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EXHIBIT 1.1
VERIO INC.
5,000,000 Shares
Common Stock
($0.001 par value)
UNDERWRITING AGREEMENT
New York, New York
, 1998
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
As Representatives of the several Underwriters,
c/o Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Verio Inc., a Delaware corporation (the "Company"), proposes
to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, 5,000,000 shares of Common Stock, $0.001 par value ("Common
Stock") of the Company (the "Underwritten Securities"). The Company also
proposes to grant to the Underwriters an option to purchase up to 750,000
additional shares of Common Stock to cover over-allotments (the "Option
Securities"; the Option Securities, together with the Underwritten Securities,
being hereinafter called the "Securities"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. The use of the neuter in this Agreement shall include the
feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with each Underwriter as set forth below in this
Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 333-47099) on Form S-1, including a
related preliminary prospectus,
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for the registration under the Act of the offering and sale of the
Securities. The Company may have filed one or more amendments thereto,
including a related preliminary prospectus, each of which has previously
been furnished to you. The Company will next file with the Commission
either (1) prior to the Effective Date of such registration statement, a
further amendment to such registration statement (including the form of
final prospectus) or (2) after the Effective Date of such registration
statement, a final prospectus in accordance with Rules 430A and 424(b). In
the case of clause (2), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus, shall
contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable
requirements of the Act and the rules thereunder; on the Effective Date
and at the Execution Time, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date and any
settlement date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement, or the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished herein or in writing to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Prospectus
(or any supplement thereto).
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(c) The subsidiaries of the Company listed on Schedule III
hereto (also referred to herein as the "Subsidiaries") are the only
subsidiaries of the Company that constitute "significant subsidiaries"
within the meaning of Rule 1-02(w) of Regulation S-X under the Act. Each
of the Company and the Subsidiaries has been duly organized or
incorporated, as the case may be, and is validly existing and in good
standing under the laws of its jurisdiction of organization or
incorporation, with all requisite power and authority under such laws (a)
to own, lease and operate their respective properties and to conduct their
respective businesses as now conducted and as described in the Prospectus,
and (b) to enter into, deliver, incur and perform their respective
obligations under this Agreement, except, in the case of the foregoing
subclause (a) for authorizations, approvals, orders, leases, certificates
and permits, the failure of which to possess could not reasonably be
expected to have a Material Adverse Effect (as defined below); and are all
duly qualified to do business as foreign partnerships or corporations in
good standing in all other jurisdictions where the ownership or leasing of
their respective properties or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified
could not reasonably be expected to have a material adverse effect (i) on
the business, condition (financial or otherwise), results of operations,
business affairs or business prospects of the Company and the Subsidiaries
taken as a whole or (ii) on the ability of the Company to perform any of
its obligations under this Agreement or to consummate any of the
transactions contemplated hereby (a "Material Adverse Effect"). The
Company has no ISP affiliates (other than the Subsidiaries) that would
individually constitute a "significant subsidiary" of the Company within
the meaning of Rule 1-02(w) of Regulation S-X under the Securities Act, if
any such ISP affiliate were a subsidiary of the Company.
(d) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are fully
paid and nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock of the Subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set
forth in the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus;
the outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the Securities
being sold hereunder by the Company have been duly and validly authorized,
and, when issued and delivered to and paid for by the Underwriters
pursuant to this Agreement, will be fully paid and nonassessable; the
Securities being sold hereunder by the Company are duly listed, and
admitted and authorized for trading, subject to official
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notice of issuance and evidence of satisfactory distribution, on the
Nasdaq National Market; the certificates for the Securities are in valid
and sufficient form; the holders of outstanding shares of capital stock of
the Company are not entitled to preemptive or other rights to subscribe
for the Securities; and, except as set forth in the Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(f) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes the valid and binding obligation
of the Company, enforceable against the Company in accordance with the
terms hereof, subject to (a) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, (b) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and (c)
the discretion of the court before which any proceeding therefor may be
brought (clauses (a), (b) and (c) being referred to herein as the
"Enforceability Limitations").
(g) No consent, waiver, authorization, approval, license,
qualification or order of, or filing or registration with, any court or
governmental or regulatory agency or body, domestic or foreign, is
required in connection with the transactions contemplated herein, except
(A) such as have been obtained under the Act, (B) as may be required by
the National Association of Securities Dealers, Inc. (the "NASD") and (C)
as may be required by state securities or "blue sky" laws in connection
with the purchase and distribution of the Securities by the Underwriters
in the manner contemplated herein and in the Prospectus.
