<PAGE>
As filed with the Securities and Exchange Commission on February 11, 2000
Registration No. 333-95779
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
THE CORPORATE EXECUTIVE BOARD COMPANY
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 8742 52-2056410
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
---------------
The Corporate Executive Board Company
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 777-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------
Clay M. Whitson
The Corporate Executive Board Company
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 777-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
<TABLE>
<S> <C>
Steven R. Finley, Esq. Thomas R. Brome, Esq.
Gibson, Dunn & Crutcher LLP Cravath, Swaine & Moore
200 Park Avenue 825 Eighth Avenue
New York, N.Y. 10166 New York, N.Y. 10019
(212) 351-4000 (212) 474-1000
</TABLE>
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Commission, acting pursuant to such
Section 8(a) may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
------- ----------------------
<C> <S>
1.1 --Form of Underwriting Agreement.
3.1 --Second Amended and Restated Certificate of Incorporation.*
3.2 --Amended and Restated Bylaws.*
4.1 --Specimen Common Stock Certificate.*
5.1 --Opinion of Gibson, Dunn & Crutcher LLP.
10.1 --Employment Agreement, dated January 21, 1999, between the Company
and James J. McGonigle.*
10.2 --[Omitted]
10.3 --Employment Agreement, dated November 1, 1998, between the Company
and Clay M. Whitson.*
10.4 --Stock Option Agreement Pursuant to The Corporate Advisory Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and James J. McGonigle, as
amended on January 21, 1999.*
10.5 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
April 15, 1998, between the Company and Harold L. Siebert.*
10.6 --[Omitted]
10.7 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, dated as of
November 1, 1998, between the Company and Clay M. Whitson.*
10.8 --Stock Option Agreement #1 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Michael A. D'Amato.*
10.9 --Stock Option Agreement #2 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Michael A. D'Amato.*
10.10 --Stock Option Agreement #1 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Jeffrey D. Zients.*
10.11 --Stock Option Agreement #2 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Jeffrey D. Zients.*
10.12 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
June 1, 1998, between the Company and Sally Chang.*
10.13 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Derek C. van Bever, as
amended on July 21, 1998.*
10.14 --Form of Stock Option Agreement Pursuant to The Corporate Advisory
Board Company Stock-Based Incentive Compensation Plan, including
form of amendment.*
10.15 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, dated January 21, 1999, between the Company and James J.
McGonigle.*
10.16 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, effective as of April 15, 1998, between the Company and
Harold L. Siebert.*
</TABLE>
II-1
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
------- ----------------------
<C> <S>
10.17 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, dated November 1, 1998, between the Company and Clay M.
Whitson.*
10.18 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non- Solicitation and Work
Product, dated October 30, 1997, between the Company and Michael A.
D'Amato.*
10.19 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, dated October 30, 1997, between the Company and Jeffrey D.
Zients.*
10.20 --Form of Agreement Concerning Exclusive Services, Confidential
Information, Business Opportunities, Non-Competition, Non-
Solicitation and Work Product.*
10.21 --The Corporate Executive Board Company Stock-Based Incentive
Compensation Plan, adopted on October 31, 1997, as amended and
restated.*
10.21.1 --The Corporate Executive Board Company Stock-Based Incentive
Compensation Plan, adopted on October 31, 1997, as amended and
restated in February 1999.*
10.22 --Directors' Stock Plan.*
10.22.1 --Amended Directors' Stock Plan and Standard Terms and Conditions for
Director Non-Qualified Stock Options.*
10.23 --1998 Stock Option Plan.*
10.23.1 --1999 Stock Option Plan and Standard Terms and Conditions for 1999
Stock Option Plan Incentive Stock Options.*
10.24 --Cross-Indemnification Agreement, dated as of January 21, 1999,
between David G. Bradley and The Corporate Executive Board Company.*
10.25 --Promissory Note, dated October 31, 1998, between David G. Bradley
and The Corporate Executive Board Company.*
10.26 --Security Agreement, dated October 31, 1997, between David G. Bradley
and The Corporate Executive Board Company.*
10.27 --Letter Agreement, dated January 18, 1999, between The Corporate
Executive Board Company and David G. Bradley with respect to the
repayment of $6.5 million Promissory Note.*
10.28 --Administrative Services Agreement, dated as of October 31, 1997, as
amended and restated on July 21, 1998, between The Advisory Board
Company and The Corporate Executive Board Company.*
10.29 --Member Contracts Agreement, dated as of October 31, 1997, between
The Advisory Board Company and The Corporate Executive Board
Company.*
10.30 --Vendor Contracts Agreement, dated as of October 31, 1997, as amended
and restated on July 21, 1998, between The Advisory Board Company
and The Corporate Executive Board Company.*
10.31 --Non-Competition Agreement, effective as of January 1, 1999, among
The Advisory Board Company, The Corporate Executive Board Company
and David G. Bradley.*
10.32 --[Omitted]
10.33 --Distribution Agreement, dated as of October 31, 1997, between The
Corporate Executive Board Company and The Advisory Board Company.*
10.34 --Agreement of Lease, dated June 25, 1998, between The Corporate
Executive Board Company and The George Washington University.*
10.35 --Registration Rights Agreement, dated January 22, 1999, between The
Corporate Executive Board Company and David G. Bradley.*
10.36 --License Agreement, effective as of October 31, 1997, between The
Corporate Executive Board Company and The Advisory Board Company.*
10.37 --Letter agreement regarding the special bonus plan.*
10.38 --Amended and Restated "Liquid Markets" Agreement, dated August 20,
1997, between The Corporate Executive Board Company and Derek C. van
Bever, as amended on December 28, 1998.*
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
------- ----------------------
<C> <S>
10.39 --Letter to Michael A. D'Amato from the Chairman of The Corporate
Executive Board Company re Accelerated Vesting of Options.*
10.40 --Clarification Letter to Michael A. D'Amato from The Corporate
Executive Board Company re Stock Option Agreements.*
10.41 --Letter to Jeffrey Zients from David Bradley re Accelerated Vesting
of Options.*
10.42 --Clarification Letter to Jeffrey Zients from The Corporate Executive
Board Company re Stock Option Agreements.*
10.43 --Term Sheet for Director Non-Qualified Stock Options between Robert
C. Hall and The Corporate Executive Board Company.*
10.44 --Term Sheet for Director Non-Qualified Stock Options between David W.
