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EXHIBIT 1.1
UNDERWRITING AGREEMENT
INTRALINKS, INC.
4,600,000 Shares of Common Stock
____________, 2000
J.P. Morgan Securities Inc.
Banc of America Securities LLC
William Blair & Company, L.L.C.
As representatives of the several
underwriters listed in Schedule I
hereto
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Ladies and Gentlemen:
.
IntraLinks, 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 4,600,000 shares of Common Stock, par value
$.01 per share, of the Company (the "Underwritten Shares") and, 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
690,000 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 "Stock".
William Blair & Company, L.L.C. ("William Blair") has agreed to reserve a
portion of the Shares to be purchased by it under this Agreement for sale to the
Company's directors, officers, employees, and business associates and other
parties related to the Company (collectively, the "Participants"), as set forth
in the Prospectus (as defined below) under the heading "Underwriting" (the
"Directed Share Program"). The Shares to be sold pursuant to the Directed Share
Program (the "Directed Shares") will be sold pursuant to this Agreement at the
public offering
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price. Any Directed Shares not orally confirmed for purchase by any
Participants by the end of the first business day after the date on which this
Agreement is executed will be offered to the public as set forth in the
Prospectus.
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 "Prospectus". If the Company files or has filed on the date hereof an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement") in connection with the transactions
contemplated hereby, then any reference herein to the term "Registration
Statement" shall be deemed to include such Rule 462 Registration Statement.
The Company hereby agrees 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, on 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 of
$[ ] (the "Purchase Price").
In addition, the Company agrees to issue and sell the Option Shares to the
several Underwriters as hereinafter provided and 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 Company 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 number
of Underwritten Shares set forth opposite such Underwriter's name on Schedule I
hereto and the denominator of which is the total number of Underwritten Shares
set forth in Schedule I hereto, for the sole purpose of covering over-allotments
(if any) in the sale of the Underwritten Shares by the several Underwriters.
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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 to the Company from J.P. Morgan
Securities Inc. on behalf of the several Underwriters. Such notice shall set
forth the aggregate 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 10 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 understands 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 by the Company to the Representatives,
in the case of the Underwritten Shares, at 10:00 a.m., New York City time, on
______, 2000, or at such other time on the same or such other date, not later
than the fifth Business Day thereafter, as J.P. Morgan Securities Inc. on behalf
of the several Underwriters and the Company may agree upon in writing or, in the
case of the Option Shares, on the date and at the time specified by J.P. Morgan
Securities Inc. 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 only 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. The certificates
for the Shares, if any, will be made available for inspection and packaging by
the
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Representatives at the office of J.P. Morgan 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.
4. The Company represents and warrants to each Underwriter that:
(a) 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; provided that
the foregoing representations and warranties 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;
(b) 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; the Registration Statement and Prospectus (and the
Registration Statement and Prospectus as amended or supplemented, if the
Company shall have furnished any amendments or supplements thereto)
comply, and will comply, 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, 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 and the Additional Closing Date, if any, 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; provided 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
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the Company in writing by such Underwriter through the Representatives
expressly for use therein;
(c) 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 consolidated cash flows for the periods
specified; 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, have been
prepared in accordance with the applicable requirements of the Securities
Act and are based upon good faith estimates and assumptions believed by
the Company to be reasonable;
(d) the statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
are reliable and accurate;
(e) 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, condition (financial or other),
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;
(f) 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
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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;
(g) 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;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) 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 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 relating to the
issuance of any capital stock of the Company or any such subsidiary, any
such convertible or exchangeable securities or any such rights, warrants
or options;
(j) the shares of Common Stock of the Company to be issued (i)
upon the conversion of the Series A convertible preferred stock, par
value $.01 per share, the Series B redeemable convertible preferred
stock, $.01 par value per share, the Series C redeemable convertible
preferred stock, par value $.01 per share, the Series D redeemable
convertible preferred
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stock, par value $.01 per share, the Series E redeemable convertible
preferred stock, $.01 par value per share, and the Series F redeemable
convertible preferred stock, par value $.01 per share, (ii) upon the
exercise of the warrants described in the Prospectus under "Certain
Relationships and Related Transactions," and (iii) upon the exercise of
the stock options described in the Prospectus under "Management--Stock
Incentive Plan" and any options granted outside the plan described
thereunder, have been duly authorized and, when issued, will be validly
issued, fully-paid and non-assessable, and the issuance of such shares
will not be subject to any pre-emptive or similar rights.
