of Registration Statements. The Company has furnished or will
deliver to the Lead Managers and counsel for the International Managers, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Lead Managers,
without charge, a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
International Managers. The copies of the Registration Statement and each
amendment thereto furnished to the International Managers will be identical to
the electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(f)
(g) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each International Manager, without charge,
during the period when the International Prospectus is required to be delivered
under the 1933 Act or the Securities Exchange Act of 1934 (the "1934 Act"), such
number of copies of the International Prospectus (as amended or supplemented) as
such International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(h)
(i) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the U.S.
Purchase Agreement and in the Prospectuses. If at any time when a prospectus is
required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the International Managers or for
the Company, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements, and
the Company will furnish to the International Managers such number of copies of
such amendment or supplement as the International Managers may reasonably
request.
(j)
(k) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(l)
(m) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Xxxxxxx 00(x) xx xxx
0000 Xxx.
(x)
(o) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds."
(p)
(q) Listing. The Company will use its best efforts to effect and maintain
the quotation of the Securities on the Nasdaq National Market or the listing of
the Securities on the New York Stock Exchange and will file with the Nasdaq
National Market or the New York Stock Exchange, as applicable, all documents and
notices required by such exchange of companies that have securities that are
traded in the over-the-counter market and quotations for which are reported by
the Nasdaq National Market or which are listed on the New York Stock Exchange,
as the case may be. The parties understand that this covenant shall terminate
upon a "going private transaction" or the sale or merger of the Company or
similar transaction.
(r)
(s) Restriction on Sale of Securities. During a period of 90 days from the
date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, directly or indirectly, (i) offer to sell,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise transfer or dispose of any share of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
of itself or any Subsidiary or file any registration statement under the 1933
Act with respect to any of the foregoing, or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder or under the U.S. Purchase Agreement, (B) any shares of Common
Stock issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and referred to in the
Prospectuses, (C) any shares of Common Stock issued or options to purchase
Common Stock granted pursuant to existing employee benefit plans or other stock
option plans of the Company referred to in the Prospectuses, (D) the filing of
Registration Statements on Form S-4 covering up to 10,000,000 shares of Common
Stock to be issued by the Company, or (E) the filing of a Registration Statement
on Form S-8 covering up to 41,000,000 shares of Common Stock granted under the
Company's stock option plans, plus additional shares to be registered under the
Tessera Stock Option Plan to be assumed by the Company.
(t)
(u) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(v)
(w) Compliance with Rule 463. The Company will file with the Commission
such reports and report the use of proceeds of the sale of the Securities as may
be required pursuant to Rule 463 of the 1933 Act Regulations.
(i) SECTION Payment of Expenses. Expenses. The Company will pay all expenses
-------------------
incident to the performance of its obligations under this Agreement, including
the preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, the printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, the preparation, issuance and delivery of the certificates for the
Securities to the Underwriters, including any stock or other transfer taxes and
any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters and the transfer of the Securities between the
International Managers and the U.S. Underwriters, the fees and disbursements of
the Company's counsel, accountants and other advisors, the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(f) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Underwriters in connection therewith and in connection with the
preparation of the Blue Sky Survey and any supplement thereto, the printing and
delivery to the Underwriters of copies of each preliminary prospectus, any Term
Sheets and of the Prospectuses and any amendments or supplements thereto, the
preparation and delivery to the Underwriters of copies of the Blue Sky Survey
and any supplement thereto, the fees and expenses of any transfer agent or
registrar for the Securities, the filing fees incident to, and the reasonable
fees and disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of the sale of the Securities, the transportation and other expenses
incurred by the Company in connection with presentations to prospective
purchasers of the Securities and the fees and expenses incurred in connection
with the inclusion of the Securities in the Nasdaq National Market.
(a) Expenses of the Selling Shareholders. The Selling Shareholders, severally
and not jointly, will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to the
Underwriters, and their transfer between the Underwriters pursuant to an
agreement between such Underwriters, and (ii) the fees and disbursements of
their respective counsel and accountants.
(b) Termination of Agreement. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company and the Selling Shareholders shall reimburse the
International Managers for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the International Managers.
(c)
(d) Allocation of Expenses. The provisions of this Section shall not affect any
agreement that the Company and the Selling Shareholders may make for the sharing
of such costs and expenses.
2. SECTION Conditions of International Managers' Obligations.
-------------------------------------------------
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any Subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the International Managers. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b)
(c) Opinions of Counsel for Company. At Closing Time, the Lead Managers shall
have received the favorable opinion, dated as of Closing Time, of (i) Xxxxxx &
Xxxxxx, a Professional Corporation, counsel for the Company, (ii) Xxxxxx,
Xxxxxxx & Xxxxxx, L.L.P., special counsel for the Company, (iii) Xxxxxx Xxxx,
LLP, special counsel for the Company and (iv) Xxxxxxx, Procter & Xxxx, LLP,
special counsel for the Company, in each case in form and substance reasonably
satisfactory to counsel for the International Managers, together with signed or
reproduced copies of each such letter for each of the other International
Managers to the effect set forth in Exhibits A-1 to A-4 hereto and to such
further effect as counsel to the International Managers may reasonably request.