Kenny and The Corporate Executive Board Company.*
10.45 --Term Sheet for Director Non-Qualified Stock Options between Stephen
G. Pagliuca and The Corporate Executive Board Company.*
10.46 --Term Sheet for Director Non-Qualified Stock Options between Jeffrey
D. Zients and The Corporate Executive Board Company.*
10.47 --Term Sheet for Director Non-Qualified Stock Options between Michael
A. D'Amato and The Corporate Executive Board Company, as amended on
January 27, 1999.*
21.1 --List of Subsidiaries of The Corporate Executive Board Company.*
23.1 --Consent of Gibson, Dunn & Crutcher LLP (included in its opinion
filed as Exhibit 5.1).
23.2 --Consent of Arthur Andersen LLP.**
24.1 --Power of Attorney.**
27 --Financial Data Schedule.**
</TABLE>
- --------
+To be filed by amendment.
* Incorporated by reference to the same exhibit to the registrant's
Registration Statement on Form S-1, declared effective by the Securities and
Exchange Commission on February 22, 1999 (Registration No. 333-59833).
**Previously filed.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the District of
Columbia, on February 11, 2000.
The Corporate Executive Board
Company
/s/ James J. McGonigle
By___________________________________
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James J. McGonigle Chief Executive Officer February 11, 2000
______________________________________ and Director (Principal
James J. McGonigle Executive Officer)
/s/ Clay M. Whitson Chief Financial Officer February 11, 2000
______________________________________ (Principal Financial
Clay M. Whitson Officer and Principal
Accounting Officer)
* Director February 11, 2000
______________________________________
Michael A. D'Amato
* Director February 11, 2000
______________________________________
Jeffrey D. Zients
* Director February 11, 2000
______________________________________
Harold L. Siebert
* Director February 11, 2000
______________________________________
Robert C. Hall
* Director February 11, 2000
______________________________________
David W. Kenny
* Director February 11, 2000
______________________________________
Stephen G. Pagliuca
</TABLE>
*By: /s/ Clay M. Whitson
-----------------------------
Clay M. Whitson
Attorney-in-fact
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
------- ----------------------
<C> <S>
1.1 --Form of Underwriting Agreement.
3.1 --Second Amended and Restated Certificate of Incorporation.*
3.2 --Amended and Restated Bylaws.*
4.1 --Specimen Common Stock Certificate.*
5.1 --Opinion of Gibson, Dunn & Crutcher LLP.
10.1 --Employment Agreement, dated January 21, 1999, between the Company
and James J. McGonigle.*
10.2 --[Omitted]
10.3 --Employment Agreement, dated November 1, 1998, between the Company
and Clay M. Whitson.*
10.4 --Stock Option Agreement Pursuant to The Corporate Advisory Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and James J. McGonigle, as
amended on January 21, 1999.*
10.5 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
April 15, 1998, between the Company and Harold L. Siebert.*
10.6 --[Omitted]
10.7 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, dated as of November
1, 1998, between the Company and Clay M. Whitson.*
10.8 --Stock Option Agreement #1 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Michael A. D'Amato.*
10.9 --Stock Option Agreement #2 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Michael A. D'Amato.*
10.10 --Stock Option Agreement #1 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Jeffrey D. Zients.*
10.11 --Stock Option Agreement #2 Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Jeffrey D. Zients.*
10.12 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of June
1, 1998, between the Company and Sally Chang.*
10.13 --Stock Option Agreement Pursuant to The Corporate Executive Board
Company Stock-Based Incentive Compensation Plan, effective as of
October 31, 1997, between the Company and Derek C. van Bever, as
amended on July 21, 1998.*
10.14 --Form of Stock Option Agreement Pursuant to The Corporate Advisory
Board Company Stock-Based Incentive Compensation Plan, including form
of amendment.*
10.15 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, dated January 21, 1999, between the Company and James J.
McGonigle.*
10.16 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, effective as of April 15, 1998, between the Company and
Harold L. Siebert.*
10.17 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, dated November 1, 1998, between the Company and Clay M.
Whitson.*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
------- ----------------------
<C> <S>
10.18 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non- Solicitation and Work
Product, dated October 30, 1997, between the Company and Michael A.
D'Amato.*
10.19 --Agreement Concerning Exclusive Services, Confidential Information,
Business Opportunities, Non-Competition, Non-Solicitation and Work
Product, dated October 30, 1997, between the Company and Jeffrey D.
Zients.*
10.20 --Form of Agreement Concerning Exclusive Services, Confidential
Information, Business Opportunities, Non-Competition, Non-
Solicitation and Work Product.*
10.21 --The Corporate Executive Board Company Stock-Based Incentive
Compensation Plan, adopted on October 31, 1997, as amended and
restated.*
10.21.1 --The Corporate Executive Board Company Stock-Based Incentive
Compensation Plan, adopted on October 31, 1997, as amended and
restated in February 1999.*
10.22 --Directors' Stock Plan.*
10.22.1 --Amended Directors' Stock Plan and Standard Terms and Conditions for
Director Non-Qualified Stock Options.*
10.23 --1998 Stock Option Plan.*
10.23.1 --1999 Stock Option Plan and Standard Terms and Conditions for 1999
Stock Option Plan Incentive Stock Options.*
10.24 --Cross-Indemnification Agreement, dated as of January 21, 1999,
between David G. Bradley and The Corporate Executive Board Company.*
10.25 --Promissory Note, dated October 31, 1998, between David G. Bradley
and The Corporate Executive Board Company.*
10.26 --Security Agreement, dated October 31, 1997, between David G. Bradley
and The Corporate Executive Board Company.*
10.27 --Letter Agreement, dated January 18, 1999, between The Corporate
Executive Board Company and David G. Bradley with respect to the
repayment of $6.5 million Promissory Note.*
10.28 --Administrative Services Agreement, dated as of October 31, 1997, as
amended and restated on July 21, 1998, between The Advisory Board
Company and The Corporate Executive Board Company.*
10.29 --Member Contracts Agreement, dated as of October 31, 1997, between
The Advisory Board Company and The Corporate Executive Board
Company.*
10.30 --Vendor Contracts Agreement, dated as of October 31, 1997, as amended
and restated on July 21, 1998, between The Advisory Board Company and
The Corporate Executive Board Company.*
10.31 --Non-Competition Agreement, effective as of January 1, 1999, among
The Advisory Board Company, The Corporate Executive Board Company and
David G. Bradley.*
10.32 --[Omitted]
10.33 --Distribution Agreement, dated as of October 31, 1997, between The
Corporate Executive Board Company and The Advisory Board Company.*
10.34 --Agreement of Lease, dated June 25, 1998, between The Corporate
Executive Board Company and The George Washington University.*
10.35 --Registration Rights Agreement, dated January 22, 1999, between The
Corporate Executive Board Company and David G. Bradley.*
10.36 --License Agreement, effective as of October 31, 1997, between The
Corporate Executive Board Company and The Advisory Board Company.*
10.37 --Letter agreement regarding the special bonus plan.*
10.38 --Amended and Restated "Liquid Markets" Agreement, dated August 20,
1997, between The Corporate Executive Board Company and Derek C. van
Bever, as amended on December 28, 1998.*
10.39 --Letter to Michael A. D'Amato from the Chairman of The Corporate
Executive Board Company re Accelerated Vesting of Options.*
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
No. Description of Exhibit
------- ----------------------
<C> <S>
10.40 --Clarification Letter to Michael A. D'Amato from The Corporate
Executive Board Company re Stock Option Agreements.*
10.41 --Letter to Jeffrey Zients from David Bradley re Accelerated Vesting
of Options.*
10.42 --Clarification Letter to Jeffrey Zients from The Corporate Executive
Board Company re Stock Option Agreements.*
10.43 --Term Sheet for Director Non-Qualified Stock Options between Robert
C. Hall and The Corporate Executive Board Company.*
10.44 --Term Sheet for Director Non-Qualified Stock Options between David W.