(k) 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
validly 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;
(l) 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 them or any of their respective properties is
bound, except for such 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, except for such violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries, taken as a whole; 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 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
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sale of the Shares or the consummation 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 and as may be required under state
securities or Blue Sky Laws or the by-laws or rules of the National
Association of Securities Dealers, Inc. ("NASD") in connection with the
purchase and distribution of the Shares by the Underwriters;
(m) 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;
(n) the Company and its subsidiaries have good and marketable
title in fee simple to all items of real property and 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 are described or
referred to in the Prospectus or such as do not materially affect the
value of the property of the Company and its subsidiaries, taken as a
whole, 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 them under valid existing and enforceable leases with such
exceptions as are not material to the Company and its subsidiaries, taken
as a whole, and do not interfere with the use made or proposed to be made
of such property and buildings by the Company or its subsidiaries;
(o) 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, clients or suppliers of the Company or
any entity
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with whom the Company has a strategic alliance or any of their
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;
(p) 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 except as described in the Prospectus;
(q) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company
Act");
(r) KPMG LLP, who have certified certain financial statements of
the Company and its subsidiaries, are independent public accountants as
required by the Securities Act;
(s) 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
them to the extent that such taxes have become due and are not being
contested in good faith; and, except as disclosed in the Registration
Statement and the Prospectus, there is no tax deficiency which has been
or might reasonably be expected to be asserted or threatened against the
Company or any subsidiary;
(t) 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;
(u) each of the Company and its subsidiaries owns, possesses or
has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has 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 its
properties and to carry on its business as conducted as of the date
hereof, and neither the Company nor any such subsidiary has received any
actual notice of any proceeding
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relating to revocation or modification of any such license, permit,
certificate, consent, order, approval or other authorization, except as
described in the Registration Statement and the Prospectus; and each of
the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of
the date hereof;
(v) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
any of its subsidiaries which are likely to have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(w) 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 affiliates for employees or former employees of the
Company and its 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"). 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. For each such plan which is
subject to the funding rules of Section 412 of the Code or Section 302 of
ERISA no "accumulated funding deficiency" as defined in Section 412 of
the Code has been incurred, whether or not waived, and the fair market
value of the assets of each such plan (excluding for these purposes
accrued but unpaid contributions) exceeded the present value of all
benefits accrued under such plan determined using reasonable actuarial
assumptions.
(x) each of the Company and its subsidiaries owns or possesses
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
its business in the manner described in the Prospectus, and the Company
has not received any notice of infringement or conflict with (and the
Company is not 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 necessary to conduct its business in the
manner described in the
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Prospectus do not, to the best knowledge of the Company, infringe or
conflict with any right or patent of any third party, or any discovery,
invention, product or process which is the subject of a patent
application filed by any third party, known to the Company, in a manner
which could have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(y) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (A) transactions
are executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (C) access to
assets is permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(z) all outstanding shares of Common Stock held by (a) the
Company's directors, (b) the Company's officers holding the rank of
senior vice president or above, or (c) holders of at least 0.5% of the
Company's common stock on a fully diluted basis (collectively, the
"Restricted Shareholders"), and all securities convertible into or
exercisable or exchangeable for Common Stock, are subject to valid,
binding and enforceable agreements (collectively, the "Lock-up
Agreements") substantially in the form attached hereto as Exhibit A;
(aa) the Company (A) has notified each Restricted Shareholder
holding currently outstanding option issued under the stock incentive
plan described in the Prospectus under "Management--Stock Incentive Plan"
(the "Option Plan") and each Restricted Shareholder who has acquired
shares of Common Stock pursuant to the exercise of any option granted
under the Option Plan that pursuant to the terms of the Lock-up
Agreements of such persons, none of such options or shares may be sold or
otherwise transferred or disposed of for a period of 180 days after the
date of the initial public offering of the Shares and (B) has imposed a
stop-transfer instruction with the Company's transfer agent in order to
enforce the foregoing lock-up provision imposed pursuant to the Lock-up
Agreements;
