EXHIBIT 1.1
EARTHWEB INC.
1,300,000 Shares of Common Stock, $0.01 par value
Underwriting Agreement
May [__], 1999
X.X. Xxxxxx Securities Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxx Xxxxx Xxxxxx & Company, LLC
Wit Capital Corporation
As Representatives of several underwriters listed in Schedule I hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
EarthWeb Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters listed in Schedule I hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives") an aggregate of 750,000 shares of common stock, par value
$0.01 per share (the "Shares"), of the Company and the stockholders of the
Company named on Schedule II hereto (the "Selling Stockholders") propose to sell
to the Underwriters an aggregate of 550,000 shares of common stock of the
Company (the "Underwritten Shares") and the Selling Stockholders propose to sell
to the Underwriters, for the sole purpose of covering over-allotments in
connection with the sale of the Underwritten Shares, at the option of the
Underwriters, up to an additional 195,000 shares of common stock of the Company
(the "Option Shares"). The Underwritten Shares and the Option Shares are herein
referred to as the "Shares". The shares of common stock of the Company to be
outstanding after giving effect to the sale of the Shares are herein referred to
as the "Common Stock".
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement, including a prospectus, relating to the Shares. The registration
statement as amended at the time when it shall become effective including
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430A under the Securities Act, is referred to
in this Agreement as the "Registration Statement", and the prospectus in the
form first used to confirm sales of Shares is referred to in this Agreement as
the "Prospec tus". If the Company has filed an abbreviated registration
statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462
Registration Statement"), then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The Company and each of the Selling Stockholders hereby agree with the
Underwriters as follows:
1. The Company agrees to issue and sell the Underwritten Shares to the
several Underwriters as hereinafter provided, and each Underwriter, upon the
basis of the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees to purchase, severally and not jointly,
from the Company the respective number of Underwritten Shares set forth opposite
such Underwriter's name in Schedule I hereto at a purchase price per share (the
"Purchase Price") of $[______].
In addition, the Selling Stockholders, as and to the extent indicated in
Schedule II hereto agree, severally and not jointly, to sell the Option Shares
to the several Underwriters and the Underwriters shall have the option to
purchase at their election up to 195,000 Option Shares for the sole purpose of
covering over-allotments in connection with the sale of the Underwritten Shares.
The Underwriters on the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, shall have the
option to purchase, severally and not jointly, from the Selling Stockholders at
the Purchase Price that portion of the number of Option Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Option Shares by a
fraction the numerator of which is the maximum number of Option Shares which
such Underwriter is entitled to purchase and the denominator of which is the
maximum number of Option Shares that all of the Underwriters are entitled to
purchase hereunder, for the sole purpose of covering over-allotments (if any) in
connection with the sale of the Underwritten Shares by the several Underwriters.
Any such election to purchase Option Shares shall be made in proportion to the
maximum number of Option Shares to be sold by each Selling Stockholder as set
forth in Schedule II hereto.
The Underwriters may exercise the option to purchase the Option Shares at
any time (but not more than once) on or before the thirtieth day following the
date of this Agreement, by written notice from the Representatives to the
Company and the Selling Stockholders. Such notice shall set forth the aggregate
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number of Option Shares as to which the option is being exercised and the date
and time when the Option Shares are to be delivered and paid for which may be
the same date and time as the Closing Date (as hereinafter defined) but shall
not be earlier than the Closing Date nor later than the tenth full Business Day
(as hereinafter defined) after the date of such notice (unless such time and
date are postponed in accordance with the provisions of Section 9 hereof). Any
such notice shall be given at least two Business Days prior to the date and time
of delivery specified therein.
2. The Company and the Selling Stockholders understand that the
Underwriters intend (i) to make a public offering of the Shares as soon after
(A) the Registration Statement has become effective and (B) the parties hereto
have executed and delivered this Agreement, as in the judgment of the
Representatives is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately
available funds to the account specified to the Representatives by the Company
with regard to payment to the Company and by each Selling Stockholder with
regard to payment to such Selling Stockholder, in the case of the Underwritten
Shares, on May [__], 1999, or at such other time on the same or such other date,
not later than the fifth Business Day thereafter, as the Representatives and the
Company may agree upon in writing or, in the case of the Option Shares, on the
date and time specified by the Representatives in the written notice of the
Underwriters' election to purchase such Option Shares. The time and date of
such payment for the Underwritten Shares is referred to herein as the "Closing
Date" and the time and date for such payment for the Option Shares, if other
than the Closing Date, are herein referred to as the "Additional Closing Date".
As used herein, the term "Business Day" means any day other than a day on which
banks are permitted or required to be closed in New York City.
Payment for the Shares to be purchased on the Closing Date or the
Additional Closing Date, as the case may be, shall be made against delivery to
the Representatives for the respective accounts of the several Underwriters of
the Shares to be purchased on such date registered in such names and in such
denominations as the Representatives shall request in writing not later than two
full Business Days prior to the Closing Date or the Additional Closing Date, as
the case may be, with any transfer taxes payable in connection with the transfer
to the Underwriters of the Shares duly paid by the Company or the Selling
Stockholders, as the case may be. The certificates for the Shares will be made
available for inspection and packaging by the Representatives at the office of
X.X. Xxxxxx Securities Inc. set forth above not later than 1:00 P.M., New York
City time, on the Business Day prior to the Closing Date or the Additional
Closing Date, as the case may be.