(d)
(e) Opinion of Counsel for the Selling Shareholders. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing Time, of
counsel for each of the Selling Shareholders, in form and substance satisfactory
to counsel for the Underwriters, together with signed or reproduced copies of
such letters for each of the other Underwriters to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(f)
(g) Opinion of Counsel for International Managers. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing Time, of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the International
Managers, together with signed or reproduced copies of such letter for each of
the other International Managers, in customary form and covering such matters as
the International Managers may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Lead Managers. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
(h)
(i) Officers' Certificate. At Closing Time, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its Subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Lead Managers shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(j)
(k) Certificate of Selling Shareholders. At Closing Time, the Lead Managers
shall have received a certificate of an Attorney-in-Fact on behalf of each
Selling Shareholder, dated as of Closing Time, to the effect that (i) the
representations and warranties of each Selling Shareholder contained in Section
1(b) hereof are true and correct in all respects with the same force and effect
as though expressly made at and as of Closing Time and (ii) each Selling
Shareholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(l)
(m) Accountants' Comfort Letters. At the time of the execution of this
Agreement, the Lead Managers shall have received from PricewaterhouseCoopers LLP
a letter dated such date, in form and substance reasonably satisfactory to the
Lead Managers, together with signed or reproduced copies of such letter for each
of the other International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectuses.
(n)
(o) Bring-down Comfort Letters. At Closing Time, the Lead Managers shall have
received from PricewaterhouseCoopers LLP a letter, dated as of Closing Time, to
the effect that it reaffirms the statements made
in the letter furnished pursuant to subsection (g) of this Section, except that
the specified date referred to shall be a date not more than three business days
prior to Closing Time.
(p)
(q) Approval of Listing. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(r)
(s) No Objection. The NASD has confirmed that it has not raised any objection
with respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(t) Lock-up Agreements. At the date of this Agreement, the Lead Managers shall
have received an agreement substantially in the form of Exhibit C hereto signed
by the stockholders and option holders of any securities of the Company and its
Subsidiaries listed on Schedule D hereto.
(u)
(v) Purchase of Initial International Securities. Contemporaneously with the
purchase by the International Managers of the Initial International Securities
under this Agreement, the U.S. Underwriters shall have purchased the Initial
U.S. Securities under the U.S. Purchase Agreement.
(w)
(x) Conditions to Purchase of International Option Securities. In the event
that the International Managers exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the International Option Securities,
the representations and warranties of the Company and the Selling Shareholders
contained herein and the statements in any certificates furnished by the Company
or any Subsidiary of the Company and the Selling Shareholders hereunder shall be
true and correct as of each Date of Delivery and, at the relevant Date of
Delivery, the Lead Managers shall have received:
(y)
(i) Officers' Certificate. A certificate, dated such Date of Delivery, of
---------------------
the President or a Vice President of the Company and of the chief financial
or chief accounting officer of the Company confirming that the certificate
delivered at the Closing Time pursuant to Section 5(d) hereof remains true
and correct as of such Date of Delivery.
(i) Opinions of Counsel for Company. The favorable opinion of each of (a)
-------------------------------
Xxxxxx & Xxxxxx, a Professional Corporation, counsel for the Company, (b)
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P., special counsel for the Company, (c)
Xxxxxx Xxxx, LLP, special counsel for the Company and (d) Xxxxxxx, Procter
& Xxxx, LLP, special counsel for the Company, in each case in form and
substance reasonably satisfactory to counsel for the International
Managers, dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(b) hereof.
(i) Opinion of Counsel for International Managers. The favorable opinion
---------------------------------------------
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the International
Managers, dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(i) Bring-down Comfort Letters. A letter from PricewaterhouseCoopers LLP
--------------------------
in form and substance reasonably satisfactory to the Lead Managers and
dated such Date of Delivery, substantially in the same form and substance
as the letter furnished to the Lead Managers pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(a) Additional Documents. At Closing Time and at each Date of Delivery, counsel
for the International Managers shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to pass
upon the issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Lead Managers and counsel for the
International Managers.
(b)
(c) Termination of Agreement. If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of International Option
Securities on a Date of Delivery which is after the Closing Time, the
obligations of the several International Managers to purchase the relevant
Option Securities, may be terminated by the Lead Managers by notice to the
Company at any time at or prior to Closing Time or such Date of Delivery, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
1. SECTION Indemnification.
---------------
2.
(a) Indemnification of International Managers by the Company and Certain
Selling Shareholders. The Company and the Selling Shareholders listed on
Schedule E hereto, jointly and severally, agree to indemnify and hold harmless
each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(e) below) any such settlement is effected with the written consent of the
Company and the counsel for the Selling Shareholders; and
(ii) against any and all expense whatsoever, as incurred (including the
reasonable fees and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this indemnity agreement shall not apply to
--------------- -------
any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with written information furnished
to the Company by any International Manager through the Lead Managers
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the International Prospectus
(or any amendment or supplement thereto); provided, however, that no such
-------- -------
Selling Shareholder shall be liable for any claims hereunder in excess of
the amount of net proceeds received by such Selling Shareholder from the
sale of Securities pursuant to this Agreement; and provided further that
-------- -------
the Company and such Selling Shareholders will not be liable to any U.S.
Underwriter with respect to any U.S. Prospectus to the extent that the
Company or such Selling Shareholders shall sustain the burden of proving
that any such loss, liability, claim, damage or expense resulted from the
fact that such U.S. Underwriter, in contravention of a requirement of this
Agreement or applicable law, sold Securities to a person to whom such U.S.
Underwriter failed to send or give, at or prior to the Closing Date, a copy
of the Final Prospectus, as then amended or supplemented if: (i) the
Company has previously furnished copies thereof (sufficiently in advance of
the Closing Date to allow for distribution by the Closing Date) to the U.S.
Underwriter and the loss, liability, claim, damage or expense of such U.S.