(h) The issuance, sale and delivery of the Securities, the
execution, delivery and performance by the Company of this Agreement and
the consummation by the Company of the transactions contemplated hereby
and the compliance by the Company with the terms of the foregoing do not,
and, at the Closing Date, will not conflict with or constitute or result
in a breach or violation by the Company or any of the Subsidiaries of (A)
any of the terms or provisions of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default)
by any of the Company or the Subsidiaries or give rise to any right to
accelerate the maturity or require the prepayment of any indebtedness
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Subsidiaries
under any contract, indenture, mortgage, deed of trust, loan agreement,
note, lease, license, franchise agreement, authorization, permit,
certificate or other agreement or document to which any of the Company or
the Subsidiaries is a party or by which any of them may be bound, or to
which any of them or any of their respective assets or businesses is
subject (collectively, "Contracts") (and the Company has no knowledge of
any conflict, breach or
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violation of such terms or provisions or of any such default, in any such
case, which has occurred or will so result), (B) the articles or by-laws
(each, an "Organizational Document") of each of the Company and the
Subsidiaries or (C) any law, statute, rule or regulation, or any judgment,
decree or order, in any such case, of any domestic or foreign court or
governmental or regulatory agency or other body having jurisdiction over
the Company or any of the Subsidiaries or any of their respective
properties or assets. Schedule IV hereto lists each Contract with respect
to which any conflict, breach or violation of the terms or provisions
thereof or any default with respect thereto could have a Material Adverse
Effect (each such Contract being referred to herein as a "Material
Contract").
(i) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(j) The audited consolidated financial statements included in
the Prospectus and Registration Statement, including the notes thereto,
respectively present fairly the financial position of each of the Company
and its consolidated subsidiaries, On-Ramp Technologies, Inc., Global
Enterprise Services-Network Division, Compute Intensive, Inc.,
NorthWestNet, Inc., Aimnet Corporation, West Coast Online, Inc., Xxxxx
Internet Services, Inc., ATMnet, Inc., Global Internet Network Services,
Inc., Pennsylvania Research Partnership Network, Monumental Network
Systems, Inc., Internet Servers, Inc., NSNet, Inc., AccessOne, Inc.,
STARnet, L.L.C., Computing Engineers Inc. and LI Net, Inc., at the dates
indicated, and the statement of operations, stockholders' deficit/equity
and cash flows of each of such persons and, where applicable such persons'
consolidated subsidiaries for the periods have been prepared in conformity
with United States generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
selected financial data and the summary financial information included in
the Prospectus and Registration Statement present fairly the information
shown therein and have been compiled on a basis consistent with that of
the financial statements of the Company and its consolidated subsidiaries
included in the Prospectus and Registration Statement. KPMG Peat Marwick
LLP, which has examined such financial statements as set forth in its
report included in the Prospectus and Registration Statement, is an
independent public accounting firm with respect to each of such persons
and, where applicable, such person's Subsidiaries within the meaning of
Regulation S-X under the Act. Except as disclosed in the Prospectus and
Registration Statement, the pro forma financial information relating to
the Company and its Subsidiaries and the related notes thereto included in
the Prospectus and Registration Statement present fairly the information
shown therein, have been prepared in all material respects in accordance
with the Commission's rules and guidelines with respect to pro forma
financial adjustments and have been properly computed on the bases
described therein, and the assumptions
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used in the preparation thereof are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and
circumstances referred to therein.
(k) Since the respective dates as of which information is
given in the Prospectus, except as otherwise specifically stated therein,
there has been no (A) material adverse change in the business, condition
(financial or otherwise), results of operations, business affairs or
business prospects of the Company and the Subsidiaries taken as a whole,
whether or not arising in the ordinary course of business (a "Material
Adverse Change"), (B) transaction entered into by any of the Company or
the Subsidiaries, other than in the ordinary course of business, that is
material to the Company and the Subsidiaries taken as a whole or (C)
dividend or distribution of any kind declared, paid or made by the Company
on its capital stock.
(l) None of the Company nor the Subsidiaries is (A) in
violation of its respective Organizational Documents, (B) in default (or,
with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any Contract or (C) in violation of any law,
statute, judgment, decree, order, rule or regulation of any domestic or
foreign court with jurisdiction over the Company or the Subsidiaries or
any of their respective assets or properties, or other governmental or
regulatory authority, agency or other body, other than, in the case of
clause (B) or (C), such defaults or violations which could not,
individually or in the aggregate, reasonably be expected to have or result
in a Material Adverse Effect; and any real property and buildings held
under lease by the Company or the Subsidiaries are held by the Company or
such Subsidiary, as the case may be, under valid, subsisting and
enforceable leases with such exceptions which could not, individually or
in the aggregate, reasonably be expected to have or result in a Material
Adverse Effect.
(m) Except as set forth in the Prospectus, each of the Company
and the Subsidiaries owns or possesses, or can acquire on reasonable
terms, adequate patents, patent rights, licenses, trademarks, service
marks, trade names, copyrights and know-how (including trade secrets and
other proprietary or confidential information, systems or procedures)
(collectively, "intellectual property") necessary to conduct the business
now or proposed to be operated by it as described in the Prospectus,
except where the failure to own, possess or have the ability to acquire
any such intellectual property could not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect; and
none of the Company nor the Subsidiaries has received any notice of
infringement of or conflict with (nor knows of any such infringement of or
conflict with) asserted rights of others with respect to any of such
intellectual property.