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4. (a) The Company represents and warrants to each Underwriter and the
Selling Stockholders that:
(i) no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission, and each
preliminary prospectus filed as part of the Registration Statement as
originally filed or as part of any amendment thereto, or filed pursuant
to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act, and did not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
other than any such noncompliance, untrue statement or omission in a
preliminary prospectus which has been corrected in the Prospectus;
provided that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly for
use therein;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission; and the Registration Statement and
Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) comply, or will comply,
as the case may be, in all material respects with the Securities Act and
do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the date of
the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
if applicable, at the Closing Date or Additional Closing Date, as the
case may be, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; except that the foregoing representations and warranties
shall not apply to statements or omissions in the Registration Statement
or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company
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in writing by such Underwriter through the Representatives expressly for
use therein;
(iii) the financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus present fairly
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods specified;
and said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis,
and the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein; and the
pro forma financial information, and the related notes thereto, included
in the Registration Statement and the Prospectus has been prepared in
accordance with the applicable requirements of the Securities Act and is
based upon good faith estimates and assumptions believed by the Company
to be reasonable;
(iv) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus; and except as set forth or
contemplated in the Prospectus, neither the Company nor any of its
subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and its
subsidiaries, taken as a whole;
(v) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in
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good standing would not have a material adverse effect on the Company;
(vi) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties, or conducts
any business, so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a whole; and
all the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except, in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Company has an authorized capitalization as set forth
in the Prospectus and such authorized capital stock conforms as to legal
matters to the description thereof set forth in the Prospectus, and all
of the outstanding shares of capital stock of the Company (including the
shares to be sold by the Selling Stockholders) have been duly authorized
and validly issued, are fully-paid and non-assessable and are not
subject to any pre-emptive or similar rights; and, except as described
in or expressly contemplated by the Prospectus, there are no outstanding
rights (including, without limitation, pre-emptive rights), warrants or
options to acquire, or instruments convertible into or exchangeable for,
any shares of capital stock or other equity interest in the Company or
any of its subsidiaries, or any contract, commitment, agreement,
understanding or arrangement of any kind, to which the Company, any of
its subsidiaries or any of its controlling stockholders is a party,
relating to the issuance of any capital stock of the Company or any of
its subsidiaries, any such convertible or exchangeable securities or any
such rights, warrants or options;
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(ix) the Shares to be issued and sold by the Company hereunder
have been duly authorized, and, when issued and delivered to and paid
for by the Underwriters in accordance with the terms of this Agreement,
will be duly issued and will be fully paid and non-assessable and will
conform to the descriptions thereof in the Prospectus; and the issuance
of the Shares is not subject to any preemptive or similar rights;
(x) neither the Company nor any of its subsidiaries is or with
the giving of notice or lapse of time or both would be, in violation of
or in default under, its Certificate of Incorporation or By-Laws or any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which it or any of their properties is bound, except for violations
and defaults which individually and in the aggregate are not material to
the Company and its subsidiaries taken as a whole; the issue and sale of
the Shares and the performance by the Company of its obligations under
this Agreement and the consummation of the transactions contemplated
herein will not conflict with or result in a breach of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will any such action result in any violation of the provisions of
the Certificate of Incorporation or the By-Laws of the Company or any of
its subsidiaries or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
license, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Shares or the consum mation by the Company of the transactions
contemplated by this Agreement, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act, as may be required for the
Underwriters to obtain from the National Association of Securities
Dealers, Inc. (the "NASD") and as may be required under state securities
or Blue Sky Laws in connection with the purchase and distribution of the
Shares by the Underwriters;
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(xi) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries or any of
their respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be the subject which, if
determined adversely to the Company or any of its subsidiaries, could
individually or in the aggregate have, or reasonably be expected to
have, a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole and, to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened
by others; and there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
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(xii) the Company and its subsidiaries own no real property and
have good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects,
except such as do not materially affect the value of such property and
do not interfere with the use made or proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held
by it under valid, existing and enforceable leases with such exceptions
as are not material and do not interfere with the use made or proposed
to be made of such property and buildings by the Company or its
subsidiaries;
(xiii) no relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company
or any of its subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(xiv) except for EarthWeb LLC, Global Network Partners LLC
Warburg, Xxxxxx Ventures, L.P. ("Warburg"), Xxxxx Xxxx, Xxxxx Xxxxxxx
and certain other persons described in the Prospectus under caption
"Description of Capital Stock --Registration Rights," no person has the
right to require the Company to register any securities for offering and
sale under the Securities Act by reason of the filing of the
Registration Statement with the Commission or the issue and sale of the
Shares by the Company hereunder or, to the best knowledge of the
Company, the sale of the Shares to be sold by the Selling Stockholders
hereunder, and each of EarthWeb LLC, GNP Warburg, Xxxxx Xxxx, Xxxxx
Xxxxxxx and such other persons described in the Prospectus under caption
"Description of Capital Stock-- Registration Rights," has duly
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waived its registration rights with respect to the securities owned by
them that are not being sold in the offering covered by the Registration
Statement;
(xv) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended (the "Investment Company Act");
(xvi) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and D&L Online, Inc., are
independent public accountants as required by the Securities Act;
(xvii) the Company and its subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be
filed and have paid all taxes shown thereon and all assessments received
by it to the extent that such taxes have become due and are not being
contested in good faith; and there is no tax deficiency which has been
or might reasonably be expected to be asserted or threatened against the
Company or any subsidiary;