Kenny and The Corporate Executive Board Company.*
10.45 --Term Sheet for Director Non-Qualified Stock Options between Stephen
G. Pagliuca and The Corporate Executive Board Company.*
10.46 --Term Sheet for Director Non-Qualified Stock Options between Jeffrey
D. Zients and The Corporate Executive Board Company.*
10.47 --Term Sheet for Director Non-Qualified Stock Options between Michael
A. D'Amato and The Corporate Executive Board Company, as amended on
January 27, 1999.*
21.1 --List of Subsidiaries of The Corporate Executive Board Company.*
23.1 --Consent of Gibson, Dunn & Crutcher LLP (included in its opinion
filed as Exhibit 5.1).
23.2 --Consent of Arthur Andersen LLP.**
24.1 --Power of Attorney.**
27 --Financial Data Schedule.**
</TABLE>
- --------
+To be filed by amendment.
* Incorporated by reference to the same exhibit to the registrant's
Registration Statement on Form S-1, declared effective by the Securities and
Exchange Commission on February 22, 1999 (Registration No. 333-59833).
**Previously filed.
<PAGE>
The Corporate Executive Board Company
5,511,520 Shares
Common Stock
($.01 par value)
Underwriting Agreement
New York, New York
February ___, 2000
Salomon Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Friedman, Billings, Ramsey & Co., Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
David G. Bradley (the "Principal Selling Stockholder") and the other
Selling Stockholders listed in Schedule II (the "Other Selling Stockholders"
and, together with the Principal Selling Stockholder, the "Selling
Stockholders") propose to sell to the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you are acting as representatives (the
"Representatives"), an aggregate of 4,800,000 shares of Common Stock, $.01 par
value (the "Common Stock," being hereinafter called the "Underwritten
Securities") of The Corporate Executive Board Company, a Delaware corporation
(the "Company"). Certain of the Selling Stockholders also propose to grant to
the Underwriters options to purchase up to an aggregate of 711,520 additional
shares of Common Stock to cover over-allotments (the "Option Securities"; the
Option Securities, together with the Underwritten Securities, being hereinafter
called the "Securities"). Certain of the shares of Common Stock to be sold by
the Other Selling Stockholders hereunder (the "Exercise Shares") shall be issued
by the Company to the Other Selling Stockholders pursuant to the exercise of
certain options (the "Selling Stockholder Options").
<PAGE>
To the extent there are no additional Underwriters listed on Schedule
I other than you, the term Representatives as used in this Underwriting
Agreement shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural as the context requires.
The use of the neuter in this Underwriting Agreement shall include the feminine
and masculine wherever appropriate. Certain terms used in this Underwriting
Agreement are defined in Section 17 hereof.
1. Representations and Warranties.
-------------------------------
(i) The Company represents and warrants to, and agrees with, each
Underwriter as set forth below in this Section 1(i).
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the "Commission") a registration statement (file
number 333-95779) on Form S-1, including related preliminary prospectus,
for registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, including the
related preliminary prospectus, each of which has previously been furnished
to you. The Company will next file with the Commission either (1) prior to
the Effective Date of such registration statement, a further amendment to
such registration statement (including the form of final prospectus) or (2)
after the Effective Date of such registration statement, a final prospectus
in accordance with Rules 430A and 424(b). In the case of clause (2), the
Company has included in such registration statement, as amended at the
Effective Date, all information (other than Rule 430A Information) required
by the Act and the rules thereunder to be included in such registration
statement and the form of prospectus filed with such registration
statement. As filed, such amendment and form of final prospectus, or such
final prospectus, shall contain all Rule 430A Information, together with
all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the
<PAGE>
Company has advised you, prior to the Execution Time, will be included or
made therein.
(b) On the Effective Date, the Registration Statement did or will,
and when the Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date (as defined herein) and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), will not, and
on the date of any filing pursuant to Rule 424(b) and on the Closing Date
and any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
-------- -------
warranties as to the information contained in or omitted from the
Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in this
Underwriting Agreement or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) 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
full corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified would not
reasonably be expected to result in a material adverse effect on the
financial condition, prospects or results of operations of the Company.
<PAGE>
(d) The Company's authorized, issued and outstanding equity
capitalization is as set forth in the Prospectus; the capital stock of the
Company conforms in all material respects to the description thereof
contained in the Prospectus; the outstanding shares of Common Stock
(including the shares of Common Stock being sold pursuant to this
Underwriting Agreement by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid and nonassessable and the
Securities being sold by the Other Selling Stockholders upon exercise of
their options will, upon exercise of such options, be validly issued, fully
paid and nonassessable; the Securities being sold by the Selling
Stockholders have been approved for trading on the Nasdaq National Market
subject to official notice of issuance; the certificates for the Securities
are in valid and sufficient form; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other rights
to subscribe for the Securities; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase from the
Company, agreements or other obligations of the Company to issue, or rights
to convert any obligations of the Company into or exchange any securities
of the Company for, shares of capital stock of or ownership interests in
the Company are outstanding;
(e) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required.
(f) This Underwriting Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable in accordance with its terms.
(g) The Company is not an "investment company" required to be
registered under the Investment Company Act of 1940, as amended.