Underwriter resulted from an untrue statement or omission of a material
fact contained in or omitted from the Preliminary Prospectus which was
corrected in the Final Prospectus as, if applicable, amended or
supplemented prior to the Closing Date and such Final Prospectus was
required by law to be delivered at or prior to the written confirmation of
sale to such person and (ii) such failure to give or send such Final
Prospectus by
the Closing Date to the party or parties asserting such loss, liability,
claim, damage or expense would have constituted a defense to the claim
asserted by such person.
Insofar as this indemnity agreement may permit indemnification for
liabilities under the 1933 Act of any person who is a partner of an
International Manager or who controls an underwriter within the meaning of
Section 15 of 1933 Act or Section 20 of the 1934 Act and who, at the date
of this Agreement, is a director or officer of the Company or controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, such indemnity agreement is subject to the undertaking of the
Company in the Registration Statement under Item 14 thereof.
(a) Indemnification of International Managers by Selling Shareholders Not
Listed on Schedule E hereto. Each Selling Shareholder (other than those Selling
Shareholders listed on Schedule E hereto, which shareholders are subject to the
provisions of Section 6(a) hereof) severally, but not jointly, agrees to
indemnify and hold harmless each International Manager and the other Selling
Shareholders, and each of their respective directors and officers, and each
person, if any, who controls any International Manager or any other Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 6(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, contained in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Selling
Shareholder furnished to the Company by such Selling Shareholder expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the International Prospectus (or any amendment or supplement
thereto); provided, however, that no such Selling Shareholder shall be liable
-------- -------
for any claims hereunder in excess of the amount of net proceeds received by
such Selling Shareholder from the sale of Securities pursuant to this Agreement.
(b)
(c) Indemnification of Company, Directors and Officers and Selling
Shareholders. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each
Selling Shareholder and each person, if any, who controls any Selling
Shareholder within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(d)
(e) Actions against Parties; Notification. Each indemnified party shall give
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Sections 6(a) and 6(b)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 6(c) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(f)
(g) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party, prior to the
date of such settlement, (1) reimburses such indemnified party in accordance
with such request for the amount of such fees and expenses of counsel as the
indemnifying party believes in good faith to be reasonable, and (2) provides
written notice to the indemnified party that the indemnifying party disputes in
good faith the reasonableness of the unpaid balance of such fees and expenses.
(h)
(i) Order of Priority for Indemnification. The International Managers shall
seek indemnification to which they are entitled under Sections 6(a) and 6(b)
hereof or contribution under Section 7 hereof first from the Company. In the
event that the International Managers are unable (or reasonably believe they
will be unable to) obtain such indemnification or contribution from the Company,
the International Managers may then seek indemnification or contribution from
the Selling Shareholders.
(j)
(k) Other Agreements with Respect to Indemnification. The provisions of this
Section shall not affect any agreement among the Company and the Selling
Shareholders with respect to indemnification.
1. SECTION Contribution. If the indemnification provided for in Section 6
------------
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the International Managers on
the other hand in connection with the statements or omissions, which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the International Managers on the other hand in connection
with the offering of the U.S. Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from
the offering of the International Securities pursuant to this Agreement (before
deducting expenses) received by the Company and the Selling Shareholders and the
total underwriting discount received by the International Managers, in each case
as set forth on the cover of the International Prospectus, or, if Rule 434 is
used, the corresponding location on the Term Sheet, bear to the aggregate public
offering price of the International Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company and the
Selling Shareholders or by the International Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Selling Shareholders and the International Managers agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the International Managers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 7. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 7 shall be deemed to include any reasonable legal or other expenses
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, (x) no International
Manager shall be required to contribute any amount in excess of the amount by
which the total price at which the International Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Manager has otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission and (y) no Selling Shareholder shall be required to contribute any
amount in excess of such Selling Shareholder's net proceeds (after deducting the
underwriting discount, but before deducting expenses) from the sale of
Securities pursuant to this Agreement.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or such Selling Shareholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
The provisions of this Section shall not affect any agreement among the
Company and the Selling Shareholders with respect to contribution.
1. SECTION Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries or the
Selling Shareholders submitted pursuant hereto, shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any International Manager or controlling person, or by or on behalf of the
Company or the Selling Shareholders, and shall survive delivery of the
Securities to the International Managers.
1. SECTION Termination of Agreement.
------------------------
2.
(a) Termination; General. The Lead Managers may terminate this Agreement, by
notice to the Company and the Selling Shareholders, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
International Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Lead Managers, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the Nasdaq National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(a) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections 1, 6, 7 and 8
shall survive such termination and remain in full force and effect.
1. SECTION Default by One or More of the International Managers. If one or
----------------------------------------------------
more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the number of
U.S. Securities to be purchased on such date, each of the non-defaulting
International Managers shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting International Managers, or
(b)
(c) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the International Managers to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting International
Manager.
(d)
(e) No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
(f)
(g) In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers or
the Company and any Selling Shareholder shall have the right to postpone Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section 10.
1. SECTION Default by One or More of the Selling Shareholders or the
---------------------------------------------------------
Company.