(xviii) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock;
(xix) the Company and its subsidiaries own, possess or have
obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and have made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all self-regulatory
organizations and all courts and other tribunals, domestic or foreign,
necessary to own or lease, as the case may be, and to operate their
properties and to carry on their business as conducted as of the date
hereof, and neither the Company nor any of its subsidiaries has received
any actual notice of any proceeding relating to revocation or
modification of any such license, permit, certificate, consent, order,
approval or other authorization; and the Company and its subsidiaries
are in compliance with all laws and regulations relating to the conduct
of their business as conducted as of the date hereof, except to the
extent that failure to so comply
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would not, singly or in the aggregate, have a material adverse effect on
the Company's and its subsidiaries, business, results of operations and
financial condition, taken as a whole;
(xx) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
its subsidiaries which are likely to have a material adverse effect on
the Company and its subsidiaries taken as a whole;
(xxi) each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended,
("ERISA") that is maintained, administered or contributed to by the
Company or any of its subsidiaries for employees or former employees of
the Company or its subsidiaries and their affiliates has been maintained
in compliance with its terms and the requirements of any applicable
statutes, orders, rules and regulations, including but not limited to
ERISA and the Internal Revenue Code of 1986, as amended, ("Code"),
except to the extent that failure to so comply would not, singly or in
the aggregate, have a material adverse effect on the Company's and its
subsidiaries, business, results of operations and financial condition
taken as a whole. No prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code has occurred with
respect to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption;
(xxii) other than as set forth or contemplated in the
Prospectus, the Company and its subsidiaries own or possess adequate
licenses or other rights to use all patents, copyrights, trademarks,
trade dress, service marks, trade names, technology, trade secrets and
know-how (the "Intellectual Property") necessary to conduct their
business in the manner described in the Prospectus and neither the
Company nor any of its subsidiaries has received any notice of
infringement or conflict with (and neither the Company nor any of its
subsidiaries is aware of any infringement or conflict with) asserted
rights of others with respect to any patents, copyrights, trademarks,
trade dress, service marks, trade names, technology or know-how which
could result in any material adverse effect upon the Company and its
subsidiaries, taken as a whole; and the discoveries, inventions,
products or processes of the Company and its subsidiaries necessary to
conduct their business in the manner described in the Prospectus do not,
to the best knowledge of the Company, infringe or conflict with any
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right or patent of any third party, or any discovery, invention, product
or process which is the subject of a patent application filed by any
third party, known to the Company which could have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(xxiii) the Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (C) access to assets is permitted only in accordance
with management's general or specific authorization; and (D) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences;
(xxiv) The unissued Shares issuable upon the exercise of options
(the "Options") to be exercised by certain of the Selling Stockholders
(the "Optionholders") have been duly and validly authorized and reserved
for issuance, and at the time of delivery to the Underwriters with
respect to such Shares, such Shares will be issued and delivered in
accordance with the provisions of the Stock Option Agreements between
the Company and such Selling Stockholders pursuant to which such Options
were granted (the "Option Agreements") and will be duly and validly
issued, fully paid and non-assessable and will conform to the
description thereof in the Prospectus;
(xxv) The Options were duly authorized and issued pursuant to
the Option Agreements and constitute valid and binding obligations of
the Company and the Optionholders are entitled to the benefits provided
by the Option Agreements; the Option Agreements were duly authorized,
executed and delivered and constitute valid and binding instruments
enforceable in accordance with their terms subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Options and the Option Agreements conform to
the descriptions thereof in the Prospectus;
(xxvi) all outstanding shares of Common Stock held by the
individuals and entities named on Schedule III hereto (except for
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those shares held by such individuals and entities named on Schedule II
hereto listed under the heading "Underwritten Shares" and, only in the
event the Underwriters' exercise their option to purchase the Option
Shares, those shares listed under the heading "Option Shares" on
Schedule II hereto), and all securities convertible into or exercisable
or exchangeable for Common Stock held by such individuals or entities,
are subject to valid, binding and enforceable agreements (collectively,
the "Lock-up Agreements") that restrict the holders thereof from
selling, making any short sale of, granting any option for the purchase
of, or otherwise transferring or disposing of, any of such shares of
Common Stock, or any such securities convertible into or exercisable or
exchangeable for Common Stock, for a period of 90 days after the date of
the Prospectus without the prior written consent of X.X. Xxxxxx
Securities Inc.; and
(xxvii) the Common Stock is authorized for listing on the
Nasdaq National Market (as herein defined).
(b) Each of the Selling Stockholders severally represents and warrants to,
and agrees with, each of the Underwriters that:
(i) all consents, approvals, authorizations and orders necessary for the
execution and delivery by such Selling Stockholder of this Agreement and, in the
case of all Selling Stockholders other than Warburg (the "Individual Sellers"),
the Power of Attorney (the "Power of Attorney") and the Custody Agreement (the
"Custody Agreement") hereinafter referred to, and for the sale and delivery of
the Shares to be sold by such Selling Stockholder hereunder, have been obtained;
and such Selling Stockholder has full right, power and authority to enter into
this Agreement and, in the case of the Individual Sellers, the Power of Attorney
and the Custody Agreement, and to sell, assign, transfer and deliver the Shares
to be sold by such Selling Stockholder hereunder; this Agreement and, in the
case of the Individual Sellers, the Power of Attorney and the Custody Agreement
have been duly authorized, executed and delivered and are valid and binding
agreements of such Selling Stockholder, enforceable in accordance with their
terms;
(ii) the sale of the Shares to be sold by such Selling Stockholder
hereunder and the compliance by such Selling Stockholder with all of the
provisions of this Agreement and, in the case of the Individual Sellers, the
Power of Attorney and the Custody Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
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constitute a default under, any statute, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound or to which
any of the property or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the partnership
agreement of such Selling Stockholder if such Selling Stockholder is a
partnership or a limited liability company agreement if such Selling Stockholder
is a limited liability company, or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling Stockholder;
(iii) such Selling Stockholder has good and valid title to the Shares to
be sold at the Closing Date or Additional Closing Date, as the case may be, by
such Selling Stockholder hereunder (other than the Shares to be issued upon
exercise of options ("Options")), free and clear of all liens, encumbrances,
equities or adverse claims; in the case of any Shares to be issued upon exercise
of Options, such Selling Stockholder has good and valid title to such Options,
free and clear of all liens, encumbrances, equities or adverse claims; and, upon
payment for the Shares to be sold by the Selling Stockholders as provided
herein, delivery of such Shares, as directed by the Underwriters, to Cede & Co.
