1
TH&T DRAFT: 2/25/99
[____________] SHARES
CAREERBUILDER, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
[____________], 1999
Credit Suisse First Boston Corporation
Xxxxxxxxx & Xxxxx LLC
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. CareerBuilder, Inc., a Delaware corporation
("COMPANY") proposes to issue and sell [_________] shares of its common stock,
$.001 par value per share ("SECURITIES") and the stockholders listed in Schedule
A hereto ("SELLING STOCKHOLDERS") propose severally to sell an aggregate of
[NUMBER] outstanding shares of the Securities (such [NUMBER] shares of
Securities being hereinafter referred to as the "FIRM SECURITIES"). The Company
also proposes to sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than [# SHOE] additional shares of its Securities, as set
forth below (such [# SHOE] additional shares being hereinafter referred to as
the "OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities are
herein collectively called the "OFFERED SECURITIES". The Company and the Selling
Stockholders hereby agree with the several Underwriters named in Schedule B
hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333- ) relating to the
Offered Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and either (A) has been
declared effective under
2
2 TH&T DRAFT: 2/25/99
the Securities Act of 1933, as amended ("ACT") and is not proposed to be amended
or (B) is proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "INITIAL REGISTRATION STATEMENT") has been
declared effective, either (A) an additional registration statement (the
"ADDITIONAL REGISTRATION STATEMENT") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the
Act and, if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement is
proposed to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant to the
initial registration statement and such additional registration statement. If
the Company does not propose to amend the initial registration statement or if
an additional registration statement has been filed and the Company does not
propose to amend it, and if any post-effective amendment to either such
registration statement has been filed with the Commission prior to the execution
and delivery of this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c) ("RULE 462(c)") under the
Act or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery of this
Agreement, the additional registration statement means (A) if the Company has
advised the Representatives to the several Underwriters named herein (the
"REPRESENTATIVES") that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or the
most recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c), or (B)
if the Company has advised the Representatives that it proposes to file an
amendment or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such amendment
or post-effective amendment, as the case may be, is declared effective by the
Commission. If an additional registration statement has not been filed prior to
the execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with respect to
such additional registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule 462(b).
"EFFECTIVE DATE" with respect to the initial registration statement or the
additional registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its Effective Time,
including all information contained in the additional registration statement (if
any) and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all information (if
any) deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL
3
3 TH&T DRAFT: 2/25/99
REGISTRATION STATEMENT". The additional registration statement, as amended at
its Effective Time, including the contents of the initial registration statement
incorporated by reference therein and including all information (if any) deemed
to be a part of the additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the "ADDITIONAL
REGISTRATION STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION STATEMENT". The
form of prospectus relating to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Act or (if no such filing is required) as included in a Registration
Statement, is hereinafter referred to as the "PROSPECTUS". No document has been
or will be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission ("RULES AND REGULATIONS") and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed or will conform, in
all respects to the requirements of the Act and the Rules and Regulations and
did not include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, (C) on the date of this
Agreement, the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at the time
of filing of the Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
and (D) no stop order suspending the effectiveness of a Registration Statement
or any part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act. If the Effective
Time of the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
4
4 TH&T DRAFT: 2/25/99
circumstances in which they were made, not misleading, and no Additional
Registration Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 7(c) hereof.
(iii) The Company has not distributed and, prior to the later
of (a) any Closing Date (as defined herein) and (b) the completion of the
distribution of the Offered Securities, will not distribute any offering
material in connection with the offering of the Offered Securities other than a
Registration Statement, any preliminary prospectus contained therein or the
Prospectus or any amendment or supplement thereto.
(iv) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would not have a
material adverse effect on the condition (financial or other), business,
prospects, properties or results of operations of the Company ("MATERIAL ADVERSE
EFFECT").
(v) The Company has no subsidiaries.
(vi) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and when the Offered Securities have
been delivered and paid for in accordance with this Agreement on each Closing
Date such Offered Securities will have been, validly issued, fully paid and
nonassessable; the offered Securities and all other outstanding shares of
Capital Stock of the Company conform to the description thereof contained in the
Prospectus; and no stockholder of the Company has any preemptive rights with
respect to the Securities. The information set forth [under the caption]
[PRECEDING THE CAPTION?] "CAPITALIZATION" [NOTE: WE'LL NEED TO REVISE THIS
BEFORE WE FILE BASED ON HOW THE TABLES COME OUT] in the Prospectus is true and
correct. The descriptions of the Company's stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted and
exercised thereunder, set forth or incorporated by reference in the Prospectus,
accurately and fairly present the information required to be shown with respect
to such plans, arrangements, options and rights. Without limiting the preceding
sentence, there are no outstanding options, warrants or other rights granted to
or by the Company to purchase Securities or other securities of the Company,
other than as described in the Prospectus.