(bb) as of the date the Registration Statement becomes effective,
the Common Stock will be approved for quotation on the National
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Association of Securities Dealers Automated Quotations National Market
(the "Nasdaq National Market") upon official notice of issuance;
(cc) upon completion of the offering of the Shares contemplated
hereby, the Amended and Restated Shareholders' Agreement dated as of
January 24, 2000 shall cease to have any legal effect, except as provided
in Section 13.1 thereof;
(dd) the Company has no subsidiaries other than IntraLoan, Inc.,
IntraLinks, Ltd. and IntraLinks Pharma, Inc.;
(ee) the Registration Statement, the Prospectus and any preliminary
prospectus comply, and any further amendments or supplements thereto will
comply, with any applicable laws or regulations of foreign jurisdictions
in which the Prospectus or any preliminary prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
Directed Share Program;
(ff) no consent, approval, authorization, license or order of, or
registration or qualification of or with, any government, governmental
instrumentality or court other than such as have been obtained, is
required in connection with the offering of Directed Shares in any
jurisdiction where the Directed Shares are being offered, except such
consents, approvals, authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act and as may
be required under state securities or Blue Sky Laws or the by-laws or
rules of the NASD in connection with the purchase and distribution of the
Shares by the Underwriters; and
(gg) the Company has not offered, or caused William Blair to offer,
Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or service
provider of the Company to alter the customer's or service provider's
level or type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company
or its products.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) 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
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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;
(b) to deliver, at the expense of the Company, to the
Representatives four signed 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(e) below, to each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) as the Representatives
may reasonably request;
(c) 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;
(d) to advise the Representatives promptly, and to confirm such
advice in writing upon request, (i) when the Registration Statement has
become effective, (ii) when any amendment to the Registration Statement
has been filed or becomes effective, (iii) when any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof, (iv) of any request by the
Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for any additional
information, (v) 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, (vi) of the occurrence of any event, within the period
referenced in Section 5(e) 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 (vii) 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
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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;
(e) 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;
(f) to endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the 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;
(g) to make generally available to its security holders and to the
Representatives as soon as 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;
(h) as long as the Shares are outstanding, 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
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financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) for a period of 180 days after the date of the initial public
offering of the Shares, without the prior written consent of J.P. Morgan
Securities Inc. on behalf of the Underwriters, not to (i) 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, or file or cause to be filed a registration
statement (other than a registration statement on Form S-8 with respect
to shares issued under the plans described below or under other options
or warrants) in respect of, any shares of Stock or any securities
convertible into or exercisable or exchangeable for Stock or (ii) enter
into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by
delivery of Stock or such other securities, in cash or otherwise, other
than (i) the Shares to be sold hereunder, or (ii) any shares of Stock of
the Company issued upon the exercise of options granted under the stock
incentive plan or employee stock purchase plan described in the
Prospectus;
(j) 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";
(k) to use its best efforts to list for quotation the Shares on
the Nasdaq National Market;
(l) 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 (i) incident to the preparation,
issuance, registration, transfer, execution and delivery of the Shares,
including any transfer or other taxes payable thereon, (ii) 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), (iii) 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), (iv) in connection with the listing
of the Shares on the Nasdaq National Market,
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<PAGE>
(v) related to the filing with, and clearance of the offering by, the
National Association of Securities Dealers, Inc. (including fees of
counsel for the Underwriters and its disbursements), (vi) 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, (vii) any expenses incurred by the Company
in connection with a "road show" presentation to potential investors,
(viii) the cost of preparing stock certificates and (ix) the cost and
charges of any transfer agent and any registrar;
(m) to direct the transfer agent to place stop transfer orders on
any Directed Shares that have been sold to those Participants during the
three-month restricted period following the date of effectiveness of the
Registration Statement on sale, transfer, assignment, pledge or
hypothecation imposed by the NASD listed under its Interpretive Material
2110-1 on free-riding and withholding to the extent necessary to ensure
compliance with the three-month restricted period;
(n) to pay all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program; and
(o) to comply with all applicable securities and other applicable
laws, rules and regulations in each jurisdiction in which the Directed
Shares are offered in connection with the Directed Share Program.