("Cede") or such other nominee as may be designated by Depository Trust Company
("DTC"), registration of such Shares in the name of Cede or such other nominee
and crediting of such Shares on the books of DTC to "securities accounts" (as
defined in Section 8-501 of the Uniform Commercial Code as in effect in the
State of New York (the "UCC")) of the respective Underwriters (assuming that
neither DTC nor any such Underwriter has "notice of any adverse claim" (as such
phrase is defined in Section 8-105 of the UCC) to such Shares), (A) DTC shall be
a "protected purchaser" of such Shares within the meaning of Section 8-303 of
the UCC, and (B) under Section 8-501 of the UCC, each Underwriter will acquire a
valid "security entitlement" (as defined in Section 8-102 of the UCC) to the
Shares being so purchased by or on behalf of such Underwriter, and, (c) to the
extent governed by the UCC, no action based on any "adverse claim" (as defined
in Section 8-102 of the UCC) to such Shares (or security entitlement with
respect thereto) may properly be asserted against such Underwriter with respect
to such security entitlement; it being understood that for the purpose of this
representation and warranty, when such payment, delivery, registration and
crediting occur, (x) such Shares will have been registered in the name of Cede
or another nominee designated by DTC, in each case on the Company's share
registry in accordance with its certificate of incorporation, bylaws and
applicable law, (y) appropriate entries to the securities accounts of the
several Underwriters on the records of DTC will
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have been made pursuant to the UCC, and (z) DTC is a "clearing corporation" (as
defined in Section 8-102 of the UCC);
(iv) such Selling Stockholder has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares;
(v) except as disclosed in the Prospectus, none of the Selling
Stockholders either has or shares the power to vote, or to direct the voting of,
or the power to dispose, or to direct the disposition of, any shares of Common
Stock, directly or indirectly, through any contract, arrangement, understanding,
relationship or otherwise;
(vi) the Registration Statement and the Prospectus (as amended or
supplemented) comply or will comply, as the case may be, in all material
respects the Securities Act and do not and will not, as of the applicable
effective date of the Registration Statement and any amendment thereto and as of
the date of the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented, if applicable, at the Closing
Date or Additional Closing Date, as the case may be, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; except that the foregoing representations and warranties
shall not apply to statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use therein.
Each of the Individual Sellers represents and warrants that certificates in
negotiable form (other than with respect to any Shares to be issued upon the
exercise of Options), and each of the Individual Sellers who is selling Shares
upon the exercise of Options represents and warrants that duly completed and
executed irrevocable Option exercise notices in the forms specified by the
relevant Option Agreement, in each case with respect to all of the Shares to be
sold by such Selling Stockholders hereunder, have been placed in custody under a
Custody Agreement relating to such Shares or Options, as the case may be, in the
form heretofore furnished to you, duly executed and delivered by such Selling
Stockholder to Xxxx X. Xxxxxx, as custodian (the "Custodian"), and that such
Individual Seller has duly executed and delivered Powers of Attorney, in the
form
15
heretofore furnished to you, appointing the person or persons indicated in
Schedule II hereto, and each of them, as such Individual Seller's Attorneys-in-
fact (the "Attorneys-in-Fact" or any one of them the "Attorney-in Fact") with
authority to execute and deliver this Agreement on behalf of such Individual
Seller, to determine the purchase price to be paid by the Underwriters to the
Individual Seller as provided herein, to authorize the delivery of the Shares to
be sold by such Individual Seller hereunder, to authorize (if applicable) the
exercise of the Options to be exercised with respect to the Shares to be sold by
such Individual Seller hereunder and otherwise to act on behalf of such
Individual Seller in connection with the transactions contemplated by this
Agreement and the Custody Agreement.
Each of the Individual Sellers specifically agrees that the Shares
represented by the certificates or the irrevocable Option exercise notice, in
either case held in custody for such Individual Seller under the Custody
Agreement, are subject to the interests of the Underwriters hereunder, and that
the arrangements made by such Individual Seller for such custody, and the
appointment by such Individual Seller of the Attorney-in-Fact by the Power of
Attorney, are to that extent irrevocable. Each of the Individual Sellers
specifically agrees that the obligations of such Individual Seller hereunder
shall not be terminated by operation of law, whether by the death or incapacity
of any Individual Seller, or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such estate or
trust, or in the case of a partnership or corporation, by the dissolution of
such partnership or corporation, or by the occurrence of any other event. If
any Individual Seller or any such executor or trustee should die or become
incapacitated, or if any such estate or trust should be terminated, or if any
such partnership or corporation should be dissolved, or if any other such event
should occur, before the delivery of the Shares hereunder, certificates
representing such Shares shall be delivered by or on behalf of such Individual
Seller in accordance with the terms and conditions of this Agreement and the
Custody Agreement, and actions taken by the Attorneys-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, incapacity, termination,
dissolution or other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have received notice of
such death, incapacity, termination, dissolution or other event.
Warburg represents and warrants that certificates in negotiable form
representing all of the Shares to be sold by Warburg hereunder, in the form
heretofore furnished to you, will be duly executed and delivered by Warburg to
you on the Closing Date or the Additional Closing Date, as the case may be.
Warburg specifically agrees that its obligations hereunder shall not be
terminated by operation of law, whether by the death or incapacity of any
general partner or other employee of Warburg, or, by the dissolution of such
partnership, or by the occurrence of any other event. If any executor or
trustee should die or
16
become incapacitated, or if such partnership should be dissolved, or if any
other such event should occur, before the delivery of the Shares hereunder,
certificates representing such Shares shall be delivered by or on behalf of
Warburg in accordance with the terms and conditions of this Agreement, as if
such death, incapacity, termination, dissolution or other event had not
occurred.