(n) Each of the Company and the Subsidiaries has obtained all
material consents, approvals, orders, certificates, licenses, permits,
franchises and other authorizations
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(collectively, the "Licenses") of and from, and has made all declarations
and filings with, all governmental and regulatory authorities, all
self-regulatory organizations and all courts and other tribunals necessary
to own, lease, license and use its properties and assets and to conduct
its businesses in the manner described in the Prospectus (exclusive of any
supplement thereto). None of the Company or the Subsidiaries has received
any notice of proceedings relating to the revocation or modification of,
or denial of any application for, any License which, if the subject of any
unfavorable decision, ruling or finding, could, singly or in the
aggregate, reasonably be expected to have or result in a Material Adverse
Effect; and no event has occurred which allows, or after notice or lapse
of time, or both, would allow, revocation or termination thereof or result
in any other material impairment of the rights of the holder of any such
License, except where such revocation or termination could not, singly or
in the aggregate, reasonably be expected to have or result in a Material
Adverse Effect; and the Licenses referred to above place no restrictions
on the Company or any of the Subsidiaries that are not described in the
Prospectus (exclusive of any supplement thereto), except where such
restrictions could not, singly or in the aggregate, reasonably be expected
to have or result in a Material Adverse Effect.
(o) There is no legal action, suit, proceeding, inquiry or
investigation before or by any court or governmental body or agency,
domestic or foreign, now pending or, to the best knowledge of the Company,
threatened against the Company or any of the Subsidiaries or any of their
respective properties that could singly or in the aggregate, reasonably be
expected to have or result in a Material Adverse Effect, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(p) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns, and
has paid all taxes shown as due thereon; and no tax deficiency has been
asserted against any of the Company or the Subsidiaries.
(q) Except as described in the Prospectus, including the
financial statements and notes thereto included therein, each of the
Company and the Subsidiaries has good and marketable title to all real and
personal property described in the Prospectus as being owned by it and
good and marketable title to a leasehold estate in the real and personal
property described in the Prospectus as being leased by it, free and clear
of all liens, charges, encumbrances or restrictions, except to the extent
the failure to have such title or the existence of such liens, charges,
encumbrances or restrictions could not, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse Effect.
(r) None of the Company or any of the Subsidiaries is and,
after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, will
not be an "investment company" or a company
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"controlled by" an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended, and the rules and regulations
thereunder.
(s) None of the Company nor any of the Subsidiaries nor any of
their respective directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or which might reasonably be
expected, to cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(t) No strike, labor problem, dispute, slowdown, work stoppage
or disturbance with the employees of the Company or any of the
Subsidiaries exists or, to the best knowledge of the Company, is
threatened, which could, individually or in the aggregate, reasonably be
expected to have or result in a Material Adverse Effect.
(u) Each of the Company and the Subsidiaries has insurance in
such amounts and covering such risks and liabilities as are in accordance
with normal industry practice.
(v) The statistical and market-related data included in the
Prospectus are based on or derived from independent sources which the
Company believes to be reliable and accurate in all material respects or
represent the Company's good faith estimates that are made on the basis of
data derived from such sources.
(w) The Company is, and immediately after the Closing Date
will be, Solvent. As used herein, the term "Solvent" means, with respect
to the Company on a particular date, that on such date (A) the fair market
value of the assets of the Company exceeds its respective liabilities
(including without limitation, stated liabilities and identified
contingent liabilities), (B) the present fair salable value of the assets
of the Company will exceed its respective probable liabilities on its
debts (including without limitation, stated liabilities and identified
contingent liabilities), (C) the fair market value of the Company's total
assets exceeds its total liabilities, including identified contingent
liabilities, by an amount at least equal to the total par value of its
common stock both immediately prior to and after the Offering, (D) the
Company is and will be able to pay its debts (including without
limitation, stated liabilities and identified contingent liabilities) as
such debts mature and (E) the Company will not have unreasonably small
capital with which to conduct its present and anticipated business.
(x) Except as described in the Prospectus (exclusive of any
supplement thereto) or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect (A) to the
Company's knowledge, each of the Company and the Subsidiaries is in
compliance with and not subject to any known liability under applicable
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Environmental Laws (as defined below), (B) to the Company's knowledge,
each of the Company and the Subsidiaries (i) has made all filings and
provided all notices required under any applicable Environmental Law, and
(ii) has, and is in compliance with, all Permits required under any
applicable Environmental Laws, and each of them is in full force and
effect, (C) to the Company's knowledge, there is no civil, criminal or
administrative action, or, investigation, notice or demand letter or
request for information pending or threatened against the Company or any
of the Subsidiaries under any Environmental Law, and (D) to the Company's
knowledge, no lien, charge, encumbrance or restriction has been recorded
under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by the Company or any
Subsidiary.
For purposes of this Agreement, "Environmental Laws" means the common law
and all applicable federal, state and local laws or regulations relating
to the protection of the environment, including, without limitation, laws
relating to emissions, discharges, releases or threatened releases of
"hazardous substances," as defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended.