5
5 TH&T DRAFT: 2/25/99
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities
in the securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Act.
(ix) The Offered Securities have been approved for listing
subject to notice of issuance on the Nasdaq Stock Market's National Market.
(x) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in connection
with the issuance and sale by the Company of the Offered Securities, except such
as have been obtained and made under the Act and such as may be required under
state securities laws or by the by-laws and rules of the National Association of
Securities Dealers, Inc. ("NASD").
(xi) The Company has full legal right, power and authority to
enter into this Agreement, the Irrevocable Power of Attorney of Selling
Stockholder by and between each Selling Stockholder and the Attorney-in-Fact
named therein, dated as of February [__], 1999 ("POWER OF Attorney") and the
Custody Agreement by and between each Selling Stockholder and the Custodian
named therein, dated as of February [__], 1999 (the "CUSTODY AGREEMENT"), and to
perform the transactions contemplated hereby and thereby. Each of this
Agreement, the Power of Attorney and the Custody Agreement have been duly
authorized, executed and delivered by the Company and is a valid and binding
agreement on the part of the Company, enforceable in accordance with its terms,
except as rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles.
(xii) The execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement, and the consummation
of the transactions herein and therein contemplated, will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the Company or
any of their properties, or any agreement or instrument to which the Company is
a party or by which the Company is bound or to which any of
6
6 TH&T DRAFT: 2/25/99
the properties of the Company is subject, or the charter or by-laws of the
Company, and the Company has full power and authority to authorize, issue and
sell the Offered Securities as contemplated in this Agreement.
(xiii) Except as disclosed in the Prospectus, the Company has
good and marketable title to all real properties and all other properties and
assets owned by it, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with the use
made or to be made thereof by it; and except as disclosed in the Prospectus, the
Company holds any leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use made or
to be made thereof by it.
(xiv) The Company possesses adequate certificates, authorities
or permits issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by it and has not received any notice of
proceedings relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company, would
individually or in the aggregate have a Material Adverse Effect. The Company is
not in violation of its charter or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material bond, debenture, note or other evidence of
indebtedness, or in any material lease, contract, indenture, mortgage, deed of
trust, loan agreement, joint venture or other agreement or instrument to which
the Company is a party or by which it or its properties may be bound; and the
Company is not in material violation of any law, order, rule, regulation, writ,
injunction, judgment or decree of any court, government or governmental agency
or body, domestic or foreign, having jurisdiction over the Company or over its
properties of which it has knowledge.
(xv) No labor dispute with the employees of the Company exists
or, to the knowledge of the Company, is imminent that might have a Material
Adverse Effect.
(xvi) The Company has the right to use all trademarks, trade
names, trade secrets, servicemarks, inventions, patent rights, mask works,
copyrights, licenses, software code, audiovisual works, formats, algorithms and
underlying data required to operate its business as presently being conducted
and proposed to be conducted as described in the Prospectus, and the Company has
all required approvals and governmental authorizations now used in, or which are
necessary for fulfillment of its obligations or the conduct of its business as
now conducted or proposed to be conducted as described in the Prospectus; and
the Company is not infringing any trademark, trade name rights, patent rights,
mask works, copyrights, licenses, trade secrets, servicemarks or other similar
rights of others, and there is no claim being made against the Company, and the
Company has not received any notice regarding, trademark, trade name, patent,
mask work, copyright, license, trade secrets or other infringement or assertion
of intellectual property rights which could have a Material Adverse Effect. The
Company has agreements in place with each employee, consultant or other person
or party engaged
7
7 TH&T DRAFT: 2/25/99
by the Company for the assignment to the Company, as the case may be, of all
intellectual property and exploitation rights in the work performed and the
protection of the trade secrets and confidential information of the Company and
of third parties which have been developed by such person for or on behalf of
the Company. The Company's internal computer software and systems, software
products, including TeamBuilder Software, and online product and service
offerings, including TeamBuilder Online (collectively, the "SOFTWARE") is
MILLENNIUM COMPLIANT (as defined below). For the purposes of this Agreement,
"MILLENNIUM COMPLIANT" means: (a) the functions, calculations, and other
computing processes of the Software (collectively, "PROCESSES") perform in an
accurate manner regardless of the date in time on which the Processes are
actually performed and regardless of the date input to the Software, and whether
or not the dates are affected by leap years; (b) the Software can accept, store,
sort, extract, sequence, and otherwise manipulate date inputs and date values,
and return and display date values, in a materially accurate manner regardless
of the dates used or format of the date input; (c) the Software will function
without interruptions caused by the date in time on which the Processes are
actually performed or by the date input to the Software; (d) the Software
accepts and responds to four (4) digit year date input in a manner that resolves
any material ambiguities as to the century in an accurate manner; and (e) the
Software displays, prints and provides electronic output of date information in
ways that are unambiguous as to the determination of the century.