-------
2.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders do not exercise the right hereby granted to
increase, pro rata or otherwise, the number of Securities to be sold by them
hereunder to the total number to be sold by all Selling Shareholders as set
forth in Schedule B hereto, then the International Managers may, at option of
the Lead Managers, by notice from the Lead Managers to the Company and the non-
defaulting Selling Shareholders, either (a) terminate this Agreement without any
liability on the fault of any non-defaulting party except that the provisions of
Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (b) elect to
purchase the Securities which the non-defaulting Selling Shareholders and the
Company have agreed to sell hereunder. No action taken pursuant to this Section
11 shall relieve any Selling Shareholder so defaulting from liability, if any,
in respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section 11, each of the Lead Managers, the Company and the non-defaulting
Selling Shareholders shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(a) If the Company shall fail at Closing Time or at the Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate without any liability on the part of any nondefaulting
party; provided, however, that the provisions of Sections 1, 4, 6, 7 and 8 shall
remain in full force and effect. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
1. SECTION Notices. All notices and other communications hereunder shall be
-------
in writing and shall be deemed to have been duly given if mailed or transmitted
by any standard form of telecommunication. Notices to the International Managers
shall be directed to the Lead Managers at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx
Xxxx, Xxxxxxxxxx 00000-0000, attention of Xxxx Xxxxxxxx, with a copy to Xxxxxxx
X. Xxxxx, Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx, 00000; and notices to the Company shall be directed to it at
0000 Xxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, attention of M. Xxxxx Xxxxxxxx
with copies to Xxxxx X. Xxxxxxxxx, Xxxxxx & Xxxxxx, One Buckhead Plaza, 0000
Xxxxxxxxx Xxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000; notices to the Selling
Shareholders shall be directed to the Company at 0000 Xxxxx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx 00000, attention of M. Xxxxx Xxxxxxxx, with copies to Xxxxx X.
Xxxxxxxxx, Xxxxxx & Xxxxxx, One Buckhead Plaza, 0000 Xxxxxxxxx Xxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000.
1. SECTION Parties. This Agreement shall each inure to the benefit of and be
-------
binding upon the International Managers, the Company and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
1. SECTION GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
1. SECTION Effect of Headings. The Article and Section headings herein and
------------------
the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement among the International Managers,
the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
IXL ENTERPRISES, INC.
By
Name:
Title:
By
As Attorney-in-Fact on behalf of the
Selling Shareholders named in Schedule B
hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
XXXXXXXXX, LUFKIN & XXXXXXXX INTERNATIONAL
BANCBOSTON XXXXXXXXX XXXXXXXX INTERNATIONAL LTD
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
By: XXXXXXX XXXXX INTERNATIONAL
By
Name:
Title:
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
----------------------------- ----------
Xxxxxxx Xxxxx International 532,000
Xxxxxxxxx, Lufkin & Xxxxxxxx International 532,000
BancBoston Xxxxxxxxx Xxxxxxxx International Ltd. 224,000
The Xxxxxxxx-Xxxxxxxx Company, LLC 112,000
----------
Total: 1,400,000
1
SCHEDULE B
Number of Initial Maximum Number of
International International Securities to
Securities to be Sold Be Sold
--------------------- ---------------------------
IXL ENTERPRISES, INC. 400,000 210,000
SELLING SHAREHOLDERS
General Capital Assurance Company 12,592 --
GE Capital Equity Investments, Inc. 100,741 --
General Electric Pension Trust 25,185 --
Xxxxx X. Xxxx 100,740 --
Xxxxx X. Xxxxx 60,444 --
Xxxxx X. Xxxxx 22,274 --
@xxxxxxx.xxxxx, Inc. 202 --
Xxxxx Xxxxx Xxxxx 14,656 --
Xxxxx Xxxxx Xxxxx Irrevocable Trust 10,074 --
Xxxxx X. Xxxxxxxxx 5,037 --
Xxxxxx X. Xxxxxx 1,511 --
Xxx Xxxx 504 --
Xxxxxx Xxxxx Xxxxxx 1,007 --
Xxxxxx Xxxx 27,704 --
Xxxxxx X. Xxxx 18,637 --
Xxxx Xxxx 1,209 --