5. (a) The Company covenants and agrees with each of the several
Underwriters as follows:
(i) to use its best efforts to cause the Registration Statement
to become effective at the earliest possible time and, if required, to
file the final Prospectus with the Commission within the time periods
specified by Rule 424(b) and Rule 430A under the Securities Act and to
furnish copies of the Prospectus to the Underwriters in New York City
prior to 10:00 a.m., New York City time, on the Business Day next
succeeding the date of this Agreement in such quantities as the
Representatives may reasonably request;
(ii) to deliver, at the expense of the Company, to the
Representatives four conformed copies of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
exhibits, and to each other Underwriter a conformed copy of the
Registration Statement (as originally filed) and each amendment thereto,
in each case without exhibits and, during the period mentioned in
Section 5 below, to each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) as the
Representatives may reasonably request;
(iii) before filing any amendment or supplement to the
Registration Statement or the Prospectus, whether before or after the
time the Registration Statement becomes effective, to furnish to the
Representatives a copy of the proposed amendment or supplement for
review and not to file any such proposed amendment or supplement to
which the Representatives reasonably object;
(iv) to advise the Representatives promptly, and to confirm
such advice in writing when the Registration Statement has become
effective, (A) when any amendment to the Registration Statement has been
filed or becomes effective, (B) when any supplement to the Prospectus or
any amended Prospectus has been filed and to furnish the Representatives
with copies thereof, (C) of any request by the Commission for any
amendment
17
to the Registration Statement or any amendment or supplement to the
Prospectus or for any additional information, (D) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose, (E) of the occurrence of
any event, within the period referenced in Section 5 below, as a result
of which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, and (F) of the receipt by the Company of any notification
with respect to any suspension of the qualification of the Shares for
offer and sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and to use its best efforts to prevent
the issuance of any such stop order, or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or
of any order suspending any such qualification of the Shares, or
notification of any such order thereof and, if issued, to obtain as soon
as possible the withdrawal thereof;
(v) if, during such period of time after the first date of the
public offering of the Shares as in the opinion of counsel for the
Underwriters a prospectus relating to the Shares is required by law to
be delivered in connection with sales by the Underwriters or any dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses the Representatives will furnish to the
Company) to which Shares may have been sold by the Representatives on
behalf of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(vi) to endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the
18
Representatives shall reasonably request and to continue such
qualification in effect so long as reasonably required for distribution
of the Shares; provided that the Company shall not be required to file a
general consent to service of process in any jurisdiction;
(vii) to make generally available to its security holders and
to the Representatives as soon as reasonably practicable an earnings
statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the effective date
of the Registration Statement, which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission
promulgated thereunder;
(viii) during the period of five years after the date of this
Agreement, to furnish to the Representatives copies of all reports or
other communications (financial or other) furnished to holders of the
Shares, and copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange;
(ix) for a period of 90 days after the date of the initial
public offering of the Shares not to (A) offer, pledge, announce the
intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities of
the Company which are substantially similar to the Common Stock,
including but not limited to any securities convertible into or
exercisable or exchangeable for Common Stock, or that represent the
right to receive Common Stock or any such substantially similar
securities or (B) enter into any swap, option, future, forward or other
agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock or any securities
substantially similar to Common Stock, whether any such transaction
described in clause (A) or (B) above is to be settled by delivery of
Common Stock or such other securities, in cash or otherwise without the
prior written consent of X.X. Xxxxxx Securities Inc., provided, however,
the foregoing shall not prohibit (w) the issuance of Shares to be sold
hereunder, (x) the issuance of stock options granted under existing
director or employee stock option or stock purchase plans, (y) the
issuance of any shares of Common Stock of the Company issued upon the
exercise of options granted under existing employee stock option
19
plans, or (z) the issuance of any shares of Common Stock upon the
conversion or exchange of convertible, exercisable or exchangeable
securities outstanding on the date hereof;
(x) to use the net proceeds received by the Company from the
sale of the Shares pursuant to this Agreement in the manner specified in
the Prospectus under the caption "Use of Proceeds";
(xi) to use its best efforts to list the Shares being sold by
the Company hereunder on the National Association of Securities Dealers
Automated Quotations National Market (the "Nasdaq National Market");
(xii) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (A) incident to the preparation,
issuance, reregistration, transfer, execu tion and delivery of the
Shares, (B) incident to the preparation, printing and filing under the
Securities Act of the Registration Statement, the Prospectus and any
preliminary prospectus (including in each case all exhibits, amendments
and supplements thereto), (C) incurred in connection with the
registration or qualification of the Shares under the laws of such
jurisdictions as the Representatives may designate (including fees of
counsel for the Underwriters and its disbursements), (D) in connection
with the listing of the Shares on the Nasdaq National Market, (E)
related to the filing with, and clearance of the offering by, the
National Association of Securities Dealers, Inc., (F) in connection with
the printing (including word processing and duplication costs) and
delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and the furnishing to the Underwriters and dealers of copies
of the Registration Statement and the Prospectus, including mailing and
shipping, as herein provided, (G) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors,
the cost of preparing stock certificates and (H) the cost and charges of
any transfer agent and any registrar; it is understood, however, that,
except as provided in this Section, and Sections 7 and 8 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, stock transfer taxes on resale of
20
any of the Shares by them, and any advertising expenses connected with
any offers they may make.
(b) Each of the Selling Stockholders covenants and agrees with each of the
several Underwriters as follows:
(i) to waive, and each of them hereby waives, in connection
with the offering contemplated hereby the registration rights granted to
them by the Company pursuant to the Registration Rights Agreement dated
as of October 25, 1996, the Registration Rights Agreement dated February
2, 1999 or the Registration Rights Agreement dated March 19, 1999, as
the case may be; and
(ii) to deliver to the Representatives prior to or at the
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
the Treasury Department regulations in lieu thereof) in order to
facilitate the Underwriters' documentation of their compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated.