(xvii) Except as disclosed in the Prospectus, the Company is
not in violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to the
use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any environmental
laws, is liable for any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim could individually or
in the aggregate have a Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
(xviii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, or any
of its properties that, if determined adversely to the Company, could
individually or in the aggregate have a Material Adverse Effect or could
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(xix) KPMG Peat Marwick LLP, who has certified the financial
statements filed with the Commission as part of the Registration Statement, are
independent public accountants as required by the Act and the Rules and
Regulations. The Company maintains a system of internal accounting controls
sufficient to provide
8
8 TH&T DRAFT: 2/25/99
reasonable assurances that (a) transactions are executed in accordance with
management's general or specific authorization; (b) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets; and (c) access to assets is permitted only in accordance with
management's general or specific authorization.
(xx) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of the
Company as of the dates shown and its results of operations and cash flows for
the periods shown, and such financial statements have been prepared in
conformity with generally accepted accounting principles in the United States;
and the schedules included in each Registration Statement present fairly the
information required to be stated therein. No other financial statements or
schedules are required to be included in the Registration Statement.
(xxi) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus, there has
been no Material Adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business prospects, properties or results of operations of the Company, and,
except as disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock.
(xxii) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed by it or has requested
extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect) and the Company has paid all material taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith.
(xxiii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "INVESTMENT COMPANY" as
defined in the Investment Company Act of 1940.
(xxiv) The Company carries, or is covered by, insurance in
such amounts and covering such risks as is adequate for the conduct of its
businesses and the value of its respective properties and as is customary for
companies engaged in similar businesses.
(xxv) The Company is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "REPORTABLE EVENT" (as defined in
ERISA) has occurred with respect to any "PENSION PLAN" (as defined in ERISA) for
which the Company would have any
9
9 TH&T DRAFT: 2/25/99
liability; the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "PENSION PLAN" or (ii) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder ("CODE"); and each "PENSION PLAN" for which the Company would have
any liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether by
action or by failure to act, which would cause the loss of such qualification.
(xxvi) Except as set forth in each Registration Statement and
the Prospectus, there are no agreements, claims, payment, issuances,
arrangements or understandings, whether oral or written, for services in the
nature of finder's, consulting or origination fees with respect to the sale of
the Offered Securities or any other arrangements, agreements, understandings,
payments or issuances with respect to the Company or any of its officers,
directors, shareholders, partners, employees, or affiliates that may affect the
Underwriters' compensation as determined by the NASD.
(xxvii) Except as set forth in each Registration Statement and
the Prospectus, no officer, director or shareholder of the Company or any
"AFFILIATE" or "ASSOCIATE" (as these terms are defined in Rule 405 under the
Act) of any of the foregoing persons or entities has or has had, either directly
or indirectly (a) an interest in any person or entity that (x) furnishes or
sells services or products which are furnished or sold or that are proposed to
be furnished or sold by the Company, or (y) purchases from or sells or furnishes
to the Company any goods or services, or (b) a beneficial interest in any
contract or agreement to which the Company is a party or by which it may be
bound or affected. Except as set forth in each Registration Statement and the
Prospectus under the caption "CERTAIN TRANSACTIONS" and "MANAGEMENT", there are
no existing or proposed agreements, arrangements, understandings or transactions
between or among the Company and any officer, director, or principal shareholder
of the Company or any partner, affiliate or associate of any of the foregoing
persons or entities.
(xxviii) The minute books of the Company made available to the
Underwriters contain a complete summary of all meetings and actions of the
directors and shareholders of the Company since the time of its incorporation
and reflect accurately and fairly in all respects all transactions referred to
in such minutes.
(xxix) No receiver or liquidator (or similar person) has been
appointed in respect of the Company or in respect of any part of the assets of
the Company; no resolution, order of any court, regulatory body, governmental
body or otherwise, or petition or application for an order, has been passed,
made or presented for the winding up of the Company or for the protection of the
Company from its creditors; and the Company has not, stopped or suspended
payments of its debts, become unable to pay its debts or otherwise become
insolvent.