(y) Except as described in the Prospectus (exclusive of any
supplement thereto), none of the Company nor any of the Subsidiaries has
incurred any liability for any prohibited transaction or funding
deficiency or any complete or partial withdrawal liability with respect to
any pension, profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), to which the
Company or the Subsidiaries makes or ever has made a contribution and in
which any employee of the Company or any such Subsidiary is or has ever
been a participant, which, individually in the aggregate, could reasonably
be expected to have or result in a Material Adverse Effect. With respect
to such plans, each of the Company and the Subsidiaries is in compliance
in all respects with all applicable provisions of ERISA, except where the
failure to so comply could not, individually or in the aggregate,
reasonably be expected to have or a result in a Material Adverse Effect.
(z) Each of the Company and the Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(aa) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution
and delivery of this Agreement or the issuance by the Company or sale by
the Company of the Securities.
(bb) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such subsidiary's capital stock, from
repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's property or assets
to the Company or any other subsidiary of the Company, except as described
in or contemplated by the Prospectus.
(cc) Except as disclosed in the Registration Statement and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of Xxxxxxx Xxxxx Barney
Holdings Inc. and (ii) does not intend to use any of the proceeds from the
sale of the Securities hereunder to repay any outstanding debt owed to any
affiliate of Xxxxxxx Xxxxx Xxxxxx Holdings Inc.
(dd) The Company is in compliance with the Commission's staff
legal bulletin No. 5 dated October 8, 1997 related to Year 2000
compliance.
(ee) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to Xxxxxx Xxxxxx & Xxxxxxx, counsel for
the Underwriters ("Counsel for the Underwriters") pursuant to the terms of
this Agreement shall be deemed a representation and warranty by the
Company to the Initial Purchasers as to the matters covered thereby.
2. Purchase and Sale. (a) Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
$ per share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not jointly, up
to 750,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time (but not more than once) on or before the 30th day after the date of
the Prospectus upon written or telephonic notice by the Representatives to the
Company setting forth the number of shares of
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the Option Securities as to which the several Underwriters are exercising the
option and the settlement date. Delivery of certificates for the shares of
Option Securities by the Company and payment therefor to the Company shall be
made as provided in Section 3 hereof. The number of shares of the Option
Securities to be purchased by each Underwriter shall be the same percentage of
the total number of shares of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
, 1998, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement between the Representatives
and the Company or as provided in Section 9 hereof (such date and time of
delivery and payment for the Securities being herein called the "Closing Date").
Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the aggregate purchase price of the
Securities being sold by the Company to or upon the order of the Company by wire
transfer payable in same-day funds to the account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Option Securities (at the expense of the Company) to the Representatives on
the date specified by the Representatives (which shall be within three Business
Days after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date for
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
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5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to
be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company
will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become
effective, (2) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Prospectus or for any additional information, (5) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution or
threatening of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or of
the institution or threatening of any proceeding for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Prospectus to comply with the Act or the rules thereunder, the
Company promptly will (1) notify the Representatives of any such event;
(2) prepare and file with the Commission, subject to the second
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sentence of paragraph (i)(a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
Counsel for the Underwriters signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without exhibits thereto) and, so
long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and
the Prospectus and any supplement thereto as the Representatives may
reasonably request.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may designate and will maintain
such qualifications in effect so long as required for the distribution
of the Securities; provided, however, that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising out
of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of
Xxxxxxx Xxxxx Xxxxxx, for a period of six months following the
Execution Time, offer, sell or contract to sell, or otherwise dispose
of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly
or indirectly, or announce the offering of, any other shares of Common
Stock or any securities convertible into, or exchangeable for, shares
of Common Stock [SUBJECT TO CERTAIN EXCEPTIONS TO BE DISCUSSED IN
ADDITION TO THE FOLLOWING PROVISO]; provided, however, that the Company
may issue and sell Common Stock pursuant to any employee stock option
plan, stock ownership plan or dividend reinvestment plan of the Company
in effect at the Execution Time and the Company may issue Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time.