(h) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required to be obtained by the
Company in connection with the transactions contemplated herein, except
such as have been obtained under the Act and the filing of the Prospectus
pursuant to Rule 424(b).
<PAGE>
(i) None of the exercise of the Selling Stockholder Options, the
issue of the Exercise Shares by the Company, the sale of the Securities by
the Selling Stockholders or the fulfillment by the Company and the Selling
Stockholders of the terms hereof will conflict with, result in a breach or
violation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to, (i) the charter or by-laws
of the Company; (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which the Company is a
party or bound or to which its property is subject, or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to the Company
of any court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its properties (excluding for purposes of this paragraph (i) federal and
state securities laws and regulations).
(j) Except as set forth in the Prospectus, no holders of securities
of the Company have rights to the registration of such securities under the
Registration Statement.
(k) The financial statements and schedules of the Company included in
the Prospectus and the Registration Statement present fairly in all
material respects the financial condition, results of operations and cash
flows of the Company as of the dates and for the periods indicated, comply
as to form in all material respects with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The selected
financial data, including the data under the column "1999 Pro Forma", set
forth under the captions "Summary Financial Data" and "Selected Financial
Data" in the Prospectus and Registration Statement fairly present, on the
basis stated in the Prospectus and the Registration Statement, the
information included therein.
(l) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its property is pending or, to the best knowledge of the
Company, threatened that (i) could reasonably be expected to have a
material adverse effect on the performance of
<PAGE>
this Underwriting Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a material
adverse effect on the financial condition, prospects or results of
operations of the Company, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(m) The Company owns or leases all such properties as are necessary
for the conduct of its operations as presently conducted.
(n) The Company is not in violation or default of (i) any provision
of its charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties, as
applicable, which violation or default could reasonably be expected to have
a material adverse effect on the financial condition, prospects or results
of operations of the Company.
(o) To the best of the Company's knowledge, Arthur Andersen LLP, who
have certified certain financial statements of the Company and delivered
their report with respect to the audited financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(p) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
except in any case in which the failure so to file would not reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto)
and has paid all taxes required to be paid by it as shown on such returns
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any
<PAGE>
such assessment, fine or penalty that is currently being contested in good
faith or as would not reasonably be expected to have a material adverse
effect on the financial condition, prospects or results of operations of
the Company, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(q) No labor problem or dispute with the employees of the Company
exists or is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
principal suppliers, contractors or customers, that could reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Prospectus (exclusive of any supplement thereto).
(r) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the business in which it is engaged; all policies
of insurance insuring the Company or its business, assets, employees,
officers and directors are in full force and effect; the Company is in
compliance with the terms of such policies and instruments in all material
respects; and there are no material claims by the Company under any such
policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause; the Company has not been
refused any insurance coverage sought or applied for; and the Company has
no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not reasonably be expected to have a material adverse
effect on the financial condition, prospects or results of operations of
the Company, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(s) The Company possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct its business, and the Company
has not received any notice
<PAGE>
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate,
could reasonably be expected to have a material adverse effect on the
financial condition, prospects or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(u) The Company has not taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(v) The Company has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the United States Employee
Retirement Income Security Act of 1974 ("ERISA") and the regulations and
published interpretations thereunder with respect to each "plan" (as
defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company are eligible to
participate and each such plan is in compliance with the presently
applicable provisions of ERISA and such regulations and published
interpretations, except for any failure to fulfill any such obligations, or
failure to comply, that singly or in the aggregate would not reasonably be
expected to have a material adverse effect on the financial condition,
prospects or results of operations of the Company. The Company has not
incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the
<PAGE>
payment of premiums in the ordinary course) or to any such plan under Title
IV of ERISA, except for any such liability that would not reasonably be
expected to result in a material adverse effect on the financial condition,
prospects or results of operations of the Company.
(w) Except as set forth in or contemplated by the Registration
Statement and the Prospectus (exclusive of any amendment or supplement
thereto), subsequent to the respective dates as of which such information
is given in the Registration Statement and the Prospectus (exclusive of any
amendment or supplement thereto), (i) the Company has not incurred any
liability or obligation, direct or contingent, or entered into any
transaction, not in the ordinary course of business, that is material to
the Company, and (ii) there has not been any change in the capital stock,
or material increase in the short-term debt or long-term debt, of the
Company, or any material adverse change, or any development having or which
may reasonably be expected to have a material adverse change, in the
financial condition, prospects or results of operations of the Company,
whether or not arising from transactions in the ordinary course of
business.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
(ii) Each Selling Stockholder represents and warrants to, and agrees
with, each Underwriter that:
(a) This Underwriting Agreement has been duly executed and delivered
by such Selling Stockholder and constitutes a valid and binding obligation
of such Selling Stockholder enforceable in accordance with its terms.
(b) Such Selling Stockholder is, or, upon the exercise of such
Selling Stockholder's options, will be the lawful owner of the Securities
to be sold by such Selling Stockholder under this Underwriting Agreement
and upon sale and delivery of, and payment for, such Securities, as
provided herein, such Selling Stockholder will convey to the Underwriters
title to such Securities, free and clear of any adverse claims whatsoever.
<PAGE>
(c) Such Selling Stockholder has not taken, directly or indirectly,
any action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Securities.
(d) No consent, approval, authorization or order of any court or
governmental agency or body is required to be obtained or made by such
Selling Stockholder for the consummation by such Selling Stockholder of the
transactions contemplated herein, except such as may have been obtained
under the Act, the filing of the Prospectus pursuant to Rule 424(b) and
such other approvals as have been obtained.
(e) Neither the sale of Securities to the Underwriters by such
Selling Stockholder nor the fulfillment of the terms hereof by such Selling
Stockholder will conflict with, result in a breach or violation of, or
constitute a default under any law or the terms of any indenture or other
agreement or instrument to which such Selling Stockholder is a party or
bound, or any judgment, order or decree applicable to such Selling
Stockholder of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Stockholder.
(iii) The Principal Selling Stockholder represents and warrants to,
and agrees with, each Underwriter that except as set forth in the Prospectus, no
options, warrants or other rights to purchase from the Principal Selling
Stockholder, or agreements or other obligations of the Principal Selling
Stockholder to issue shares of capital stock of or ownership interests in the
Company are outstanding.