10
10 TH&T DRAFT: 2/25/99
(b) Each Selling Stockholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on the First Closing Date
will have valid and unencumbered title to the Offered Securities to be delivered
by such Selling Stockholder on such Closing Date and full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody
Agreement, and to sell, assign, transfer and deliver the Offered Securities to
be delivered by such Selling Stockholder on such Closing Date hereunder; such
Selling Stockholder has duly executed and delivered this Agreement, the Power of
Attorney, and the Custody Agreement, and, in connection herewith and therewith,
such Selling Stockholder further represents, warrants and agrees that such
Selling Stockholder has deposited, or caused to be deposited, in custody with
[the Company], as Custodian (the "Custodian"), under the Custody Agreement,
certificates in negotiable form for the Offered Securities to be sold hereunder
by such Selling Stockholder, for the purpose of further delivery pursuant to
this Agreement; and upon the delivery of and payment for the Offered Securities
on the First Closing Date hereunder the several Underwriters will acquire valid
and unencumbered title to the Offered Securities to be delivered by such Selling
Stockholder on such Closing Date. Each of the persons appointed as such Selling
Stockholder's attorneys-in-fact pursuant to the Power of Attorney, acting alone,
is authorized to execute and deliver this Agreement and any certificate required
to be delivered by such Selling Stockholder pursuant to Section 6 on behalf of
such Selling Stockholder, to determine the price to be paid by the several
Underwriters to such Selling Stockholder as provided in Section 3, to authorize
the delivery of the Offered Securities to be sold by such Selling Stockholder
hereunder, to duly endorse (in blank or otherwise) the certificate or
certificates representing such Offered Securities or a stock power or powers
with respect thereto, to accept payment therefore, and otherwise to act on
behalf of such Selling Stockholder in connection with this Agreement, the Power
of Attorney and the Custody Agreement and the transactions contemplated hereby
and thereby.
(ii) Such Selling Stockholder has reviewed the Prospectus and
the Registration Statement, and the information regarding the Selling
Stockholder set forth under the caption "PRINCIPAL AND SELLING STOCKHOLDERS" is
complete and accurate.
(iii) To the knowledge of such Selling Stockholder, the
Registration Statement, on the Effective Date, and the Prospectus on the
Effective Date and on any Closing Date, do not, and will not, include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(iv) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial Registration
Statement conformed in all respects to the requirements of the Act and the Rules
and Regulations and did not include any untrue
11
11 TH&T DRAFT: 2/25/99
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did not include, or
will not include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this Agreement,
the Additional Registration Statement each conforms, and at the time of filing
of the Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Prospectus is included, each Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, and (D) no stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act. If
the Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the Prospectus
will conform in all respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The two
preceding sentences apply only to the extent that any statements in or omissions
from a Registration Statement or the Prospectus are based on written information
furnished to the Company by such Selling Stockholder specifically for use
therein.
(v) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling Stockholder and any
person that would give rise to a valid claim against such Selling Stockholder or
any Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(vi) The execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement, and the consummation
of the transactions herein and therein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the Selling
Stockholder or any of its properties, or any agreement or instrument to which
the Selling Stockholder is a party or by which the Selling Stockholder is bound
or to which any of the properties of the Selling Stockholder is subject.
12
12 TH&T DRAFT: 2/25/99
(vii) All consents, approvals, authorizations and orders
necessary for the execution and delivery by the Selling Stockholder of this
Agreement, the Power of Attorney and the Custody Agreement (assuming the making
of all filings required under Rule 424(b) or Rule 430A) have been obtained.
(viii) The Selling Stockholder has not taken and will not
take, directly or indirectly, any action designed to, or which has constituted,
or which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of the Securities of the Company and, other than as
permitted by the Act, the Selling Stockholder has not distributed, and will not
distribute, any prospectus or other offering material in connection with the
Offered Securities.
(ix) Neither the 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 (m) of the by-laws of the NASD),
any member firm of the NASD.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Stockholder agrees, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Stockholder, at a purchase price of $____ per share, that
number of Firm Securities (rounded up or down, as determined by Credit Suisse
First Boston Corporation ("CSFBC") in its discretion, in order to avoid
fractions) obtained by multiplying [_______] Firm Securities in the case of the
Company and the number of Firm Securities set forth opposite the name of such
Selling Stockholder in Schedule A hereto, in the case of a Selling Stockholder,
in each case by a fraction, the numerator of which is the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule B hereto
and the denominator of which is the total number of Firm Securities.