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(g) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation, printing or reproduction
and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary
Prospectus, the Prospectus, and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus,
the Prospectus, and all amendments or supplements to any of them, as
may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with
the original issuance and sale of the Securities; (iv) the printing (or
reproduction) and delivery of this Agreement, any blue sky memorandum
and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing
of the Securities on the Nasdaq National Market; (vi) any registration
or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing
fees and the reasonable fees and expenses of Counsel for the
Underwriters relating to such registration and qualification); (vii)
any filings required to be made with the National Association of
Securities Dealers, Inc. (including filing fees and the reasonable fees
and expenses of Counsel for the Underwriters relating to such filings);
(viii) the transportation and other expenses incurred by or on behalf
of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (x) all
other costs and expenses incident to the performance by the Company of
its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
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(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time on the date of
determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or (ii)
9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, dated
the Closing Date and addressed to the Representatives, in the form set
forth below and otherwise reasonably satisfactory to the
Representatives and Counsel for the Underwriters, to the effect that:
(i) the Company has been duly incorporated and is
validly existing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its
assets and properties and conduct its business as described in
the Prospectus and to enter into and perform its obligations
under this Agreement; to the best knowledge of such counsel
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect;
(ii) each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to the best knowledge of such counsel is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership
or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing
individually or in the aggregate would not result in a
Material Adverse Effect; all of the issued and outstanding
capital stock of each of the Subsidiaries has been duly
authorized and validly issued, is fully paid and
non-assessable and, to such counsel's knowledge and
information, except as set
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forth in the Final Memorandum under the caption "Business --
Verio Group Network," is owned by the Company directly, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity;
(iii) (A) the Company's authorized, issued and
outstanding equity capitalization is as set forth in the
Prospectus; (B) the capital stock of the Company conforms in
all material respects to the description thereof contained in
the Prospectus; (C) the outstanding shares of Common Stock
have been duly and validly authorized and issued and are fully
paid and nonassessable; (D) the Securities being sold
hereunder by the Company have been duly and validly
authorized, and, when issued and delivered to and paid for by
the Underwriters pursuant to this Agreement, will be fully
paid and nonassessable; (E) the Securities being sold
hereunder by the Company are duly listed, and admitted and
authorized for trading, subject to official notice of
issuance, on the Nasdaq National Market; (F) the certificates
for the Securities are in valid and sufficient form; (G) the
holders of outstanding shares of capital stock of the Company
are not entitled to statutory or, to the knowledge of such
counsel, contractual preemptive or other rights to subscribe
for the Securities; and (H) except as set forth in the
Prospectus, to the knowledge of such counsel, no options,
warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations
into or exchange any securities for, shares of capital stock
of or ownership interests in the Company are outstanding;
(iv) the Company has the requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement; and this Agreement has been duly
authorized, executed and delivered by the Company;
(v) no consent, waiver, approval, authorization,
license, qualification or order of or filing or registration
with any court or governmental or regulatory agency or body is
required for the execution and delivery by the Company of this
Agreement or for the issue and sale of the Securities, or for
the consummation of any of the transactions contemplated
hereby, except (A) such as have been obtained under the Act,
(B) as may be required by the NASD (as to which such counsel
need express no opinion); and (C) as may be required by state
securities or "blue sky" laws in connection with the purchase
and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and the Prospectus;
(vi) the issuance, sale and delivery of the Securities,
the execution, delivery and performance by the Company of this
Agreement (assuming due authorization and execution by each
party other than the Company), and the
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consummation by the Company of the transactions contemplated
hereby and the compliance by the Company with the terms of the
foregoing do not, and, at the Closing Date, will not, conflict
with or constitute or result in a breach or violation by the
Company or any of the Subsidiaries of (A) any provision of the
Certificate of Incorporation or By-laws of the Company, (B)
any of the terms or provisions of, or constitute a default (or
an event which, with notice or lapse of time or both, would
constitute a default) by the Company, or give rise to any
right to accelerate the maturity or require the prepayment of
any indebtedness under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary under any
Material Contract identified in Schedule IV hereto or (C) any
law, statute, rule, or regulation or any order, decree or
judgment known to such counsel to be applicable to the Company
or any Subsidiary, of any court or governmental or regulatory
agency or body or arbitrator known to such counsel to have
jurisdiction over the Company or any of the Subsidiaries or
any of their respective properties or assets;
(vii) to the knowledge of such counsel, other than as
described in the Registration Statement, no legal, regulatory
or governmental proceedings are pending to which the Company
is a party or to which the property or assets of the Company
are subject which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or
which are required to be disclosed in the Registration
Statement, and to the knowledge of such counsel, no such
material proceedings have been threatened against the Company
or with respect to any of its respective assets or properties
and there is no franchise, contract or other document of a
character required to be described in the Registration
Statement or Prospectus, or to be filed as an exhibit thereto,
which is not described or filed as required;
(viii) the statements in the Prospectus under the headings
"Prospectus Summary," "Description of Capital Stock," and
"Certain Transactions," insofar as such statements purport to
summarize certain provisions of the Offering, the Company's
authorized and outstanding capital stock and certain
agreements to which the Company is a party, provide a fair
summary of such provisions of such agreements and instruments;
(ix) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b);
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings
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for that purpose have been instituted or threatened and the
Registration Statement and the Prospectus (other than the
financial statements and other financial information contained
therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the rules thereunder;
(x) no holders of securities of the Company have rights
to the registration of such securities under the Registration
Statement.
(xi) Neither the consummation of the transactions
contemplated hereby nor the sale, issuance, execution or
delivery of the Securities will violate Regulation T, U or X
of the Board of Governors of the Federal Reserve System.