Xxxxxx Xxxxxx 6,548 --
Xxxxxx Xxxx (Trustee of the Xxxx Family Trust dated 8/17/82) 371 --
Xxxxxx Technology Partners, Ltd. 520 --
Xxxx Xxxx 1,007 --
Xxxxx X. Xxxxxxx 1,007 --
Xxxxxx X. Xxxxxxxxxxx 252 --
Xxxxxx Xxxxxx 5,037 --
Xxxxx X. Xxxxxxx 10,074 --
Xxxxxx X. Xxxxxx 10,187 --
Xxxxxxx X. Xxxx 5,037 --
Xxx Technology Investments, Inc. 20,148 --
Xxxxx Xxxxxxxxxx 4,533 --
Xxxxxx Xxxxxxx 257 --
Xxxxxxx X. Xxxxx (Estate of) 2,720 --
Xxx Xxxxxxxx 7,556 --
Xxxxx Xxxxx 761 --
Xxxxxx X. Xxxx 504 --
1
Xxxx Xxxxx Xxxxxxx 403 --
Xxxxx X. Xxxxxxxx 252 --
Xxxxxx X. Xxxxxxx 504 --
Xxxx Partners 20,148 --
Xxxxxxx Xxxxxxx Xxxxx 40,296 --
Xxxx X. Xxxxxxx 13,432 --
Xxxxxx X. Xxx 1,068 --
Xxxx X. Xxxxxxxx 10,074 --
Xxxxx X. Xxxxxx 1,209 --
Xxxxxx Gear 151 --
Xxxxxxx Xxxxxx 459 --
Xxxxxxx Xxxxxxx 1,523 --
Xxxxx Xxxxxxxx 403 --
Xxxxx Xxxxxxxxx 1,511 --
Xxxxxxx X. and Xxxxxx Xxxxxx, tenants by the entirety 3,022 --
Xxxxxxx X. Xxxxx, Xx. 201 --
Xxxx Grand 8,890 --
Xxxxx Xxxxxxx 1,147 --
Xxxxxx Xxxxx 11,614 --
Guren Family Trust 403 --
Xxxx X. Xxxxxxxxx 17,468 --
Xxxx X. Xxxxxxxx 705 --
Xxxxx X. Xxxxxxxx 604 --
Xxxxxxx Xxxxxxx 15,111 --
Xxxxxxx X. Xxxxxx 60 --
Xxxxx X. Xxxxx 249 --
Investar Burgeon Venture Capital, Inc. 1,192 --
Xxxxxxx X. Xxxxxxx 1,828 --
Xxxx Xxxxxxxxxx 10,251 --
Xxxxxxx Xxxxx 10,320 --
Xxxxxx Xxxx 8,059 --
Xxxx X. Keilhacker 1,551 --
Xxxxxx X. Xxxxxxx (Estate of) 1,431 --
Xxxxxxx X. Xxxxxx 504 --
Xxxxxxx X. Xxxxxx 1,511 --
Xxxx Xxxxxxxx 1,217 --
Lazarus Family Investments, LLC 201 --
M.R.W. Ventures, LLC 1,108 --
Xxxxxx X. Xxxxxxxx 4,030 --
Xxxxxx X. XxXxxx 151 --
Xxxx X. XxXxxx 1,007 --
Xxxx X. XxXxxxxxxxxx 3,526 --
2
Xxxxx XxXxxxx 3,362 --
Mellon Ventures II, L.P. 30,222 --
Xxxxxxx Xxxxxx 11,915 --
MKA Partners, L.P. 4,533 --
Xxxxx Xxxxxx 504 --
Xxxxx X. Xxxxxx Trust 2,189 --
Xxxxx Xxxxxx 9,872 --
Xxxxxxx Xxxxxxxx 19,745 --
Xxxxxxx Xxxxxxx 756 --
Xxxxxx X'Xxxxx 252 --
Xxxxxx Xxxxx 2,015 --
Xxxxxxx Xxxxxxxxxx 1,511 --
Xxxx X. Xxxxxxxxx 201 --
N. Xxxxx Xxxxxx 554 --
Xxxx Xxxxx 5,037 --
Xxxxxxxxx X.X. Xxxxxxxx 166 --
Xxxxxxx X. Xxxx 6,587 --
Xxxxxx Xxxxxxxx 1,007 --
Xxxx Xxxxx 705 --
Xxxxx X. Xxxxxxxx 1,007 --
Xxxxx X. Xxxxxx 2,518 --
Xxxxx Xxxxxxx 201 --
Xxxxxxx X. Xxxxxxxx 3,022 --
X. Xxxxx Xxxxxxx-Xxxxxxx 538 --
Xxxxx X. Xxxxxx 2,015 --
Xxxxxxx Xxxxxxxx 1,007 --
Xxxxx X. Xxxx 10,074 --
Xxxx Xxxx Xxxxxxx 1,456 --
Xxxxxxx Xxxxxxx 1,229 --
Xxxxxxx X. Xxxxxxx 1,259 --
Xxxx X. Xxxxxx 403 --
Xxxx Xxxxxxx 10,074 --
Thomson U.S. Inc. 108,515 --
Xxxx Xxxxxxx 2,015 --
Xxxxxxx Xxxxxxxx 1,975 --
Xxxxxxx X. Xxxxxxxx 1,441 --
Xxxxx Xxxxxx 1,007 --
WebListing Corporation Profit Sharing Plan 5,823 --
Weissmann, Wolff, Xxxxxxx, Xxxxxxx & Xxxxxxxxx, LLP 3,218 --
Xxxxx X. Xxxxx 1,551 --
Xxxxxxx X. Xxxxxxx 18,153 --
3
Xxxxxxxxx Xxxxxxx 94 --
Xxxxxxx Xxxx 19,760 --
Xxxxxx X. Xxxxxx 1,007 --
Wyler Irrevocable Trust FBO Xxxxx Xxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx 1,007 --
Xxxxx Xxxxx 20,148 --
Xxxxxxx Xxx 520 --
---------------- ----------------
1,000,000 0
Total 1,400,000 210,000
4
SCHEDULE C
IXL ENTERPRISES, INC.
1,400,000 Shares of Common Stock
(Par Value $0.01 Per Share)
1. The public offering price per share for the International Securities,
determined as provided in said Section 2, shall be $[ ].
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $[ ], being an
amount equal to the public offering price set forth above less $0.[ ]
per share; provided that the purchase price per share for any International
Option Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option Securities.
1
SCHEDULE D
Persons and entities
subject to lock-up
"@xxxxxxx.xxxxx, Inc."
Xxxxx, Xxxxx Xxxxx
Xxxxx, Xxxxx Xxxxx Irrevocable Trust
Xxxxxxxxx, Xxxxx X.
ALTRU Trust, an Irrevocable Trust
Xxxxxx, Xxxxxx X.
Xxxx, Xxx
Xxxxxx, Xxxxxx Xxxxx
Xxxx, Xxxxxx
Xxxx, Xxxxxx X.
Xxxx, Xxxx
Xxxxxx, Xxxxxx
Xxxx, Xxxxxx (Trustee of the Xxxx Family
Trust dated 8/17/82)
Xxxx, Xxxx
Xxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx X.
Xxxxxxxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxx
Xxxxxx, Xxxxxx X.
Xxx Technology Investments, Inc.
Xxxxxxx, Xxxxxx
Xxxxx, Xxxxxxx X. (Estate of)
Xxxxxxxx, X.X., III
Davidson, Xxx
Xxxxx, Xxxxx
Xxxxx, Xxxxxxx X., III
Xxxx, Xxxxxx X.
Xxxxxxxx, Xxxxx X.
Xxxxx, Xxxxxx
Xxxx Partners
Flatiron Associates, LLC
Flatiron Fund 1998/99, LLC
Flatiron Fund, LLC
Xxxxx, Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxx X.
Xxx, Xxxxxx X.