Certificates in negotiable form for the Offered Securities to be sold
by the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under the Custody Agreements. Each Selling Stockholder
agrees that the shares represented by the certificates held in custody for the
Selling Stockholders under such Custody Agreement are subject to the interests
of the Underwriters hereunder, that the arrangements made by the Selling
Stockholders for such custody are to that extent irrevocable, and that the
obligations of the Selling Stockholders hereunder shall not be terminated by
operation of law, whether by the death of any individual Selling Stockholder or
the occurrence of any other event. If any individual Selling Stockholder should
die, or if any other such event should occur, before the delivery of the Offered
Securities hereunder, certificates for such Offered Securities shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement as if such death
13
13 TH&T DRAFT: 2/25/99
or other event or termination had not occurred, regardless of whether or not the
Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, at the office of Xxxx and
Xxxx LLP, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000, against payment
of the purchase price in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to CSFBC at 10:00
A.M., New York time, on _________ [__], 1999, or at such other time not later
than seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "FIRST CLOSING DATE". The certificates
for the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for checking and packaging at the above office of Xxxx and Xxxx at
least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of Optional Securities specified
in such notice and the Underwriters agree, severally and not jointly, to
purchase such Optional Securities. Such Optional Securities shall be purchased
for the account of each Underwriter in the same proportion as the number of Firm
Securities set forth opposite such Underwriter's name bears to the total number
of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and
may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company and the Selling
Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, at the office of
Xxxx and Xxxx LLP, 0000 Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, XX 00000, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and
registered in such names as CSFBC
14
14 TH&T DRAFT: 2/25/99
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the above office of Xxxx and Xxxx
LLP at a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. Each
of the Company and, with respect to clauses (e), (i), (j) and (l) below only,
each Selling Stockholder, agrees with the several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CSFBC, subparagraph
(4) of Rule 424(b)) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the fifteenth
business day after the Effective date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on or prior
to the time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement as
filed or the related prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the Prospectus and will not effect
such amendment or supplementation without CSFBC's consent; and the Company will
also advise CSFBC promptly of the effectiveness of each Registration Statement
(if its Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration Statement
or the Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its best efforts
to prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) The Company will comply with the Act, the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the Rules and
Regulations so as to permit the completion of the distribution of the Offered
Securities as contemplated in this
15
15 TH&T DRAFT: 2/25/99
Agreement, each Registration Statement and the Prospectus. If, at any time when
a prospectus relating to the Offered Securities is required to be delivered
under the Act in connection with sales by any Underwriter or dealer, any event
occurs as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly notify
CSFBC of such event and will promptly prepare and file with the Commission, at
its own expense, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither CSFBC's
consent to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally available
to its securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration Statement
(or, if later, the Effective Date of the Additional Registration Statement)
which will satisfy the provisions of Section 11(a) of the Act. For the purpose
of the preceding sentence, "AVAILABILITY DATE" means the 45th day after the end
of the fourth fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last quarter
of the Company's fiscal year, "AVAILABILITY DATE" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement ((4) of which will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectus shall be so furnished on or prior to 3:00 P.M.,
New York time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial Registration
Statement. All other such documents shall be so furnished as soon as available.
The Company and the Selling Stockholders will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as required
for the distribution.
(g) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy
of its annual report to stockholders for such year; and the Company will furnish
to the Representatives, (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the
16
16 TH&T DRAFT: 2/25/99
Commission under the Exchange Act or mailed to stockholders, and (ii) from time
to time, such other information concerning the Company as CSFBC may reasonably
request.
(h) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not without the
prior written consent of CSFBC: (i) offer, sell, contract to sell, pledge,
transfer, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or otherwise
dispose of, directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any shares of Securities or securities
convertible into or exchangeable or exercisable for any shares of Securities, or
publicly disclose the intention to make any such offer, sale, pledge, transfer
or other disposition or filing, except issuances of Securities pursuant to the
conversion or exchange of convertible or exchangeable securities or the exercise
of warrants or options, in each case outstanding on the date hereof, grants of
employee stock options pursuant to the terms of a plan in effect on the date
hereof, or issuances of Securities pursuant to the exercise of such options.
Prior to the First Closing, the Company will obtain and provide to counsel for
the Underwriters the executed Lock-up Agreements (as defined below).
(i) The Company and each Selling Stockholder agree with the
several Underwriters that the Company and such Selling Stockholder will pay all
expenses incident to the performance of the obligations of the Company and such
Selling Stockholder, as the case may be, under this Agreement, including,
without limitation, (i) for any filing fees and other expenses (including fees
and disbursements of counsel) in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC designates and
the printing of memoranda relating thereto; (ii) the filing fee incident to, and
the reasonable fees and disbursements of counsel to the Underwriters in
connection with, the review by the NASD of the Offered Securities; (iii) for any
travel expenses of the Company's officers and employees and any other expenses
of the Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities; (iv) any transfer taxes on the sale by the
Selling Stockholders of the Offered Securities to the Underwriters; and (v)
expenses incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriters.
(j) Each Selling Stockholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group, on or prior to the First Closing Date, a
properly completed and executed United States Treasury Department Form W9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
(k) The Company shall apply the net proceeds of its sale of
the Offered Securities as set forth in the Prospectus.
17
17 TH&T DRAFT: 2/25/99
(l) Neither the Company nor any Selling Stockholder will take,
directly or indirectly, any action designed to cause or result in, or that has
constituted or might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company, including the
Securities.