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 of its 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
16
<PAGE>
the rules and regulations under the Securities Act and in accordance with
Section 5(a) hereof; and all requests for additional information shall
have been complied with to the satisfaction of the Representatives;
(b) the representations and warranties of the Company 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 the
Company 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 (iii) 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, other than issuances of Common
Stock pursuant to exercise of options or warrants described in the
Prospectus, 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, condition (financial
or other), management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, otherwise than as set forth in or contemplated by 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, from any employment or labor dispute, from any
dispute relating to the use of Intellectual Property, or from any court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus;
17
<PAGE>
(e) the Representatives shall have received on and as of the
Closing Date or the Additional Closing Date, as the case may be, 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 subsections (a), (b), (c) and
(d) of this Section (with respect to the respective representations,
warranties, agreements and conditions of the Company) and to the further
effect that there has not occurred, other than issuances of Common Stock
pursuant to exercise of options described in the Prospectus, 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, condition (financial and other),
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;
(f) Heller Ehrman White & McAuliffe, 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 its
jurisdiction of incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as
described in the Prospectus;
(ii) based solely on certificates of public officials, the
Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of
New York and ___________;
(iii) each of the Company's U.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, based solely on
certificates of public officials, has been duly qualified as a
foreign corporation and is in good standing under the laws of
___________; and all of the outstanding shares of capital stock of
each U.S. subsidiary have
18
<PAGE>
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, encumbrances, equities
or claims;
(iv) other than as set forth or contemplated in the
Prospectus, to the best of such counsel's knowledge, there are no
legal or governmental investigations, actions, suits or proceedings
pending or 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 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
business, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole; to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others; and such counsel does not know of any
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;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the authorized capital stock of the Company conforms
in all material respects as to legal matters to the description
thereof contained in the Prospectus;
(vii) the shares of capital stock of the Company outstanding
prior to the issuance of the Shares to be sold by the Company have
been duly authorized and are validly issued, fully paid and non-
assessable;
(viii) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and when delivered to and paid
for the Underwriters in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable
19
<PAGE>
and the issuance of the Shares is not subject to any preemptive or
similar rights;
(ix) the statements in the Prospectus under
"Business--Strategic Alliances and Collaborations",
"Business--Intellectual Property", "Management--Employment and Non-
Competition Agreements", "Management--Stock Incentive Plan",
"Certain Relationships and Related Transactions", "Shares Eligible
for Future Sale", "Description of Capital Stock" and "Underwriting"
and in the Registration Statement in Items 14 and 15, insofar as
such statements constitute a summary of the terms of the Stock,
documents or proceedings referred to therein, fairly present the
information called for with respect to such terms, documents or
proceedings;
(x) such counsel is of the opinion that the Registration
Statement and the Prospectus and any amendments and supplements
thereto (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
Securities Act and believes that (other than the financial
statements and related schedules therein, as to which such counsel
need express no belief) the Registration Statement and the
prospectus included therein at the time the Registration Statement
became effective did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and
that the Prospectus, as amended or supplemented, if applicable,
does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(xi) the issue and sale of the Shares being delivered on
the Closing Date or the Additional Closing Date, as the case may
be, 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 material agreement known to such counsel 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
20
<PAGE>
the Company or any of its subsidiaries is subject, nor will any
such action result in any violation of the provisions of (a) the
Certificate of Incorporation or the By-Laws of the Company, (b) any
applicable law or statute or any rule or regulation of any court or
governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties, or (c) any
order known to such counsel of any court or governmental agency or
body having jurisdiction over the Company, its subsidiaries or any
of their respective properties, except for such violations,
conflicts or breaches as would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(xii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
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 consents, approvals, authorizations, orders,
licenses, registrations or qualifications as have been obtained
under the Securities Act and as may be required under state
securities or Blue Sky laws or the by-laws or rules of the NASD in
connection with the purchase and distribution of the Shares by the
Underwriters;
(xi) 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" or entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act;
The opinion of Heller Ehrman White & McAuliffe described above shall be
rendered to the Underwriters at the request of the Company and shall so state
therein.
(g) William Frishberg, in-house counsel for the Company, shall have
furnished to the Representatives a 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 qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction other than its jurisdiction of
incorporation in which it owns or leases properties, or conducts
21
<PAGE>
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;
(ii) 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 it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified and 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,
encumbrances, equities or claims;
(ii) 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 best of such
counsel's knowledge, 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 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; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
and such counsel does not know of any 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;
22
<PAGE>
(iv) 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 instrument known to such counsel to which the Company
or any of its subsidiaries is a party or by which it or any of them
or any of their respective 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;
(v) each of the Company and its subsidiaries owns,
possesses or has obtained all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has
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 its properties and to carry on its
business as conducted as of the date of such opinion, and neither
the Company nor any such subsidiary 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, except as described in the Registration
Statement and the Prospectus; and each of the Company and its
subsidiaries is in compliance with all laws and regulations
relating to the conduct of its business as conducted as of the date
of the Prospectus;
(vi) each of the Company and its subsidiaries owns,
possesses or has the right to use the Intellectual Property
employed by it in connection with the business conducted by it as
of the date of such opinion; and
(vii) the Company and its subsidiaries have good and
marketable title in fee simple to all real property and 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 are described or referred to in the Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made and 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
23
<PAGE>
them 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.