Xxxxxxxx, Xxxx X.
Xxxxx, Xxxxxxx
Xxxxxx, Xxxxx X.
Gear, Xxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxxx, Xxxxx Inter Vivos Trust dated
4/27/93 - Xxxxx Xxxxxxxxx, Trustee
Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxxxxx X. and Xxxxxx, tenants by
the entirety
Grand, Xxxx
Xxxxxxx, Xxxxx
Xxxxx, Xxxxxx
Greystone Capital Partners, I.L.P.
Guren Family Trust
Xxxxxxxx, Xxxxxxxx (Trust)
Xxxxxxxx Cadillac, Inc.
Xxxxxxxx, Xxxx X.
Xxxxxxxx, Xxxxx X.
Xxxxxxxx, Xxxxxxx X.
Xxxxxxxx, Xxxx X.
Xxxxxxx, Xxxx X.
Investar Burgeon Venture Capital, Inc.
Xxxxxxxxxx, Xxxx
Xxxxx, Xxxxxxx
Xxxxxx, Xxxx
Xxxx, Xxxxxx
Xxxxxxxxxx, Xxxx X.
Xxxxx Enterprises Ltd.
Xxxxxxx, Xxxxxx X. (Estate of)
Xxxxxx, Xxxxxx X.
Xxxxx, Xxxxxx X.
Xxxxxxxx, Xxxx
Xxxx Family Partneship - VI, LLP
Marks, Xxxxxxx X.
XxXxxx, Xxxxxx X.
XxXxxx, Xxxx X.
XxXxxxxxxxxx, Xxxx X.
Xxxxxx, Xxxxxxx
MKA Partners, X.X.
Xxxxxx, Xxxxx
Xxxxxx, Xxxxx
Nailing, Xxxxxxx
Next Century Communications Corp.
Xxxxxxx, Xxxxxxxx
X'Xxxxx, Xxxxxx
Xxxxx, Xxxxxxxx (Trust)
Xxxxx, Xxxxxx (Trust)
Xxxxx, Xxxxxx
Xxxxxxxxxx, Xxxxxxx
Parent, Xxxx
Xxxxx, Xxxx
Xxxxxxxx, Xxxxxxxxx X.X.
Xxxx, Xxxxxxx X.
Xxxxxxxx, Xxxxxx
Xxxxx, Xxxxxxx (Trust)
Xxxx, Xxxxxxxxxxx (Trust)
1
Xxxxx, Xxxxx
Xxxxx, Xxxxx (Trust)
Xxxxx, Xxxxx (Trust)
Xxxxx, Xxxxx (Trust)
Xxxxx, Xxxxxxxx Xxx (Trust)
Xxxxxxxx, Xxxxx X.
Xxxxxxx, Xxxxx
Xxxxxxxx, Xxxxxxx X.
Xxxxxxx-Xxxxxxx, X. Xxxxx
Xxxxxx, Xxxxx X.
Xxxxxxxx, Xxxxxxx
Xxxx, Xxxxx X.
Xxxxxxx, Xxxx Xxxx
Xxxxxxx, Xxxxxxx
Xxxxx, Xxxxx
Xxxxxxx, Xxxxxx X.
Xxxxx, Xxxxxxx X.
Xxxxxxx, Xxxx
Xxxxxxxx, Xxxxxxx X.
Xxxxxxx U.S. Inc.
Xxxxxxx, Xxxx
Xxxxxxxx, Xxxxxxx
Xxxxxx, Xxxxx
Xxxx 1999 Family Trust
Xxxxxx, Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxx X.
Xxxx, Xxxxxxx
Xxxxxx, Xxxxxx X.
Xxxxx Irrevocable Trust FBO Xxxxx Xxxxx,
Xxxxx Xxxxx, Xxxxx Xxxxx
Xxxxx, Xxxxx
Xxx, Xxxxxxx
SCHEDULE E
List of Selling Shareholders who
are Executive Officers of the Company
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxx
1
Exhibit A-1
FORM OF OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(i) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as presently conducted
and as described in the Prospectuses and to enter into and perform its
obligations under the Purchase Agreement.
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction listed on Schedule A
attached hereto which to our knowledge is each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not reasonably be expected to result in a
Material Adverse Effect.
(i) On December 31, 1998 and Pro Forma for issuances of capital stock
occurring between January 1, 1999 and the Closing, the authorized, issued
and outstanding capital stock of the Company was and is as described in the
Prospectuses under the caption entitled "Capitalization" and, after giving
effect to the offering will be as described as Pro Forma as Adjusted under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements, or pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectuses or
pursuant to the exercise of convertible securities or options referred to
in the Prospectuses, and except for 10,000,000 shares of Common Stock
registered pursuant to Registration Statements on Form S-4 for use in
future acquisitions), and the number of authorized, issued and outstanding
options and other rights to acquire capital stock is as described under
such caption. The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and to our knowledge none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or
other similar rights of any security holder of the Company. Except as
disclosed in the Prospectuses, to our knowledge, there are no outstanding
options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or, any
contracts or commitments to issue or sell, shares of the Company's or its
Subsidiaries' capital stock or any such options, rights, convertible
securities or obligations. The description of the Company's stock option
and purchase plans, and the options or other rights granted and exercised
thereunder, set forth in the Prospectuses accurately and fairly presents in
all material respects the information required to be shown with respect to
such plans, options and rights.
(i) The Securities have been duly authorized for issuance and sale to the
Underwriters pursuant to the Purchase Agreements and, when issued and
delivered by the Company pursuant to the Purchase Agreements against
payment of the consideration set forth in the Purchase Agreements, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability by reason of being
such a holder. The Common Stock conforms in all material respects as to
legal matters to all statements relating thereto contained in the
Prospectuses and such descriptions conform to the rights set forth in the
instruments defining the same.