In addition, such counsel shall state that such counsel has
participated in conferences with representatives of the
Representatives, officers and other representatives of the Company and
representatives of the independent certified accountants of the
Company, at which conferences the contents of the Prospectus and the
Registration Statement and the business and affairs of the Company and
the Subsidiaries were discussed, and although such counsel has not
independently verified and does not pass upon or assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, on the basis of the
foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon the representations and opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead such counsel to believe that the Registration
Statement at the Effective Date or as of the Execution Time, contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein not
misleading, or that the Prospectus as of its date and on the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
not express any comment with respect to the financial statements,
including the notes thereto and supporting schedules, or any other
financial or statistical data set forth or referred to in the
Registration Statement).
In rendering such opinions, such counsel (A) need not express
any opinion with regard to the application of laws of any jurisdiction
other than the Federal law of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of
New York and (B) may rely, as to matters of fact, to the extent they
deem proper on representations or certificates of responsible officers
of the Company
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and certificates of public officials. References to the Prospectus in
this paragraph (b) include any supplements thereto at the Closing Date.
The opinion of such counsel shall be rendered to the Underwriters at
the request of the Company and shall so state therein.
(c) At the Closing Date, the Company shall have furnished to
the Representatives the opinion of Xxxxx Xxxxx Xxxxxxxx, Esq., General
Counsel to the Company, dated the Closing Date, in the form set forth
below and otherwise reasonably satisfactory to the Representatives and
Counsel for the Underwriters, to the effect that:
(i) To the knowledge of such counsel, other than as
described in the Prospectus, no legal, regulatory or
governmental proceedings are pending to which any of the
Subsidiaries is a party or to which the property or assets of
the Subsidiaries are subject which, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect or which are required to be disclosed in the
Registration Statement, and to the knowledge of such counsel,
no such material proceedings have been threatened against the
Subsidiaries or with respect to any of their respective assets
or properties; and
(ii) None of the Company or the Subsidiaries is in
violation of its respective Organizational Documents; to the
knowledge of such counsel, no default by the Company or any of
the Subsidiaries exists in the due performance or observance
of any material obligation, agreement, covenant or condition
contained in any Material Contract which could reasonably be
expected to have a Material Adverse Effect; and to the
knowledge of such counsel, none of the Company nor the
Subsidiaries is in breach or violation of any law, statute,
rule or regulation, or any judgment, decree or order of any
governmental or regulatory agency or other body having
jurisdiction over the Company or any of the Subsidiaries or
any of their respective properties or assets such that any
such breach or violation could reasonably be expected to have
a Material Adverse Effect.
In addition, such counsel shall state that such counsel has
participated in conferences with representatives of the
Representatives, officers and other representatives of the Company and
representatives of the independent certified accountants of the
Company, at which conferences the contents of the Prospectus and the
Registration Statement and the business and affairs of the Company and
the Subsidiaries were discussed, and although such counsel has not
independently verified and does not pass upon or assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, on the basis of the
foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon the representations
20
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and opinions of officers and other representatives of the Company), no
facts have come to the attention of such counsel which lead such
counsel to believe that the Registration Statement at the Effective
Date or as of the Execution Time, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein not misleading, or that
the Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
(it being understood that such counsel need not express any comment
with respect to the financial statements, including the notes thereto
and supporting schedules, or any other financial or statistical data
set forth or referred to in the Registration Statement).
In rendering such opinions, such counsel (A) need not express
any opinion with regard to the application of laws of any jurisdiction
other than the Federal law of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of
Colorado and (B) may rely, as to matters of fact, to the extent she
deems proper on representations or certificates of responsible officers
of the Company and certificates of public officials. References to the
Prospectus in this paragraph (c) include any supplements thereto at the
Closing Date. The opinion of such counsel shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(d) The Representatives shall have received from Xxxxxx Xxxxxx
& Xxxxxxx, Counsel for the Underwriters, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with
respect to certain matters set forth in clauses (iii) (B), (iii) (D),
(iv), (viii) and (x) of subsection (b) of this Section 6.
In rendering such opinions, such counsel (A) need not express
any opinion with regard to the application of laws of any jurisdiction
other than the Federal laws of the United States, the General
Corporation Law of the State of Delaware and the laws of the State of
New York and (B) may rely, as to matters of fact, to the extent they
deem proper on representations or certificates of responsible officers
of the Company and certificates of public officials.
In addition, such counsel shall state that such counsel has
participated in conferences with representatives of the
Representatives, officers and other representatives of the Company and
representatives of the independent certified accountants of the
Company, at which conferences the contents of the Prospectus and the
Registration Statement and the business and affairs of the Company and
the Subsidiaries were discussed, and although such counsel has not
independently verified and does not pass
21
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upon or assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, on
the basis of the foregoing (relying as to materiality to the extent
such counsel deemed appropriate upon the representations and opinions
of officers and other representatives of the Company), no facts have
come to the attention of such counsel which lead such counsel to
believe that the Registration Statement at the Effective Date or as of
the Execution Time, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein not misleading, or that the Prospectus as
of its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need not express any comment with respect
to the financial statements, including the notes thereto and supporting
schedules, or any other financial or statistical data set forth or
referred to in the Registration Statement).