(m) If at any time during the 25-day period after a
Registration Statement becomes effective or during the period prior to any
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in the Representatives' reasonable
judgment the market price of the Securities has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus), the Company will,
after notice from the Representatives advising the Company to the effect set
forth above, forthwith prepare, consult with the Representatives concerning the
substance of, and disseminate a press release or other public statement
reasonably satisfactory to the Representatives, responding to or commenting on
such rumor, publication or event.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received on each Closing
Date a letter from KPMG Peat Marwick LLP, in form and substance satisfactory to
the Representatives in their sole judgment, dated such Closing Date, confirming
that they are independent certified public accountants with respect to the
Company within the meaning of the Act and the applicable published Rules and
Regulations; and, based upon the procedures described in such letter delivered
to you concurrently with the execution of this Agreement (herein called the
"ORIGINAL LETTER"), but carried out to a date not more than three (3) business
days prior to such Closing Date: (i) confirming, to the extent true, that the
statements and conclusions set forth in the Original Letter are accurate as of
such Closing Date, and (ii) setting forth any revisions and additions to the
statements and conclusions set forth in the Original Letter which are necessary
to reflect any changes in the facts described in the Original Letter since the
date of such letter, or to reflect the availability of more recent financial
statements, data or information. The letter shall not disclose any change in the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company from that set forth in the Registration Statement or
Prospectus, which, in the sole judgment of the Representatives, is material and
adverse and that makes it, in the sole judgment of the Representatives,
impracticable or inadvisable to proceed with the initial public offering of the
Offered Securities as contemplated by the Prospectus and this Agreement. The
Original Letter from KPMG
18
18 TH&T DRAFT: 2/25/99
Peat Marwick LLP shall be addressed to or for the use of the Underwriters in
form and substance satisfactory to the Representatives in their sole judgment,
and shall: (i) represent that KPMG Peat Marwick LLP are independent certified
public accountants with respect to the Company within the meaning of the Act and
the applicable published Rules and Regulations, (ii) set forth their opinion
with respect to their examination of the consolidated balance sheet of the
Company as of December 31, 1998 and related consolidated statements of
operations, stockholders' equity, and cash flows for the twelve (12) months
ended December 31, 1998, and (iii) address such other matters agreed upon by
KPMG Peat Marwick LLP and the Representatives. In addition, the Representatives
shall have received from KPMG Peat Marwick LLP a letter addressed to the Company
and made available to the Representatives for the use of the Underwriters
stating that their review of the Company's system of internal accounting
controls, to the extent they deemed necessary in establishing the scope of their
examination of the Company's consolidated financial statements as of December
31, 1998, did not disclose any weaknesses in internal controls that they
considered to be material weaknesses.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York time, on
the date of this Agreement or such later date as shall have been consented to by
CSFBC. If the Effective Time of the Additional Registration Statement (if any)
is not prior to the execution and delivery of this Agreement, such Effective
Time shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later date as
shall have been consented to by CSFBC. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this Agreement,
the Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, the Selling Stockholders or the
Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or
event involving a prospective change in the condition (financial or other),
business, properties or results of operations of the Company which, in the
judgment of a majority in interest of the Underwriters including the
Representatives, is material and adverse and makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "NATIONALLY RECOGNIZED STATISTICAL RATING
ORGANIZATION" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading, of
19
19 TH&T DRAFT: 2/25/99
such rating); (iii) any suspension or limitation of trading in securities
generally including, without limitation, the Offered Securities, on the Nasdaq
National Market, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of the Company on any exchange or
in the over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxx and Xxxx LLP, counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of Delaware,
with corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to be so qualified would have a
Material Adverse Effect;
(ii) The Offered Securities delivered on such Closing
Date and all other outstanding shares of capital stock of the Company have been
duly authorized; all outstanding shares of capital stock of the Company are,
and, when the Offered Securities have been delivered and paid for in accordance
with this Agreement on each Closing Date, such Offered Securities will have
been, validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus; the Company has authorized and
outstanding capital stock as set forth under the caption "CAPITALIZATION" in the
Prospectus as of the date specified therein; the certificates for the Offered
Securities, assuming they are in the form filed with the Commission, are in due
and proper form; and no stockholder of the Company has any preemptive rights
with respect to the Securities pursuant to any statute, the Company's
Certificate of Incorporation, by-laws, or, to such counsel's knowledge, any
agreement with the Company;
(iii) Except as described in the Prospectus, there
are no contracts, agreements or understandings known to such counsel between the
Company and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act; and all holders
of securities of the Company having rights known to such counsel to
20
20 TH&T DRAFT: 2/25/99
registration of securities of the Company, because of the filing of the
Registration Statement by the Company have, with respect to the offering
contemplated thereby, waived such rights;
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is required to be
obtained or made by the Company or any Selling Stockholder for the consummation
of the transactions contemplated by this Agreement or the Custody Agreement in
connection with the sale of the Offered Securities, except such as have been
obtained and made under the Act and such as may be required under state
securities laws;
(v) The execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement and the consummation
of the transactions herein and therein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any of its properties,
or any agreement or instrument to which the Company is a party or by which the
Company is bound or to which any of the properties of the Company is subject, or
the charter or by-laws of the Company;
(vi) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became effective under
the Act as of the date and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the knowledge of such counsel after due