(i) To our knowledge, the sale of the Securities by the Company and the
sale of the Securities by the Selling Shareholders is not subject to
preemptive rights, co-sale rights, rights of first refusal or similar
1
rights of any security holder of the Company, and except as disclosed in
the Prospectuses, is not subject to registration rights. The Securities
will be sold free and clear of all liens, encumbrances, equities or claims.
(i) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction listed on Schedule A attached hereto
which to our knowledge is each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not reasonably be expected to result in a Material
Adverse Effect; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to our knowledge, is owned by the Company, directly or
through Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; to our knowledge none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any security holder of
such Subsidiary or other party. To our knowledge, except as described in
the Prospectuses or except as not required to be disclosed in the
Prospectuses, the Company has no written agreement, commitment or
understanding with respect to acquiring the business, stock, or material
assets, except assets acquired in the ordinary course of business, of any
other person or entity.
(i) The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required
filing of the Prospectuses pursuant to Rule 424(b) have been made in the
manner and within the time period required by Rule 424(b); and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under
the 1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(i) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectuses and each amendment or supplement to the
Registration Statement and Prospectuses as of their respective effective or
issue dates (other than the financial statements and notes thereto, other
financial information and supporting schedules included therein or omitted
therefrom, as to which we need express no opinion) complied as to form in
all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
(i) If Rule 434 has been relied upon, the Prospectuses were not
"materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it became
effective.
(i) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable requirements of the General
Corporation Law of the State of Delaware, with any applicable requirements
of the charter and by-laws of the Company and the requirements of the
Nasdaq National Market.
(i) To our knowledge, other than as set forth in the Prospectuses, there
is not pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or any Subsidiary is a party, or to
which the property of the Company or any Subsidiary is subject, before or
brought by any court or governmental agency or body (domestic or foreign),
which might reasonably be expected to result in a Material Adverse Effect,
or which might reasonably be expected to materially and adversely affect
the
2
properties or assets thereof or the consummation of the transactions
contemplated in the Purchase Agreements or the performance by the Company
of its obligations thereunder.
(i) The information in the Prospectuses under (A) "Certain Transactions,"
and "Management" and (B) in the Registration Statement under Item 14, to
the extent that it constitutes matters of law, summaries of legal matters,
the Company's charter and by-laws or legal proceedings, or legal
conclusions, has been reviewed by us and is correct in all material
respects.
(i) To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
(i) All descriptions in the Registration Statement of contracts and other
documents to which the Company or its Subsidiaries are a party are accurate
in all material respects; to our knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto, and the descriptions thereof or references thereto are correct in
all material respects.
(i) To our knowledge, neither the Company nor any Subsidiary is in
violation of its charter or by-laws.
(i) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any federal or Georgia court or
governmental authority or agency, (other than under the 1933 Act and the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations which have
been obtained, or as may be required under the securities or blue sky laws
of the various states, as to which we need express no opinion) is necessary
or required to be obtained by the Company or any of its Subsidiaries in
connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance or sale of the Securities
to the Underwriters.
(i) The execution, delivery and performance of the Purchase Agreements and
the consummation of the transactions contemplated in the Purchase
Agreements and in the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under the
Purchase Agreements do not and will not, whether with or without the giving
of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined in Section 1(a)(x) of the
Purchase Agreements) under or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
any Subsidiary pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument listed on the Exhibit Index to the S-1 Registration Statement,
to which the Company or any Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company
or any Subsidiary is subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not reasonably be
expected to have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any Subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or material decree, known to us, of the General Corporation Law
of the State of Delaware, any Georgia or United States federal court,
government or government instrumentality having jurisdiction over the
Company or any Subsidiary or any of their respective properties, assets or
operations.
(i) To our knowledge, except as described in the Prospectuses, there are
no persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
3
(i) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the 1940 Act.
(i) CFN has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and
has the corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses.
We have not ourselves checked the accuracy and completeness of, or
otherwise verified, and are not passing upon and assume no responsibility for
the accuracy or completeness of, the statements contained in the Registration
Statement or the Prospectuses, except to the limited extent stated in paragraph
(iv), the second sentence of paragraph (v), paragraph (xiv) and the first clause
of paragraph (xvi) above. In the course of our review and discussion of the
contents of the Registration Statement and the Prospectuses with certain
officers and employees of the Company and its independent accountants, but
without independent check or verification, no facts have come to our attention
which cause us to believe that the Registration Statement (other than the
financial statements and notes thereto, other financial information and
supporting schedules contained therein or omitted therefrom, as to which we
express no belief), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, or that the Prospectuses (other than the financial statements and
notes thereto, other financial information and supporting schedules contained
therein or omitted therefrom, as to which we express no belief), as of their
dates and as of the date hereof, contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
4
Exhibit A-2
FORM OF OPINION OF XXXXXX,
XXXXXXX & XXXXXX, L.L.P.
TO BE DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation," only
insofar as those statements constitute a summary of principles of insurance
laws or regulations applicable to the CFN Agency, Inc. business fairly and
accurately represent the material insurance laws and regulations applicable
to the operation of CFN Agency, Inc. business and, to the best of our
actual knowledge, there are no state insurance statutes or regulations
material to the operation of CFN Agency, Inc. business that are required to
be described in the Prospectuses that are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that the
statements made in the Prospectuses under the captions "Risk Factors-
Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation" at the
time the Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, only insofar as those statements constitute a summary of
principles of state insurance laws or regulations to the CFN Agency, Inc.
business.