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
amendment supplement thereto), there has been no Material
Adverse Change, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(f) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from Nippon Telegraph and Telephone Corporation ("NTT")
addressed to the Representatives.
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(g) At the Execution Time and at the Closing Date, shall have
furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the applicable published rules and regulations
thereunder and Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA") and
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to Representatives with respect to
financial statements and certain financial information contained in the
Final Memorandum, in form and substance satisfactory to Counsel for the
Underwriters.
KPMG Peat Marwick LLP shall have also furnished to the
Representatives a letter stating that the Company's system of internal
accounting controls taken as a whole is sufficient to meet the broad
objectives of internal accounting control insofar as those objective
pertain to the prevention or detection of errors or irregularities in
amounts that would be material in relation to the financial statements
of the Company and its subsidiaries.
All references in this Section 6(g) to the Registration
Statement shall be deemed to include any amendment or supplement
thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(g) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given
of any intended or potential decrease in any such rating or of a
23
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possible change in any such rating that does not indicate the direction
of the possible change.
(j) The Securities shall have been listed and admitted and
authorized for trading on the Nasdaq National Market Stock Exchange,
and satisfactory evidence of such actions shall have been provided to
the Representatives.
(k) At the Execution Time, the Company shall have furnished to
the Representatives a letter substantially in the form of Exhibit A
hereto from each officer and director of the Company and each of the
stockholders listed on Schedule II hereto addressed to the
Representatives.
(l) NTT shall have consummated its purchase of shares of
Common Stock of the Company pursuant to an Investment Agreement (the
"Investment Agreement") and pursuant to a Stock Purchase and Master
Strategic Relationship Agreement (the "Stock Purchase Agreement"), both
dated as of April 7, 1998 and by and between the Company and NTT,
without waiver of any material provision thereof from the date of
execution. The Outside Service Provider Agreement (the "OSP Agreement"
and, together with the Investment Agreement and the Stock Purchase
Agreement, the "NTT Agreements") dated as of April 7, 1998 by and
between the Company and NTT America, Inc. shall have taken effect,
without waiver of any material provision thereof from the date of
execution. Each of the NTT Agreements shall be in full force and
effect.
(m) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and Counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company and
each Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
[The documents required to be delivered by this Section 6
shall be delivered at the office of Counsel for the Underwriters, at 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the Closing Date.]
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7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Xxxxxxx Xxxxx Xxxxxx on demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
The foregoing indemnity with respect to any untrue statement
contained in or any omission from any Preliminary Prospectus shall not inure to
the benefit of any Underwriter (or any affiliate or person who controls such
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) from whom the person asserting such loss,
liability, claim, damage or expense purchased any of the Securities that are the
subject thereof if such person was not sent or given a copy of the Prospectus
(or any amendment or supplement thereto), if the Company shall have previously
furnished copies thereof to the Underwriters in accordance with this Agreement,
at or prior to the written confirmation
25
-25-
of the sale of such Securities to such person and the untrue statement contained
in or the omission from the Preliminary Prospectus was corrected in the
Prospectus (or any amendment or supplement thereto).
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the Company by
or on behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company acknowledges that the statements set forth in
the last paragraph of the cover page regarding delivery of the Securities, the
legend in block capital letters on page 2 related to stabilization, syndicate
covering transactions and penalty bids and the table, the second paragraph, the
eighth paragraph and the ninth paragraph under the heading "Underwriting" in any
Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any Preliminary Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified
26
-26-
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified party
within a reasonable time after notice of the institution of such action or (iv)
the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively, "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or any alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable
27
-27-
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on either of such Exchange or National Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any
28
-28-
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Barney General Counsel (fax
no.: (212) ) and confirmed to the General Counsel, Xxxxxxx Xxxxx Xxxxxx, at ,
New York, New York, Attention: General Counsel; or, if sent to the Company, will
be mailed, delivered or telefaxed to Verio Inc., 0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx Xxxxx Xxxxxxxx, Esq.;
with a copy to Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx, Esq.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York, without regard
to principles of conflicts of law thereof.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
29
-29-
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such
term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
000X.
00
-00-
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the initial registration statement.
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxx Xxxxxx Inc. or
Salomon Brothers Inc to the extent that either such party is a
signatory to this Agreement.
31
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
VERIO INC.
By:
------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation
By: Xxxxx Xxxxxx Inc.
By:
---------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
32
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Xxxxx Xxxxxx Inc.
Credit Suisse First Boston Corporation
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
---------
Total.............................................. 5,000,000
=========
33
SCHEDULE II
Stockholders furnishing lock-up agreements:
Xxxxxx Fiber Properties, Inc.
Norwest Equity Partners V, L.P.
Providence Equity Partners
Centennial Fund V, L.P.
Centennial Fund IV, L.P.
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Still, Jr.