inquiry, no stop order suspending the effectiveness of a Registration Statement
or any part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act, and each
Registration Statement and the Prospectus, and each amendment or supplement
thereto, as of their respective effective or issue dates, complied as to form in
all material respects with the requirements of the Act and the Rules and
Regulations; such counsel have no reason to believe that any part of a
Registration Statement or any amendment thereto, as of its effective date or as
of such Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
amendment or supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; and the
descriptions in the Registration Statements and Prospectus of statutes, legal
and governmental proceedings and contracts and other documents are accurate in
all material respects and fairly present the information required to be shown;
it being understood that such counsel need express no
21
21 TH&T DRAFT: 2/25/99
opinion as to the financial statements or other financial data contained in the
Registration Statements or the Prospectus;
(vii) The Company has full legal right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody
Agreement; each of this Agreement, the Power of Attorney and the Custody
Agreement have been duly authorized, executed and delivered by the Company; and
the Power of Attorney and Custody Agreement constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(viii) All of the Offered Securities have been duly
authorized and accepted for quotation on the Nasdaq National Market, subject to
official notice of issuance;
(ix) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be, an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(x) Such counsel does not know of any legal or
governmental proceedings or investigations pending or threatened to which the
Company is a party or to which the property of the Company is subject that are
required to be described in any Registration Statement or the Prospectus and are
not described therein or any statutes, regulations, contracts or other documents
that are required to be described in any Registration Statement or the
Prospectus or to be filed as exhibits to any Registration Statement that are not
described therein or filed as required; and
(xi) Except as described in the Prospectus, to the
knowledge of such counsel, there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or other securities obligating the
Company to issue any shares of its capital stock or any securities convertible
or exchangeable into or evidencing the right to purchase or subscribe for any
shares of such capital stock. The descriptions of the Company's stock option,
stock bonus and other stock plans or arrangements, and the options or other
rights granted and exercised thereunder, set forth or incorporated by reference
in the Prospectus, accurately and fairly present the information required to be
shown with respect to such plans, arrangements, options and rights.
(e) The Representatives shall have received the opinion
contemplated in the Power of Attorney dated the First Closing Date, of Xxxx and
Xxxx LLP, counsel for the Selling Stockholders, to the effect that:
22
22 TH&T DRAFT: 2/25/99
(i) Each Selling Stockholder had valid and
unencumbered title to the Offered Securities delivered by such Selling
Stockholder on such Closing Date and had full right, power and authority to
sell, assign, transfer and deliver the Offered Securities delivered by such
Selling Stockholder on such Closing Date hereunder; and the several Underwriters
have acquired valid and unencumbered title to the Offered Securities purchased
by them from the Selling Stockholders on such Closing Date hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court is required to be
obtained or made by any Selling Stockholder for the consummation of the
transactions contemplated by the Power of Attorney, Custody Agreement or this
Agreement in connection with the sale of the Offered Securities sold by the
Selling Stockholders, except such as have been obtained and made under the Act
and such as may be required under state securities laws;
(iii) The execution, delivery and performance of the
Power of Attorney, the Custody Agreement and this Agreement and the consummation
of the transactions therein and herein contemplated will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over any Selling Stockholder or any of its
properties or any agreement or instrument to which any Selling Stockholder is a
party or by which any Selling Stockholder is bound or to which any of the
properties of any Selling Stockholder is subject; and
(iv) This Agreement, the Power of Attorney and the
Custody Agreement with respect to each Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and constitute
valid and legally binding obligations of each such Selling Stockholder,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(f) The Representatives shall have received from Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP, counsel for the Underwriters, such opinion or
opinions, dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other related matters as the
Representatives may require, and the Selling Stockholders and the Company shall
have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters. In rendering such opinion, Xxxxx,
Xxxxxxx & Xxxxxxxxx, LLP may rely as to the incorporation of the Company upon
the opinion of Xxxx and Xxxx LLP referred to above.
23
23 TH&T DRAFT: 2/25/99
(g) The Representatives shall have received from the Selling
Stockholders, each person who is a director or executive officer of the Company,
and from all other holders of shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, an agreement
dated on or before the date of this Agreement (collectively, the "Lock-up
Agreements"), to the effect that, for a period of 180 days after the initial
public offering of Securities pursuant to this Agreement, such person will not
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Securities or securities convertible into or
exchangeable or exercisable for any shares of Securities, or publicly disclose
the intention to make any such offer, sale, pledge, or disposal, without the
prior written consent of CSFBC.
(h) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers shall
state that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of subparagraphs (1)
and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the dates of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company; except as set forth in or contemplated by the Prospectus or as
described in such certificate, such officer has carefully examined each
Registration Statement and the Prospectus and, in his opinion, as of the
Effective Date of the Initial Registration Statement (and, if applicable, the
Additional Registration Statement), the statements contained in the Registration
Statement and the Prospectus were true and correct, and such Registration
Statement and Prospectus did not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading, and since the
Effective Date of the Registration Statement, no event has occurred which should
have been set forth in a supplement to or an amendment of the Prospectus which
has not been so set forth in such supplement or amendment; and
If any of the conditions hereinabove provided for in this
Section 6 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company of such termination in writing
or by telegram at or prior to the First Closing Date and each Optional Closing
Date.