1
Exhibit A-3
FORM OF OPINION OF
XXXXXX XXXX, LLP TO BE
DELIVERED PURSUANT
TO SECTION 5(b)
(i) The statements made in the Prospectuses under the captions "Risk
Factors--Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation,"
insofar as those statements constitute a summary of principles of auto loan
broker laws or regulations applicable to the business of CFN, fairly and
accurately represent the material auto loan broker laws and regulations
applicable to the operation CFN's business and to the best of our
knowledge, there are no statutes or regulations material to the operation
of CFN's auto loan broker business that are required to be described in the
Prospectuses that are not described as required; and
(ii) Nothing has come to our attention that leads us to believe that the
statements made in the Prospectuses under the captions "Risk Factors--
Government Regulation and Legal Uncertainties Related to CFN Could
Adversely Affect Our Business" and "Business--Government Regulation," at
the time the Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, insofar as those statements constitute a summary of principles
of auto loan broker laws or regulations applicable to the business of CFN.
1
Exhibit A-4
FORM OF OPINION OF
XXXXXXX, PROCTER & XXXX, LLP
DELIVERED PURSUANT TO
SECTION 5(b)
(i) The statements made under "Risk Factors--Risks Relating to Our CFN
Subsidiary--Government regulation and Legal Uncertainties Related to CFN
Could Adversely Affect Our Business." and "Business--Consumer Financial
Network-- Government Regulation of Insurance, Auto Finance and Mortgages"
(the "Risk Factor Information") contained in the Prospectus regarding
residential mortgage issues insofar as those statements constitute a
summary of principles of mortgage loan laws or regulations applicable to
the business of CFN, fairly and accurately represent the material mortgage
loan laws and regulations applicable to the operation of the CFN home
finance program; and
(ii) On the basis of the information that we have gained in the course of
participating in the preparation of the Risk Factor Information, nothing
has come to our attention that would lead us to believe that the statements
made regarding residential mortgage issues in the Risk Factor Information
(i) in the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, insofar as those statements constitute a
summary of the principles of mortgage loan laws or regulations applicable
to the CFN home finance program, or (ii) in the Prospectus, at the time the
Prospectus was issued or at the initial closing of the Offering, included
or includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
insofar as those statements constitute a summary of the principles of
mortgage loan laws or regulations applicable to the CFN home finance
program. In rendering such opinion, we have relied as to matters of fact
(but not as to legal conclusions), to the extent we have deemed proper, on
certificates or affidavits of responsible officers of the Company.
1
Exhibit B
FORM OF OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(c)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state securities
laws, as to which we need express no opinion) is necessary or required to be
obtained by the Selling Shareholders for the performance by each Selling
Shareholder of its obligations under the Purchase Agreement or in the Power of
Attorney and Custody Agreement, or in connection with the offer, sale or
delivery of the Securities.
(ii) Each Power of Attorney and Custody Agreement has been duly executed
and delivered by the respective Selling Shareholders named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder,
enforceable in accordance with its terms.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Securities on behalf of the Selling Shareholders in
accordance with the terms of the Purchase Agreement.
(v) The execution, delivery and performance of the Purchase Agreement and
the Power of Attorney and Custody Agreement and the sale and delivery of the
Securities and the consummation of the transactions contemplated in the Purchase
Agreement and in the Registration Statement and compliance by the Selling
Shareholders with their obligations under the Purchase Agreement have been duly
authorized by all necessary action on the part of the Selling Shareholders and
do not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under or
result in the creation or imposition of any tax, lien, charge or encumbrance
upon the Securities or any property or assets of the Selling Shareholders
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which any
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of the Selling Shareholders may be subject nor will such
action result in any violation of the provisions of the charter or by-laws of
the Selling Shareholders, if applicable, or any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) By delivery of a certificate or certificates therefor such Selling
Shareholder will transfer to the Underwriters who have purchased such Securities
pursuant to the Purchase Agreement (without notice of any adverse claim to the
Securities) valid and marketable title to such Securities, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of any
kind.
2
[Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(k)]
Exhibit C
October ___, 1999
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
First Union Securities, Inc.
The Xxxxxxxx-Xxxxxxxx Company, LLC
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
The undersigned, a security holder of iXL Enterprises, Inc., a Delaware
corporation (the "Company"), or one of its Subsidiaries (as such term is defined
in the Purchase Agreement (as defined herein)), understands that Xxxxxxx Xxxxx &
Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and
certain other underwriters propose to enter into a Purchase Agreement (the
"Purchase Agreement") with the Company and the Selling Shareholders referred to
to therein providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $0.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a security holder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Purchase Agreement
that, during a period of 90 days from the date of the Purchase Agreement, the
undersigned will not, without the prior written consent of Xxxxxxx Xxxxx,
directly or indirectly, (i) offer to sell, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file or cause to be filed
any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
The foregoing paragraph shall not apply to (a) transactions by any
person other than the Company relating to registered shares of Common Stock or
other securities acquired in open market transactions or (b) transfers of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock to a member of the undersigned's immediate family or to a trust of
which the undersigned or an immediate family member is the beneficiary (either
one a "Transferee") provided that upon any such transfer, the Transferee shall
sign a letter substantially similar to this letter agreement agreeing not to
sell, grant any option to purchase, or otherwise transfer or dispose of any such
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for the remainder of the above-referenced 90-day period.
1
The undersigned agrees that the provisions of this Agreement shall be
binding also upon the successors, assigns, heirs and personal representatives of
the undersigned and that any registration rights with respect to the offering of
Securities contemplated by the Purchase Agreement have been hereby waived.
Very truly yours,
Signature:
Print Name:
2
Exhibit C C-1
iii