6. The several obligations of the Underwriters hereunder to purchase the
Shares on the Closing Date or the Additional Closing Date, as the case may be,
are subject to the performance by the Company and each of the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) the Registration Statement shall have become effective (or
if a post-effective amendment is required to be filed under the
Securities Act, such post-effective amendment shall have become
effective) not later than 5:00 P.M., New York City time, on the date
hereof; and no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the
Securities Act and in accordance with Section 5 hereof; and all requests
for additional information shall have been complied with to the
satisfaction of the Representatives;
(b) the respective representations and warranties of the
Company and the Selling Stockholders contained herein are true and
correct on and as of the Closing Date or the Additional Closing Date, as
the case may be, as if made on and as of the Closing Date or the
Additional Closing Date, as the case may be, and each of the Company and
the Selling Stockholders
21
shall have complied with all agreements and all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date
or the Additional Closing Date, as the case may be;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date or the Additional Closing Date, as the
case may be, there shall not have occurred any downgrading, nor shall
any notice have been given of (i) any downgrading, (ii any intended or
potential downgrading or (ii any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company by any "nationally recognized statistical
rating organization", as such term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus,
the effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated in
the Prospectus; and neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, (i) a
certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to the
Representatives to the effect set forth in Sections 6, 6, 6 and 6 (with
respect to the respective representations, warranties, agreements and
conditions of the Company) and to the further effect that there has not
occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole from that set forth or contemplated in the
Registration Statement, and
22
(ii) a Certificate of the Selling Stockholders satisfactory to the
Representatives, to the effect set forth in Section 6(b) (with respect
to the representations, warranties, agreements and conditions of the
Selling Stockholders);
(f) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, in form
and substance satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which the
conduct of its business requires such qualification, other than
where the failure to be so qualified or in good standing would
not have a material adverse effect on the Company and its
subsidiaries, taken us in whole;
(iii) each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the
laws of its jurisdiction of incorporation with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which the conduct of its business requires such
qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole; and all of
the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and (except, in the case of foreign
subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, claims or encumbrances;
(iv) to such counsel's knowledge after due inquiry of
officers of the Company (it being understood that for purposes
of this opinion, due inquiry does not include any search of
court or
23
administrative records), there is no legal or governmental
investigation, action, suit or proceeding pending, threatened
against or affecting the Company or any of its subsidiaries or
any of their respective properties or to which the Company or
any of its subsidiaries is or may be a party or to which the
property of the Company or any of its subsidiaries is or may be
subject which is required to be described in the Registration
Statement or the Prospectus and is not so described; and there
is no statute, regulation, contract or other document known to
such counsel of a character required to be described in the
Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required, and all
such contracts or other documents described in the Prospectus
have been accurately described in all material respects;
(v) this Agreement has been duly authorized, executed
and delivered by the Company;
(vi) the Company has authorized capital stock as set
forth in the Prospectus;
(vii) all outstanding shares of the Company's Common
Stock, $0.01 par value (including the Shares to be sold by the
Selling Stockholders) have been duly authorized, validly issued
and are fully paid and non-assessable;
(viii) the Shares to be sold by the Company hereunder
have been duly authorized, and upon delivery to the Underwriters
against payment therefor in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable
and the issuance of the Shares is not subject to any preemptive
rights;
(ix) the statements in the Prospectus (1) in the second
sentence of the first paragraph and the third paragraph under
the caption "Risk Factors --Misappropriation of our intellectual
property could harm our reputation, affect our competitive
position and cost us money" and the third and fifth sentence
under the caption "Business -- Intellectual Property" are, to
the best of such counsel's knowledge, an accurate summary of the
matters set forth therein, provided that with respect to the
second sentence in the first paragraph and the third and fourth
sentences of the third paragraph under the caption
"Risk Factors --Misappropriation of our intellectual property
could harm our reputation, affect our
24
competitive position and cost us money" and the fifth sentence
under the caption "Business -- Intellectual Property," such
counsel is only aware that the Company has obtained the service
xxxx registrations for "EarthWeb" and its related logo (the
"Fang Logo Design") and has applied for the registration of the
service marks "xxxxxxxxx.xxx" and "developerdirect", (2) under
"Management -- Employment and Consulting Agreements; and --
Benefit Plans," insofar as such statements constitute a summary
of the legal documents or agreements referred to therein, fairly
present the information called for with respect to such
documents or agreements, and (3) under "Description of Capital
Stock," insofar as such statements constitute a summary of the
terms of the Common Stock, legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such terms, legal matters, documents
or proceedings;
(x) the Registration Statement, as of the effective
date thereof, and the Prospectus, at the time it was filed
pursuant to Rule 424(b) under the Act and as of the date of such
opinion, complied as to form in all material respects with the
requirements of the Act (except as to the financial statements,
supporting schedules, footnotes and other financial and
statistical information included therein, as to which such
counsel need express no opinion);
(xi) the issue and sale of the Shares, the execution
and delivery of this Agreement and the performance by the
Company of its terms do not violate or result in a violation of
the Company's or any of its subsidiaries' Certificate of
Incorporation or By-Laws, any applicable law, statute, rule or
regulation or any judgment, order or decree, known to such
counsel, of any court, governmental agency or body or arbiter
having jurisdiction over the Company or any of its subsidiaries
or their respective properties, and, to such counsel's
knowledge, will not constitute a material breach of the terms,
conditions or provisions of or constitute a default under any
contract, undertaking, indenture or other agreement to which the
Company or any of its subsidiaries is a party or by which any of
their respective properties are bound;
(xii) no authorization, approval, consent, order,
license, registration or qualification of any court or
governmental authority or agency or body is required for the
issue and sale of the Shares or the consummation of the other
transactions contemplated by this Agreement, except such as have
been obtained under the Securities
25
Act, those that the Underwriters need to obtain from the NASD
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Shares
by the Underwriters;
(xiii) the Company is not and, after giving effect to
the offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be, an
"investment company" as such term is defined in the Investment
Company Act;
(xiv) to such counsel's knowledge, the Company and its
subsidiaries own, possess or have obtained all material
licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and have made all material
declarations and filings with, all federal, state, local and
other governmental authorities (including foreign regulatory
agencies), all self-regulatory organizations and all courts and
other tribunals, domestic or foreign, necessary to own or lease,
as the case may be, and to operate their respective material
properties and to carry on their respective business
substantially as conducted as of the date hereof, and, to such
counsel's knowledge, neither the Company nor any of its
subsidiaries has received any actual notice of any proceeding
relating to revocation or modification of any such license,
permit, certificate, consent, order, approval or other
authorization and, to such counsel's knowledge, the Company and
its subsidiaries are in compliance with all material laws and
regulations relating to the conduct of their respective business
substantially as conducted as of the date of the Prospectus; and
(xv) any real property and buildings held under a lease
governed by New York law by the Company or any of its
subsidiaries is held by such company under valid, existing and
enforceable leases with such exceptions as are not material and
do not interfere with the use made or proposed to be made of
such property and buildings by the Company or such subsidiary,
as applicable.
In addition to the matters set forth above, such opinion shall also include
a statement to the effect that nothing has come to such counsel's attention that
leads them to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as amended or
supplemented, if applicable, at the time it was filed with the Commission
pursuant to Rule 424(b) under the
26
Securities Act or as of the date of such opinion, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel has not been requested to and does not make any
comment in this paragraph with respect to the financial statements (including
footnotes), supporting schedules, and other financial and statistical
information contained in the Registration Statement or Prospectus). With respect
to the foregoing opinion, such counsel may state that their opinion and belief
is based upon their participation in the preparation of the Registration
Statement and the Prospectus and any amendment or supplement thereto but is
without independent check or verification except as specified.