The opinion of William Frishberg described above shall be rendered to the
Underwriters and shall so state therein.
In rendering such opinions as discussed in clauses (f) and (g) above of
this subsection, such counsel may rely (A) as to matters involving the
application of laws other than the laws of the United States, New York and the
General Corporation Law of the State of Delaware, 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. With respect to the
matters to be covered in Section 6(f)(x) above, counsel may state 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 and review and discussion of the contents thereof but is without
independent check or verification except as specified.
(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, KPMG 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
Davis Polk & Wardwell, 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
24
<PAGE>
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 quotation
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 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 certain Restricted Shareholders,
relating to sales and certain other dispositions of shares of 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 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 Securities Exchange
Act of 1934 (the "Exchange 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 by any untrue statement
or omission or alleged untrue statement or omission 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 Underwriter agrees, severally and not jointly, to indemnify and hold
harmless 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 to the same extent
as the foregoing indemnity from the Company to each Underwriter, but
25
<PAGE>
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 either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, 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 Person 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 Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has 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 the 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 the Indemnifying Person shall not, in connection with any
proceeding or related proceedings 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 J.P.
Morgan Securities Inc. and any such separate firm for the Company, its
directors, its officers who sign such Registration Statement and such control
persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not 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 written consent if (i) such settlement is
entered into more than 30 days after receipt by such
26
<PAGE>
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.
If the indemnification provided for in the first and second 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 paragraphs, 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 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
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriters on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the total underwriting
discounts and 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 on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company 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 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,
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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 contribute 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 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 and (iii) acceptance of and payment for any of the Shares.
8. The Company agrees to indemnify and hold harmless William Blair and
each person, if any, who controls William Blair within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act ("William
Blair Entities"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses incurred
in connection with any suit, action or proceedings or any claim asserted) caused
by any untrue statement or alleged untrue statement of a material fact contained
in any material prepared by or with the consent of the Company for distribution
to Participants in connection with the Directed Share Program, 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; or
(i) related to, arising out of, or in connection with the Directed Share
Program, provided that, the Company shall not be responsible under this
subparagraph (i) for any losses, claim, damages or liabilities (or expenses
relating thereto) that are finally
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judicially determined to have resulted from the bad faith or gross negligence of
William Blair Entities.
If any suit, action, proceeding (including any governmental investigation),
claim or demand shall be instituted involving any William Blair Entity in
respect of which indemnity may be sought pursuant to this Section 8, the William
Blair Entity seeking indemnity shall promptly notify the Company in writing and
the Company, upon request of the William Blair Entity, shall retain counsel
reasonably satisfactory to the William Blair Entity to represent the William
Blair Entity and any others the Company may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any William Blair Entity shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such William Blair Entity unless (i) the Company shall have agreed to
the retention of such counsel, (ii) the Company has failed within a reasonable
time to retain counsel reasonably satisfactory to the William Blair Entity or
(iii) the named parties to any such proceeding (including any impleaded parties)
include both the Company and the William Blair Entity and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The Company shall not, in respect of the
legal expenses of the William Blair Entities in connection with any proceeding
or related proceedings 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 William Blair Entities. Any such separate firm for the William Blair
Entities shall be designated in writing by William Blair. The Company shall not
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, the Company agrees to indemnify the William Blair Entities from
and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time a William Blair Entity
shall have requested the Company to reimburse it for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
Company agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more
than 30 days after receipt by the Company of the aforesaid request and (ii) the
Company shall not have reimbursed the William Blair Entity in accordance with
such request prior to the date of such settlement. The Company shall not,
without the prior written consent of William Blair, effect any settlement of any
pending or threatened proceeding in respect of which any William Blair Entity is
or could have been a party and indemnity could have been sought hereunder by
such William Blair Entity, unless such settlement includes an unconditional
release of the William Blair Entities from all liability on claims that are the
subject matter of such proceeding.
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31
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required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The remedies provided for in this Section 8 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 provisions contained in this Section 8 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 William
Blair Entity or any person controlling such William Blair Entity by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Directed Shares.
9. 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, 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, the American Stock Exchange, the NASD, 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 activities in the United States or 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.
10. 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
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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 10 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 and the Company 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. In any such case either the Representatives or the
Company 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 relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
11. 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 to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all of the
out-of-pocket expenses (including the fees and expenses of its counsel)
reasonably incurred by the Underwriters in connection with this Agreement and
the offering contemplated hereunder.