Xxxxx X. XxXxxxxx
Xxxxx Xxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxx
Xxx Xxxxxxxx Xxxxx
34
SCHEDULE III
Material Subsidiaries:
Organized Under Percentage Ownership
Name of Entity Laws of of Company
--------------- --------------- --------------------
Verio Web Hosting, Inc. Utah 100%
Verio-Northern California, Inc. Colorado 100%
Verio-Northeast, Inc. Colorado 100%
35
SCHEDULE IV
[To be updated by the Company]
Material Contracts:
1. Indenture, dated as of June 24, 1997, by and among Verio
Inc. and First Trust National Association (as trustee).
2. Warrant Agreement, dated as of June 24, 1997, by and
between First Trust National Association and Verio Inc.
3. Common Stock Registration Rights Agreement, dated as of
June 17, 1997, by and among Verio Inc., Xxxxxx Fiber Properties, Inc., Norwest
Equity Partners V, Providence Equity Partners, Centennial Fund V, L.P.,
Centennial Fund IV, L.P. (as investors) and the Initial Purchasers.
4. Registration Rights Agreement, dated as of June 17, 1997,
by and among Verio Inc. and the Initial Purchasers.
5. Lease Agreement, dated as of June 20, 1997, by and between
Verio Inc. and Highland Park Ventures, LLC, with respect to the property in
Englewood, Colorado, including the First Amendment to Lease Agreement, dated as
of December 16, 1997.
6. Lease Agreement, dated as of May 24, 1997, by and between
Verio Inc. and IM Joint Venture, with respect to the property in Dallas, Texas,
as amended.
7. Form of Indemnification Agreement between Verio Inc. and
each of its officers and directors.
8. Amended and Restated Stockholders Agreement, dated as of
May 20, 1997, by and between Verio Inc., the Series A Purchasers, the Series B
Purchasers, the Series C Purchasers and members of the management of Verio Inc.
9. The 1996 Stock Option Plan of Verio Inc.
10. The 1997 California Stock Option Plan of Verio Inc.
11. The 1998 Employee Stock Purchase Plan of Verio Inc.
36
-2-
12. The 1998 Stock Incentive Plan of Verio Inc.
13. Form of Executive Protection Agreement between Verio Inc.
and each of its officers.
14. Master Service Agreement, dated as of August 23, 1996, by
and between Verio Inc. and MFS Datanet, Inc.
15. Agreement for Terminal Facility Collocation Space, dated
August 8, 1996, by and between MFS Telecom, Inc. and Verio Inc.
16. Bilateral Peering Agreement, dated May 19, 1997, between
AT&T Corp. and Verio Inc.
17. Master Lease Agreement, dated November 17, 1997, by and
between Insight Investments Corp. and Verio Inc.
18. Master Lease Agreement, dated October 27, 1997, by and
between Cisco Capital Systems Corporation and Verio Inc.
19. MCI Domestic (US) Public Interconnection Agreement, dated
June 12, 1997, by and between MCI Telecommunications Corporation and Verio Inc.,
as amended.
20. Master Services Agreement, dated January 15, 1998, by and
between MCI Telecommunication Corporation and Verio Inc.
21. Cover Agreement, dated September 30, 1996, by and between
Sprint Communications Company L.P. and Verio Inc., as amended by Amendment One
to Cover Agreement dated November 7, 1996 and Amendment Two to Cover Agreement
dated March 2, 1998.
37
-3-
25. Lateral Exchange Networks Interconnection Agreement, dated
February 3, 1997, by and between Sprint Communications Company L.P. and Verio
Inc.
38
EXHIBIT A
[Form of Lock-up Agreement]
FNAME MI LNAME
Verio Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
[ ], 1998
Xxxxx Xxxxxx Inc.
Credit Suisse First Boston
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
c/o Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Agreement not to sell or otherwise
dispose of securities of Verio Inc.
Ladies and Gentlemen:
The undersigned understands that Verio Inc. (the "Company")
has filed a registration statement on Form S-1 (No. 333-47099) with the
Securities and Exchange Commission in connection with the initial public
offering (the "Offering") of Common Stock ("Shares") of the Company. The
undersigned further understands that the Company proposes to enter into an
underwriting agreement (the "Underwriting Agreement") with Xxxxx Xxxxxx Inc.,
Credit Suisse First Boston Corporation and Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation as representatives for the several Underwriters named in
the Underwriting Agreement (collectively, the "Underwriters"), in connection
with the Offering.
In recognition of the benefit that such Offering will confer
upon the undersigned, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in order to induce the
Company and the Underwriters to enter into the Underwriting Agreement and to
proceed with the Offering, the undersigned hereby agrees, that, should the
Offering be consummated, for a period of six months after the date of the
Underwriting Agreement relating to the Offering, the undersigned will not,
without the prior written consent of Xxxxx Xxxxxx Inc., directly or indirectly,
(i) offer, pledge, sell, contract to
39
sell, 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
or transfer any Shares of the Company or any securities convertible into or
exchangeable or exercisable for the Shares of the Company, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Shares,
whether any such swap transaction is to be settled by delivery of the Shares or
other securities, in cash or otherwise.
Sincerely,
------------------------------------------
Name: FNAME MI LNAME