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Delaware and New York, to the extent such counsel deems proper and
to the extent specified in such opinion, if at all, upon an opinion or opinions
(in form and substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel, familiar with
the applicable laws and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or good standing of the
Company. The opinion of such counsel for the Company shall state that the
opinion of any such other counsel upon which they relied is in form satisfactory
to such counsel and, in such counsel's opinion, the Underwriters and they are
justified in relying thereon.
The opinion of Xxxxxxxx & Xxxxxxxx LLP described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein.
(g) Xxxxxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholders shall
have furnished to the Representatives their written opinion, dated the Closing
Date or Additional Closing Date, as the case may be, in form and substance
satisfactory to the Representatives, to the effect that:
(i) this Agreement has been duly authorized, executed and
delivered by or on behalf of each of the Selling Stockholders;
(ii) the Power of Attorney and the Custody Agreement have been
duly authorized, executed and delivered by or on behalf of each of the
Individual Sellers and are the valid and binding agreements of the
Individual Sellers, enforceable in accordance with their terms;
27
(iii) each of the Selling Stockholders is the sole record owner
of the number of Shares to be sold by the respective Selling
Stockholder, and upon crediting of the Shares to X.X. Xxxxxx Securities
Inc.'s account at the Depository Trust Company and payment by X.X.
Xxxxxx, on behalf of the Underwriters, for the Shares to be sold by each
Selling Stockholder to the Underwriters in accordance with the
Underwriting Agreement, no action based on an adverse claim (as such
term is defined in Section 8-102 of the New York UCC) to the Shares,
whether named in conversion, replevin, constructive trust, equitable
lien, or other theory, may be asserted against the Underwriters,
assuming that the Underwriters acquire such Shares without notice of any
adverse claim (as such term is used in Section 8-502 of the New York
UCC).
(iv) the sale of the Shares and the execution and delivery by
the Selling Stockholders of, and the performance by the Selling
Stockholders of their obligations under, this Agreement and, in the case
of the Individual Sellers, the Power of Attorney and the Custody
Agreement, and the consummation of the transactions contemplated herein
and therein, as the case may be, (A) have been duly authorized on the
part of each of the Selling Stockholders that is a signatory thereto and
(B) will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound or to which any of the material property or
assets of such Selling Stockholder is subject, nor will any such action
result in any material violation of the partnership agreement if such
Selling Stockholder is a partnership or a limited liability agreement if
such Selling Stockholder is a limited liability company or any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over such Selling
Stockholder or any of its material properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the sale of the
Shares or the consummation by the Selling Stockholders of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as have been
obtained under the Securities Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
28
In rendering such opinions, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
the States of Delaware and New York, to the extent such counsel deems proper and
to the extent specified in such opinion, if at all, upon an opinion or opinions
(in form and substance reasonably satisfactory to Underwriters' counsel) of
other counsel reasonably acceptable to the Underwriters' counsel, familiar with
the applicable laws and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of a Selling Stockholder
and certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate or other existence or good
standing of a Selling Stockholder. For the Selling Stockholders other than Xxxx
X. Xxxxxx, Xxxxxx Xxxxxx, Xxxx Xxxxxxx and Warburg, Xxxxxx Ventures, L.P., such
counsel shall be entitled to rely, without further investigation, solely upon
the representations and warranties of such Selling Stockholder contained in
their respective Custody Agreement and in this Agreement, stating in such
connection that nothing has come to such counsels' attention that causes them to
believe that they and the Underwriter are not justified in relying on such
representations and warranties. The opinion of such counsel for the Selling
Stockholders shall state that the opinion of any such other counsel upon which
they relied is in form satisfactory to such counsel and, in such counsel's
opinion, the Underwriters and they are justified in relying thereon.
29
(h) on the effective date of the Registration Statement and the effective
date of the most recently filed post-effective amendment to the Registration
Statement and also on the Closing Date or Additional Closing Date, as the case
may be, PricewaterhouseCoopers LLP shall have furnished to you letters, dated
the respective dates of delivery thereof, in form and substance satisfactory to
you, containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus;
(i) the Representatives shall have received on and as of the Closing Date
or Additional Closing Date, as the case may be, an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel to the Underwriters, with respect to the due authorization and
valid issuance of the Shares, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(j) the Shares to be delivered on the Closing Date or Additional Closing
Date, as the case may be, shall have been approved for listing on the Nasdaq
National Market, subject to official notice of issuance;
(k) on or prior to the Closing Date or Additional Closing Date, as the
case may be, the Company and the Selling Stockholders shall have furnished to
the Representatives such further certificates and documents as the
Representatives shall reasonably request; and
(l) the "lock-up" agreements, each substantially in the form of Exhibit A
hereto, between you and each of the individuals and entities described in
Section 4(a)(xxiv) relating to sales and certain other dispositions of shares of
Common Stock or certain other securities, delivered to you on or before the date
hereof, shall be in full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
7. The Company agrees to indemnify and hold harmless (i) each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, and
(ii) Warburg and each person, if any, who controls Warburg within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
30
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, the legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused, in the case of any Underwriter, by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Representatives
expressly for use therein, and in the case of Warburg, by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to Warburg furnished to the Company in
writing by Warburg expressly for use therein; provided, however, that the
foregoing indemnity agreement with respect to any preliminary prospectus shall
not inure to the benefit of any Underwriter from whom the person asserting any
such losses, claims, damages or liabilities purchased Shares, or any person
controlling such Underwriter, if a copy of the Prospectus was not sent to or
given by or on behalf of such Underwriter to such person, if required by law so
to have delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus would have cured the defect giving
rise to such loss, claim, damage or liability.