12. This Agreement shall inure to the benefit of and be binding upon
the Company, 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
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<PAGE>
any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
13. Any action by the Underwriters or the Representatives hereunder may
be taken by the Representatives jointly or by J.P. Morgan Securities Inc. alone
on behalf of the Underwriters or the Representatives, and any such action taken
by the Representatives jointly or by J.P. Morgan Securities Inc. 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 J.P. Morgan Securities
Inc., 60 Wall Street, New York, New York 10260 (telefax: 212-648-5705);
Attention: Syndicate Department. Notices to the Company shall be given to it at
1372 Broadway, Floor 12A, New York, New York 10018 (telefax: 212-543-7780);
Attention: James P. Dougherty, Chief Executive Officer.
14. 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.
15. 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.
If the foregoing is in accordance with your understanding, please sign and
return four counterparts hereof.
Very truly yours,
INTRALINKS, INC.
By:___________________________
Name:
Title:
Accepted:_________, 2000
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
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<PAGE>
WILLIAM BLAIR & COMPANY, L.L.C.
Acting severally on behalf of themselves
and the several Underwriters listed
in Schedule I hereto.
By: J.P. MORGAN SECURITIES INC.
By: _____________________________
Name:
Title:
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<PAGE>
SCHEDULE I
Number of Shares
Underwriter To Be Purchased
----------- ----------------
J.P. Morgan Securities Inc.............
Banc of America Securities LLC.........
William Blair & Company, L.L.C.........
____________
Total...............................
===========
<PAGE>
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
LOCK-UP AGREEMENT
_________________, 2000
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
WILLIAM BLAIR & COMPANY, L.L.C.
As Representatives of the Underwriters named in Schedule I to the Underwriting
Agreement referred to below
c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Re: IntraLinks, Inc. -- Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representatives of the several
Underwriters, propose to enter into an Underwriting Agreement (the "Underwriting
Agreement") with IntraLinks, Inc., a Delaware corporation (the "Company"),
providing for the public offering (the "Public Offering") by the several
Underwriters named in Schedule I to the Underwriting Agreement (the
"Underwriters"), of common stock of the Company (the "Securities"). Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in
the Underwriting Agreement.
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, and for other
good and valuable consideration, receipt of which is hereby acknowledged, the
undersigned hereby agrees that, without the prior written consent of J.P. Morgan
Securities Inc. on behalf of the Underwriters, the undersigned will not, during
the period ending 180 days after the date of the prospectus relating to the
Public Offering (the "Prospectus"), (1) offer, pledge, announce the intention to
sell, sell,
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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, $.01 per share par value, of the Company (the "Common Stock") or any
securities convertible into or exercisable or exchangeable for Common Stock
(including without limitation, Common Stock which may be deemed to be
beneficially owned by the undersigned in accordance with the rules and
regulations of the Securities and Exchange Commission and securities which may
be issued upon exercise of a stock option or warrant) or (2) enter into any swap
or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to: (1) transfers of shares of Common Stock made by reason of
the death of any individual (a) to the decedent's estate or personal
representative, (b) pursuant to the decedent's last Will and Testament, or (c)
by operation of law; and (2) subsequent transfers of any shares transferred by
reason of death of an individual in a manner described in clause (1) of this
sentence. In addition, the undersigned agrees that, without the prior written
consent of J.P. Morgan Securities Inc. on behalf of the Underwriters, it will
not, during the period ending 180 days after the date of the Prospectus, make
any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any security convertible into or exercisable or
exchangeable for Common Stock.
In furtherance of the foregoing, the Company, and any duly appointed
transfer agent for the registration or transfer of the securities described
herein, are hereby authorized to decline to make any transfer of securities if
such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Letter Agreement. All authority
herein conferred or agreed to be conferred and any obligations of the
undersigned shall be binding upon the successors, assigns, heirs or personal
representatives of the undersigned.
The undersigned understands that, if the Company notifies you in writing
that it does not intend to proceed with the Public Offering, or if the
Underwriting Agreement does not become effective, or if the Underwriting
Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Common Stock
to be sold thereunder, the undersigned shall be released from all obligations
under this Letter Agreement.
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The undersigned understands that the Underwriters are entering into the
Underwriting Agreement and proceeding with the Public Offering in reliance upon
this Letter Agreement.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
This lock-up agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to the conflict of laws
principles thereof.
Very truly yours,
---------------------------------
By:
-----------------------------
Name:
Title:
3