Any certificate signed by any Selling Stockholder and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by such Selling
Stockholder, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and
------------------
in reliance upon the representations and warranties set forth herein, each
Selling Stockholder agrees, severally and not jointly, to sell to the
Underwriters the number of Underwritten Securities set
<PAGE>
forth opposite the name of such Selling Stockholder in Schedule II hereto, and
each Underwriter agrees, severally and not jointly, to purchase from the Selling
Stockholders, at a purchase price of $[ ] per share, the number of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule I
hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties set forth herein, the Selling Stockholders listed
on Schedule IV to this Underwriting Agreement (the "Option Securities Selling
Stockholders") hereby grant an option to the several Underwriters to purchase,
severally and not jointly, the number of Option Securities listed beside each
such Option Securities Selling Stockholder's name on such Schedule IV at the
same purchase price of $[ ] per share as the Underwriters shall pay for
the Underwritten Securities. Said option may be exercised only to cover over-
allotments in the sale of the Underwritten Securities by the Underwriters. Said
option may be exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Prospectus upon written or
telegraphic notice by the Representatives to the Company and the Option
Securities Selling Stockholders setting forth the number of shares of the Option
Securities as to which the several Underwriters are exercising the option and
the settlement date. Should said Underwriters' option be exercised only in part
by the Underwriters, the number of Option Securities purchased from each Option
Securities Selling Stockholder shall be reduced rateably so that the ratio o the
number of Option Securities purchased from an Option Securities Selling
Stockholder to the total number of Option Securities purchased from all Option
Securities Selling Stockholders equals the ratio of the maximum number of Option
Securities listed on Schedule IV as being offered by such Option Securities
Selling Stockholder (on full exercise of the Underwriters' option) to the
maximum aggregate number of Option Securities purchasable by the Underwriters
from all of the Option Securities Selling Stockholders on full exercise of such
Underwriters' option. However, in the case of a partial exercise of the
Underwriters' option, you may make such adjustments to the number of Option
Securities to be purchased from each Option Securities Selling Stockholder (in
order to eliminate any fractional shares) as you in your absolute discretion
shall determine. The number of Option Securities to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Securities to be purchased by the several Underwriters as such
Underwriter is purchasing of the Underwritten Securities, subject to such
adjustments as you in
<PAGE>
your absolute discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
February [ ], 2000, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement among the Representatives, the
Selling Stockholders and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the
respective purchase prices of the Securities being sold by each of the Selling
Stockholders to or upon the order of the Selling Stockholders by wire transfer
payable in same-day funds to the accounts specified by the Selling Stockholders.
Delivery of the Underwritten Securities and the Option Securities shall be made
through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
Each Selling Stockholder will pay all applicable state transfer taxes,
if any, involved in the transfer to the several Underwriters of the Securities
to be purchased by them from such Selling Stockholder, and the respective
Underwriters will pay any additional stock transfer taxes involved in further
transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Selling Stockholders will
deliver the Option Securities (at the expense of the Selling Stockholders) to
the Representatives, at 388 Greenwich Street, New York, New York, on the date
specified by the Representatives (which shall be within three Business Days
after exercise of said option) for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Selling Stockholders by wire transfer payable in same-day funds to the accounts
specified by the Selling Stockholders. If settlement for the Option Securities
occurs after the Closing Date, the Company and the Selling Stockholders will
deliver to the Representatives on the settlement date for
<PAGE>
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
-----------
(i) The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission, or transmitted by a
means reasonably calculated to result in filing with the Commission,
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives of
such timely filing. The Company will promptly advise the Representatives
(1) when the Registration Statement, if not effective at the Execution
Time, and any amendment thereto, shall have become effective; (2) when the
Prospectus, and any supplement thereto, shall have been filed (if required)
with the Commission pursuant to Rule 424(b) or when any Rule 462(b)
Registration Statement shall have been filed with the Commission; (3) when,
prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective; (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement,
<PAGE>
or any Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information; (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose; and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act in connection with the offering of
the Securities, any event occurs as a result of which the Prospectus as
then supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the rules
thereunder, the Company promptly will (1) notify the Representatives of any
such event; (2) prepare and file with the Commission, subject to the second
sentence of paragraph (i)(a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance;
and (3) supply any supplemented Prospectus to you in such quantities as you
may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Prospectus and the Prospectus and
any
<PAGE>
supplement thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives reasonably may designate, will maintain such qualifications
in effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to do
--------
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will not, without the prior written consent of
Salomon Smith Barney Inc., for a period of 90 days following the Execution
Time, offer, sell or contract to sell or otherwise dispose of (or enter
into any transaction which is designed to, or might reasonably be expected
to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, or announce the
offering of, or file a Registration Statement with the Commission in
respect of, any other shares of Common Stock or any securities convertible
into, or exercisable or exchangeable for, shares of Common Stock; provided,
--------
however, that the Company may file one or more registration statements on
-------
Form S-8 and may issue and sell Common Stock or make any awards pursuant to
any employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the Execution Time and the
Company may issue Common Stock issuable upon the conversion of securities
or the exercise of warrants outstanding at the Execution Time and the
Company may issue shares of Common Stock or securities convertible into, or
exercisable or exchangeable for, shares of Common Stock in connection with
an acquisition of or merger with another corporation or the acquisition of
assets or properties thereof, provided, that the holders of any such
--------
securities shall be subject to the transfer restrictions set forth in
Section 5(ii)(a) hereof.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to
<PAGE>
cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(ii) Each Selling Stockholder agrees with the several Underwriters
that:
(a) Such Selling Stockholder will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file (or participate in
the filing of) a registration statement with the Commission in respect of,
or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Exchange
Act with respect to, any shares of Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for such Common
Stock, or publicly announce an intention to effect any such transaction,
for a period of 90 days after the date of this Underwriting Agreement,
other than sales, transfers or other distributions in transactions that are
not required to be registered under the Act, including charitable
contributions, gifts and sales to third parties, provided that the
--------
transferee agrees to be bound by a restriction on further transfers
substantially similar to the restriction set forth in this Section
5(ii)(a).
(b) Such Selling Stockholder will not take any action designed to or
which has constituted or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(c) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, so long as delivery
of a prospectus relating to the Securities by an underwriter or dealer may
be required under the Act, of any change in information in the Registration
Statement or the Prospectus relating to the Selling Stockholder.