24
24 TH&T DRAFT: 2/25/99
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably requests. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) Subject to the provisions of
paragraph (f) of this Section 7, the Company and the Selling Stockholders will
jointly and severally indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person or entity, if any, who controls
such Underwriter within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and the Selling
Stockholders will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the Act, and
each Selling Stockholder against any losses, claims, damages or liabilities to
which the Company or such Selling Stockholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically
25
25 TH&T DRAFT: 2/25/99
for use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company and each Selling Stockholder in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: [(i) the table under
the first paragraph under the caption "UNDERWRITING," (ii) the concession and
reallowance figures appearing in the fourth paragraph under the caption
"UNDERWRITING," (iii) the information contained in the sixth paragraph under the
caption "UNDERWRITING" with respect to the number of shares reserved by the
Underwriters' for sale at the initial public offering price of Common Stock for
employees, directors and certain other persons associated with CareerBuilder,
(iv) the information contained in the ninth paragraph under the caption
"UNDERWRITING" with respect to [any stockholder/underwriter affiliations], and
(v) the information contained in the tenth paragraph under the caption
"UNDERWRITING" with respect to the representatives' engaging in over-allotments,
stabilizing transactions, syndicate covering transactions, and penalty bids.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative
26
26 TH&T DRAFT: 2/25/99
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) above 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 Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Stockholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Selling
Stockholders under this Section shall be in addition to any liability which the
Company and the Selling Stockholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
(f) The aggregate liability of each Selling Stockholder under
the indemnity agreements contained in the provisions of this Section 7 hereof
shall be limited
27
27 TH&T DRAFT: 2/25/99
to an amount equal to the lesser of (i) the initial public offering price of the
Offered Securities sold by such Selling Stockholder to the Underwriters and (ii)
that percentage of the total amount of the losses, claims, damages and
liabilities obtained by dividing the total number of Offered Securities sold by
such Selling Stockholder hereunder by the total number of shares of Securities
sold hereunder. The Underwriters agree that each Selling Stockholder shall have
no liability under Section 7(a) to indemnify any Underwriter with respect to any
amount unless the Underwriters shall have first requested payment of such amount
by the Company and the Company shall have failed, within fourteen days, to pay
the requested amount to the Underwriters. The Company and each Selling
Stockholders may agree, as between themselves and without limiting the rights of
the Underwriters under this Agreement, as to the respective amounts of such
liability for which they each shall be responsible.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company and the Selling Stockholders for
the purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "UNDERWRITER" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective
28
28 TH&T DRAFT: 2/25/99
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company and the
Selling Stockholders shall remain responsible for the expenses to be paid or
reimbursed by them pursuant to Section 5 and the respective obligations of the
Company, the Selling Stockholders, and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(c),
the Company and the Selling Stockholders will, jointly and severally, reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and will
be mailed, delivered or telegraphed and confirmed as follows:
If sent to the Underwriters and/or the Representatives:
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Attention: Investment Banking Department - Transactions Advisory Group
If sent to the Company:
CareerBuilder, Inc.,
00000 Xxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: President
29
29 TH&T DRAFT: 2/25/99
If sent to the Selling Stockholders; or any of them:
[INSERT NAME OF SELLING STOCKHOLDERS' REPRESENTATIVE]
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters. [POA NAME] will act for the
Selling Stockholders in connection with such transactions, and any action under
or in respect of this Agreement taken by [POA NAME] will be binding upon the
Selling Stockholders.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law and Venue. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
30
30 TH&T DRAFT: 2/25/99
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, the Company and the several Underwriters in accordance
with its terms.
Very truly yours,
---------------------------------------------
[INSERT NAME OR NAMES OF SELLING STOCKHOLDERS]
CAREERBUILDER, INC.
By:
------------------------------------------
Name: Xxxxxx X. XxXxxxxx
Title: President
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX & XXXXX LLC
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
Acting on behalf of themselves
and as the Representatives of
the several Underwriters.
BY: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
------------------------
Name:
Title:
31
31 TH&T DRAFT: 2/25/99
SCHEDULE A
NUMBER OF
FIRM
SECURITIES
SELLING STOCKHOLDER TO BE SOLD
------------------- ----------
----------
Total
==========
32
32 TH&T DRAFT: 2/25/99
SCHEDULE B
NUMBER OF
FIRM SECURITIES
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston Corporation
Xxxxxxxxx & Xxxxx LLC
BancBoston Xxxxxxxxx Xxxxxxxx Inc.
Friedman, Billings, Xxxxxx & Co., Inc.
--------------
Total
==============