Each of the Selling Stockholders severally in proportion to the number of
Shares to be sold by such Selling Stockholder hereunder agrees to indemnify and
hold harmless (i) each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and (ii) the Company and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter and Warburg, but only
with reference to information relating to such Selling Stockholder furnished to
the Company in writing by such Selling Stockholder expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless (i) the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act and (ii) each of the
Selling Stockholders and each person who controls such Selling Stockholder
within the meaning of Section 15 of the Securities Act and Section 20
31
of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter and Warburg, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to the preceding paragraphs
of this Section 7, such person (the "Indemnified Person") shall promptly notify
the person or persons against whom such indemnity may be sought (the
"Indemnifying Person") in writing, and such Indemnifying Persons, upon request
of the Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Persons and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Persons have failed
within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding (including
any impleaded parties) include both an Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that no Indemnifying Person shall, in connection with any proceeding
or related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such fees and expenses shall be reimbursed
as they are incurred. Any such separate firm for the Underwriters and such
control persons of Underwriters shall be designated in writing by X.X. Xxxxxx
Securities Inc. and any such separate firm for the Company, its directors, its
officers who sign the Registration Statement and such control persons of the
Company shall be designated in writing by the Company and any such separate firm
for the Selling Stockholders shall be designated in writing by such Selling
Stockholder. No Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, each Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
such Indemnifying Person agrees that it shall be liable for any settlement of
any proceeding effected without its
32
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding and does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any Indemnified Party.
If the indemnification provided for in the first four paragraphs of this
Section 7 is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appro priate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand shall be
deemed to be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by the Company and
the Selling Stockholders and the total underwriting discounts and the
commissions received by the Underwriters, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate public offering price of
the Shares. The relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Selling Stockholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Selling Stockholders or the
33
Underwriters were treated as one entity for such purposes) or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an Indemnified Person as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 7, in no event shall an Underwriter be required to contribute any amount
in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to con tribute pursuant to
this Section 7 are several in proportion to the respective number of Shares set
forth opposite their names in Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
The indemnity and contribution agreements contained in this Section 7 and
the representations and warranties of the Company and the Selling Stockholders
set forth in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its officers or directors or any other person
controlling the Company or the Selling Stockholders and (iii) acceptance of and
payment for any of the Shares.
8. Notwithstanding anything herein contained, this Agreement (or the
obligations of the several Underwriters with respect to the Option Shares) may
be terminated in the absolute discretion of the Representatives, by notice given
to the Company and the Selling Stockholders, if after the execution and delivery
of this Agreement and prior to the Closing Date (or, in the case of the Option
Shares, prior to the Additional Closing Date) (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange or the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of or guaranteed by the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking
34
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and which,
in the judgment of the Representatives, makes it impracticable to market the
Shares being delivered at the Closing Date or the Additional Closing Date, as
the case may be, on the terms and in the manner contemplated in the Prospectus.
9. This Agreement shall become effective upon the later of (x) execution
and delivery hereof by the parties hereto and (y) release of notification of the
effectiveness of the Registration Statement (or, if applicable, any post-
effective amendment) by the Commission.
If on the Closing Date or the Additional Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares
which it or they have agreed to purchase hereunder on such date, and the
aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Shares to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I bears to the aggregate
number of underwritten Shares set forth opposite the names of all such non-
defaulting Underwriters, or in such other proportions as the Representatives may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to Section 1 be increased pursuant to this Section 9 by an
amount in excess of one-tenth of such number of Shares without the written
consent of such Underwriter. If on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares which it or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date, and arrangements satisfactory to the Representatives, the Company
and, with respect to the Option Shares, the Selling Stockholders for the
purchase of such Shares are not made within 36 hours after such default, this
Agreement (or the obligations of the several Underwriters to purchase the Option
Shares, as the case may be) shall terminate without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholder. In any
such case either the Representative or the Company (and, in the case of the
Option Shares, the Selling Stockholders) shall have the right to postpone the
Closing Date (or, in the case of the Option Shares, the Additional Closing
Date), but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not
35
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement. If this Agreement shall be terminated
pursuant to this Section 9, the Company shall not then be liable to any
Underwriter except as provided in Sections 5(a)(xii) and 7 hereof.
10. If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the
Selling Stockholders to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason any of the Company or the
Selling Stockholders shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company and the Selling Stockholders agree to reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
expenses of its counsel) reasonably incurred by the Underwriter in connection
with this Agreement or the offering contemplated hereunder.
11. This Agreement shall inure to the benefit of and be binding upon the
Company, the Selling Stockholders and the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Shares from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representatives jointly or by X.X. Xxxxxx Securities Inc. on behalf of the
Underwriters, and any such action taken by the Representatives jointly or by
X.X. Xxxxxx Securities Inc. alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representatives, c/o X.X. Xxxxxx Securities Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (telefax: 212-648-5708); Attention: Syndicate Department. Notices to
the Company shall be given to it at EarthWeb Inc., 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (telefax: 212-725-6559); Attention: Xxxxx Math. Notices to the
Selling Stockholders shall be given to them c/o EarthWeb Inc. at the foregoing
address and telefax number.
13. This Agreement may be signed in counterparts, each of which shall be
an original and all of which together shall constitute one and the same
instrument.
36
14. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF
LAWS PROVISIONS THEREOF.
37
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
EARTHWEB INC.
By:
-----------------------------------
Name:
Title:
WARBURG, XXXXXX VENTURES, L.P.
By: Warburg, Xxxxxx & Co., its general
partner
By:
-----------------------------------
Name:
Title:
Selling Stockholders
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
As Attorney-in-Fact acting on behalf of each of the
indicated Selling Stockholders named in Schedule II to
this Agreement.
Accepted: ________________, 1999
X.X. Xxxxxx Securities Inc.
Bear Xxxxxxx & Co. Inc.
38
Xxxxx Xxxxx Xxxxxx & Company, LLC
Wit Capital Corporation
Acting severally on behalf of themselves and the several Underwriters listed in
Schedule I hereto.
By: X.X. Xxxxxx Securities Inc.
Acting on behalf of itself and the several Underwriters listed in Schedule I
hereto.
By:
-----------------------------------
Title:
39
SCHEDULE I
Underwriter Number of Shares
To Be Purchased
X.X. Xxxxxx Securities Inc. ...........
Bear Xxxxxxx & Co. Inc. ...............
Xxxxx Xxxxx Xxxxxx & Company, LLC .....
Wit Capital Corporation................
---------
---------
Total 1,300,000
SCHEDULE II
Number of Number of
Selling Stockholders Underwritten Shares Option Shares
-------------------- ------------------- -------------
* Attorney-in-fact: Xxxx X. Xxxxxx
SCHEDULE III
LOCK-UP AGREEMENTS
--------------------------
Stockholders/Optionholders