(d) Such Seller Stockholder will pay the costs and expenses relating
to the following matters in the same proportion as the number of Securities
sold by such Selling Stockholder bears to the total number of Securities
sold by all of the Selling Stockholders:
<PAGE>
(i) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements
and exhibits thereto), Preliminary Prospectus, the Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage and air freight charges) of such copies of
the Registration Statement, Preliminary Prospectus, the Prospectus, and all
amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Securities; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Securities, including any stamp or
transfer taxes in connection with the issuance of the Exercise Shares or
the sale of the Securities by the Selling Stockholders; (iv) the printing
(or reproduction) and delivery of this Underwriting Agreement and all other
agreements or documents printed (or reproduced) and delivered in connection
with the offering of the Securities; (v) the registration of the Securities
under the Exchange Act and the listing of the Securities on the Nasdaq
National Market; (vi) any registration or qualification of the Securities
for offer and sale under the securities laws of the several states
(including filing fees and the reasonable fees and expenses of counsel for
the Underwriters relating to such registration and qualification); (vii)
any filings required to be made with the National Association of Securities
Dealers, Inc. (including filing fees); (viii) the transportation and other
expenses incurred by or on behalf of Company representatives in connection
with presentations to prospective purchasers of the Securities; (ix) the
fees and expenses of the Company's accountants and the fees and expenses of
counsel (including local and special counsel) for the Company and the
Selling Stockholders; and (x) all other costs and expenses incident to the
performance by the Company and the Selling Stockholders of their
obligations under this Underwriting Agreement.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company and the Selling Stockholders made in any certificates pursuant to
the
<PAGE>
provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM New
York City time on the date of determination of the public offering price, if
such determination occurred at or prior to 3:00 PM New York City time on such
date or (ii) 9:30 AM on the Business Day following the day on which the public
offering price was determined, if such determination occurred after 3:00 PM New
York City time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, will be filed, or transmitted by a means reasonably calculated to
result in filing with the Commission, in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened by the Commission.
(b) The Company shall have caused Gibson, Dunn & Crutcher LLP,
counsel for the Company, to have furnished to the Representatives their opinion,
dated the Closing Date and addressed 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 General Corporation Law of the
State of Delaware, with corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of the States of
California and New York and the District of Columbia;
(ii) the Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the shares
of Common Stock underlying the Selling Stockholder Options have been duly
authorized; the outstanding shares of Common Stock (including the
Securities being sold under the Underwriting Agreement by the Selling
Stockholders) have been duly authorized and validly issued and are fully
paid and nonassessable; the holders of outstanding Shares of
<PAGE>
Common Stock are not entitled to preemptive or other rights to subscribe
for the Securities;
(iii) such counsel has not been engaged by the Company to give
substantive attention to, or to represent it in connection with, any
pending or threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or its property of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the Prospectus;
(iv) the Registration Statement has become effective under the Act;
any required filing of the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made, or the Prospectus and any
supplements thereto have been transmitted by a means reasonably calculated
to result in filing with the Commission, in the manner and within the time
period required by Rule 424(b); to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been
issued by the Commission and, to the best of such counsel's knowledge, no
proceedings for that purpose have been instituted or threatened;
(v) this Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Company is not an "investment company" required to be
registered under the Investment Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order of
any court or governmental agency or body is required to be obtained or made
by the Company under the laws of the United States of America in connection
with the sale of the Securities to the Underwriters in the manner
contemplated in this Underwriting Agreement, except such as have been
obtained under the Act and such other approvals (specified in such opinion)
as have been obtained; and
(viii) none of the exercise of the Options, the issue of the Exercise
Shares, the sale of the Securities by the Selling Stockholders, or the
fulfillment by the Company and the Selling Stockholders of the terms of
this Underwriting Agreement will conflict with, result in a breach or
violation of or imposition of any lien, charge or
<PAGE>
encumbrance upon any property or assets of the Company or its subsidiaries
pursuant to, (a) the charter or by-laws of the Company, (b) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument identified to such counsel in a certificate by the Company as
being material to which the Company is a party or bound or to which its
property is subject, or (c) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties (excluding
for purposes of this paragraph (viii) federal and state securities laws and
regulations).
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent auditors of the Company and your
representatives and counsel at which the contents of the Registration Statement
and the Prospectus were discussed. Such counsel also may state that because the
purpose of their professional engagement was not to establish or confirm factual
matters and because the scope of their examination of the affairs of the Company
did not permit them to verify the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus, they are
not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus. Such counsel also shall state that, on the basis
of the foregoing, except for the financial statements and schedules and other
financial and statistical data included therein, as to which such counsel need
express no opinion or belief: (a) such counsel is of the opinion that the
Registration Statement at the time it became effective appeared on its face to
comply as to form in all material respects with the applicable requirements of
the Act and the rules thereunder; and (b) no facts have come to such counsel's
attention that lead such counsel to believe that (i) 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 (ii) the Prospectus as of the
date thereof and as of the date of such opinion contained or contain an untrue
statement of a material fact or omitted or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
<PAGE>
under which they were made, not misleading. On the basis of the foregoing, no
facts have come to such counsel's attention that lead such counsel to believe
that (i) there are any outstanding options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company, except as set forth in the Prospectus or
(ii) there is any franchise, contract or other document of a character required
to be described in the Registration Statement or Prospectus, or to be filed as
an exhibit thereto, which is not described or filed as required.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the Company
and public officials. Reference to the Prospectus in this paragraph (b) include
any supplements thereto at the Closing Date.
(c) The Selling Stockholders shall have caused __________________,
counsel for the Selling Stockholders, to have furnished to the Representatives
their opinion dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) to the knowledge of such counsel, the Underwriting Agreement has
been duly executed and delivered by the Selling Stockholders;
(ii) to the knowledge of such counsel, the delivery by each Selling
Stockholder to the several Underwriters of certificates for the Securities
being sold under the Underwriting Agreement by such Selling Stockholder
against payment therefor as provided in the Underwriting Agreement, will
pass title to such Securities to the several Underwriters, free and clear
of all adverse claims whatsoever;
(iii) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental agency or body is
required for the sale of the Securities by the Selling Stockholders to the
Underwriters pursuant to the Underwriting Agreement, except such as may
have been obtained under the Act and such other approvals as have been
obtained; and
(iv) neither the sale of the Securities by the Selling Stockholders to
the Underwriters nor the fulfillment of the terms hereof by any Selling
<PAGE>
Stockholder will conflict with, result in a breach or violation of, or
constitute a default under any law or the terms of any indenture or other
agreement or instrument known to such counsel and to which any Selling
Stockholder is a party or bound, or any judgment, order or decree known to
such counsel to be applicable to any Selling Stockholder of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over any Selling Stockholder.
In rendering such opinion, such counsel may rely as to matters of fact, to the
extent they deem proper, on certificates of the Selling Stockholders and public
officials.
(d) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and sale
of the Securities, the Registration Statement, the Prospectus (together with any
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company and each Selling Stockholder shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chief Executive Officer and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Prospectus, any supplements to the Prospectus
and this Underwriting Agreement and that:
(i) the representations and warranties of the Company in this
Underwriting Agreement are true and correct in all material respects on and
as of the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Company's knowledge, threatened; and
<PAGE>
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus (exclusive of any supplement
thereto).
(f) Each Selling Stockholder shall have furnished to the
Representatives a certificate, signed by such Selling Stockholder, dated the
Closing Date, to the effect that (i) the signer of such certificate has
carefully examined the Registration Statement, the Prospectus, any supplement to
the Prospectus, this Underwriting Agreement, (ii) the representations and
warranties of each Selling Stockholder in this Underwriting Agreement are true
and correct in all material respects on and as of the Closing Date to the same
effect as if made on the Closing Date and (iii) the Selling Stockholder has
complied with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date.
(g) The Company shall have caused Arthur Andersen LLP to have
furnished to the Representatives, at the Execution Time and at the Closing Date,
letters, dated respectively as of the Execution Time and as of the Closing Date,
in form and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the applicable
published rules and regulations thereunder, and stating in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included in the Registration Statement and the
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related published rules and regulations;
(ii) on the basis of carrying out certain specified procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of the minutes
of the meetings of the stockholders, directors and any committees of the
Company; and inquiries of certain officials of the Company who have
responsibility for financial and
<PAGE>
accounting matters of the Company as to transactions and events subsequent
to December 31, 1999, nothing came to their attention which caused them to
believe that:
(1) with respect to the period subsequent to December 31, 1999,
there were any changes, at a specified date not more than five days
prior to the date of the letter, in the long-term debt of the Company
or capital stock of the Company or decreases in the stockholder's
equity of the Company as compared with the amounts shown on the
December 31, 1999, balance sheet included in the Registration
Statement and the Prospectus, or for the period from January 1, 2000
to such specified date there were any decreases, as compared with the
corresponding period in the preceding fiscal quarter, in net revenues
or income before income taxes or in total or per share amounts of net
income, income from operations and interest income of the Company,
except in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; and
(2) the information included in the Registration Statement and
Prospectus in response to Regulation S-K, Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information) and Item 402
(Executive Compensation) is not in conformity with the applicable
disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting, financial
or statistical information derived from the general accounting records of
the Company) set forth in the Registration Statement and the Prospectus,
including the information set forth under the captions "Prospectus
Summary", "Risk Factors","Capitalization", "Selected Financial Data",
"Management's Discussion and Analysis of Results of Financial Condition and
Results of Operation", "Business" and "Description of Capital Stock" in the
Prospectus, agrees with the accounting records of the
<PAGE>
Company, excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (g) include any supplement
thereto at the date of the letter.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter or
letters referred to in paragraph (g) of this Section 6 or (ii) any change, or
any development involving a prospective change, in or affecting the financial
condition or results of operations of the Company, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(i) The Securities shall have been listed and admitted and authorized
for trading on the Nasdaq National Market, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(j) On or prior to the Execution Time, the National Association of
Securities Dealers, Inc. shall have approved the Underwriters' participation in
the distribution of the Securities to be sold by the Selling Stockholders.
(k) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from each
person listed on Schedule III hereto.
(l) Prior to the Closing Date, the Company and the Selling
Stockholders shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may reasonably
request.
(m) The Representatives shall be reasonably satisfied with the terms
of all stockholders agreements and other agreements between the Company and its
stockholders that (i) have not been received by or made available to the
<PAGE>
Representatives prior to the Execution Time, (ii) are entered into after the
Execution Time or (iii) are amended after the Execution Time.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this
Underwriting Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Underwriting Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters, this Underwriting Agreement and all
obligations of the Underwriters under this Underwriting Agreement, or, in the
case of any condition to the purchase of Option Securities on a settlement date
which is after the Closing Date, the obligations of the several Underwriters to
purchase the relevant Option Securities, may be terminated by the
Representatives at any time at or prior to the Closing Date or such settlement
date, as applicable. Notice of such cancelation shall be given to the Company
and each Selling Stockholder in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the offices of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019,
on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10(i) hereof or because of any
refusal, inability or failure on the part of the Company or any Selling
Stockholder to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Salomon Smith Barney Inc. on demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or
<PAGE>
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, or in any Preliminary Prospectus or in the
Prospectus, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
-------- -------
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Selling Stockholder severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls the Company or any
Underwriter within the meaning of either the Act or the Exchange Act and each
other Selling Stockholder, if any, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such Selling
Stockholder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Selling Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act and each Selling
Stockholder, to the same extent as the foregoing indemnity to each Underwriter,
<PAGE>
but only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company and each
Selling Stockholder acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities and, under the
heading "Underwriting", (i) the sentences related to concessions and
reallowances and (ii) the paragraph related to stabilization, syndicate covering
transactions and penalty bids in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(d) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a), (b) or (c) above unless and to the extent it did
not otherwise learn of such action and such failure results in the forfeiture by
the indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a), (b) or (c) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
- -------- -------
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that
<PAGE>
there may be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party, (iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(e) In the event that the indemnity provided in paragraph (a), (b) or
(c) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Selling Stockholders and
the Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending the same) (collectively "Losses")
to which the Company, each of the Selling Stockholders and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative fault of the Company, each of the Selling Stockholders and the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations; provided,
--------
however, that in no case shall any Underwriter (except as may be provided in any
- -------
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company, the Selling Stockholders or the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity to correct
or prevent such untrue statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and equitable
if contribution were
<PAGE>
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (f), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (e).
(f) The liability of each Selling Stockholder under such Selling
Stockholder's representations and warranties contained in Section 1 hereof and
under the indemnity and contribution agreements contained in this Section 8
shall be limited to an amount equal to the public offering price of the
Securities sold by such Selling Stockholder to the Underwriters.
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Underwriting Agreement, the remaining Underwriters shall be obligated severally
to take up and pay for (in the respective proportions which the amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
-------- -------
aggregate amount of Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate amount of
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, this Underwriting Agreement will terminate without liability
to any nondefaulting Underwriter, the Selling Stockholders or the Company. In
the event of a default by any Underwriter as set forth in this Section 9,
<PAGE>
the Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Underwriting Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company, the Selling Stockholders and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
10. Termination. This Underwriting Agreement shall be subject to
------------
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the Nasdaq National Market, (ii) trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established on such Exchange or National Market, (iii) a banking moratorium
shall have been declared either by Federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities, declaration
by the United States of America of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of each Selling Stockholder and of the Underwriters set
forth in or made pursuant to this Underwriting Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter, any Selling Stockholder or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive the termination of this Underwriting Agreement and delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancelation of this Underwriting Agreement.
12. Notices. All communications under this Underwriting Agreement
--------
will be in writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telefaxed to the Salomon Smith
Barney Inc., General Counsel (fax no. (212) 816-7912)
<PAGE>
and confirmed to such General Counsel at Salomon Smith Barney Inc., 388
Greenwich Street, New York, New York, 10013, Attention: General Counsel; or, if
sent to the Company or any Selling Stockholder, will be mailed, delivered or
telefaxed to (202) 777-5100 and confirmed to it at 2000 Pennsylvania Avenue,
N.W., Washington, D.C. 20006, Attention: Legal Department.
13. Successors. This Underwriting Agreement will inure to the
-----------
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Underwriting Agreement will be governed by
---------------
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Underwriting Agreement may be signed in one
------------
or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same agreement.
16. Headings. The section headings used in this Underwriting
---------
Agreement are for convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Underwriting Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Underwriting
Agreement is executed and delivered by the parties hereto.
"Losses" shall have the meaning set forth in 8(f).
"Other Selling Stockholders" shall mean all Selling Stockholders
listed in Schedule II other than David G. Bradley.
"Preliminary Prospectus" shall mean any preliminary prospectus with
respect to the offering of the Securities referred to in paragraph 1(i)(a)
above and any preliminary prospectus with respect to the offering of the
Securities included in the Registration Statement at the Effective Date
that omits Rule 430A Information.
"Principal Selling Stockholder" shall mean David G. Bradley.
"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Representatives" shall mean the addressees of this Underwriting
Agreement.
<PAGE>
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a)(i) hereof.
"Securities" shall mean the Underwritten Securities and the Option
Securities.
"Selling Stockholders" shall mean the persons named on Schedule II to
this Underwriting Agreement.
"Underwriting Agreement" shall mean this agreement relating to the
sale of the Securities by the Selling Stockholders to the Underwriters.
"Underwriters" shall mean the several underwriters named in Schedule I
to this Underwriting Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
The Corporate Executive Board Company
By:
-----------------------------------
Name:
Title:
[Selling Shareholders]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
<PAGE>
Salomon Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Friedman, Billings, Ramsey & Co., Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
By: Salomon Smith Barney Inc.
By:
-----------------------------------
Name:
Title:
For themselves and the other
several Underwriters
named in Schedule I to the foregoing
Underwriting Agreement.
SCHEDULE I
----------
<TABLE>
<CAPTION>
Underwriters Number of
- ------------ ---------
Underwritten Securities to
--------------------------
be Purchased
------------
<S> <C>
Salomon Smith Barney Inc.................................
Donaldson, Lufkin & Jenrette Securities Corporation......
Friedman, Billings, Ramsey & Co., Inc....................
Goldman, Sachs & Co......................................
Merrill Lynch, Pierce, Fenner & Smith Incorporated.......
--------------------------
Total.......................................... 4,800,000
==========================
</TABLE>
<PAGE>
SCHEDULE II
-----------
<TABLE>
<CAPTION>
Selling Stockholders: Number of Underwritten
- ----------------------- ----------------------
Securities to be Sold
---------------------
<S> <C>
----------------------
Total.......................... 4,800,000
======================
</TABLE>
<PAGE>
SCHEDULE III
------------
Persons Executing Letters
-------------------------
Pursuant to Section 6(k)
------------------------
of the Underwriting Agreement
-----------------------------
SCHEDULE IV
-----------
Maximum
Number of
Name Option Securities
- ---- -----------------
Total 711,520
-----
<PAGE>
EXHIBIT A
[Letterhead of officer or director of
the Company or of Selling Stockholder]
The Corporate Executive Board Company
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Public Offering of Common Stock
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February , 2000
Salomon Smith Barney Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Friedman, Billings, Ramsey & Co., Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
As Representatives of the several Underwriters,
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between The Corporate
Executive Board Company, a Delaware corporation (the "Company"), and each of
you as representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock, $.01 par value (the "Common
Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Salomon Smith Barney Inc., offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file (or participate in the
filing of) a registration statement with the Securities and Exchange Commission
in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder with respect to,
any shares of capital stock of the Company or any securities convertible into or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreements,
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other than shares of Common Stock disposed of as bona fide gifts approved by
Salomon Smith Barney Inc.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
By:
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Name:
Address:
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Exhibit 5.1
[Gibson, Dunn & Crutcher LLP letterhead]
February 8, 2000
(212) 351-4000 C 18815-00006
The Corporate Executive Board Company
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Re: The Corporate Executive Board Company -
Registration Statement on Form S-1 (File No. 333-95779)
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-1, File No. 333-95779
(as amended, the "Registration Statement"), of The Corporate Executive Board
Company, a Delaware corporation (the "Company"), filed with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act of 1933,
as amended (the "Securities Act"), in connection with the public offering of up
to 5,750,000 shares (including shares to cover the underwriters' over-allotment
option) of the Company's Common Stock, par value $0.01 per share (the "Common
Stock"), by (i) certain existing holders of Common Stock (the "Selling
Stockholders") and (ii) certain holders of options to purchase shares of Common
Stock (the "Selling Optionholders"), which shares will be issued by the Company
upon the exercise of options by such Selling Optionholders. The shares to be
offered and sold by the Selling Stockholders and the Selling Optionholders are
collectively referred to as the "Shares."
We have examined the originals, or photostatic or certified copies, of such
records of the Company and certificates of officers of the Company and of public
officials and such other documents as we have deemed relevant and necessary as
the basis for the opinions set forth below. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
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February 8, 2000
Page 2
Based upon the foregoing examination and in reliance thereon, and subject
to the assumptions stated and in reliance on statements of fact contained in the
documents that we have examined, we are of the opinion that (i) the Shares to be
sold by the Selling Stockholders have been validly issued and are fully paid and
non-assessable, and (ii) the Shares to be sold by the Selling Optionholders,
when issued against payment therefor, will be validly issued, fully paid and
non-assessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the laws of the United States of America and the General
Corporation Law of the State of Delaware. In rendering this opinion, we assume
no obligation to revise or supplement this opinion should current laws, or the
interpretations thereof, be changed.
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption
"Legal Matters" in the Registration Statement and the prospectus which forms a
part thereof. In giving these consents, we do not thereby admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
