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EXHIBIT 1.1
__ Shares
REGISTER.COM, INC.
Common Stock
($.0001 Par Value)
UNDERWRITING AGREEMENT
August , 2000
( __ pm)
Deutsche Bank Securities Inc.
Thomas Weisel Partners LLC
Banc of America Securities LLC
Legg Mason Wood Walker, Incorporated
As Representatives of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
One South Street
Baltimore, Maryland 21202
Ladies and Gentlemen:
Register.com, Inc., a Delaware corporation (the "Company"),
proposes to sell to the several underwriters (the "Underwriters") named in
Schedule I hereto, for whom you are acting as representatives (the
"Representatives"), an aggregate of 500,000 shares (the "Primary Shares") of the
Company's Common Stock, $.0001 par value (the "Common Stock"). The selling
stockholders named in Schedule II hereto (the "Selling Stockholders") propose to
sell to the Underwriters an aggregate of 3,500,000 shares (the "Secondary
Shares") of the Common Stock. The respective amounts of the Primary Shares and
Secondary Shares (together, the "Firm Shares") to be so purchased by the several
Underwriters are set forth opposite their names in Schedule I hereto. The
Company also proposes to sell at the Underwriters' option (the "Over-Allotment
Option") an aggregate of up to 600,000 additional shares of the Company's Common
Stock (the "Option Shares") as set forth below.
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As the Representatives, you have advised the Company and the
Selling Stockholders (a) that you are authorized to enter into this Agreement on
behalf of the several Underwriters, and (b) that the several Underwriters are
willing, acting severally and not jointly, to purchase the numbers of Firm
Shares set forth opposite their respective names in Schedule I, plus their pro
rata portion of the Option Shares if you elect to exercise the Over-Allotment
Option in whole or in part for the accounts of the several Underwriters. The
Firm Shares and the Option Shares (to the extent the aforementioned option is
exercised) are herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and
of the interests of the parties in the transactions contemplated hereby, the
parties hereto agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
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The Company represents and warrants to each of the
Underwriters as follows:
(a) A registration statement on Form S-1 (File No. 333- ) with
respect to the Shares has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commis sion. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462 (b) of the Act, herein
referred to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, has become effective under the Act; no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement; and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or, to the best of the Company's knowledge, threatened by the
Commission. "Prospectus" means the form of prospectus first filed with the
Commission pursuant to Rule 424(b). Each preliminary prospectus included
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in the Registration Statement prior to the time it becomes effective is herein
referred to as a "Preliminary Prospectus."
(b) The Company and has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement. The Subsidiary
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own or lease its properties and conduct its business as
described in the Registration Statement. The Company and the Subsidiary are
duly qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification, except where the failure to be so
qualified would not reasonably be expected to have a material adverse effect on
the earnings, business, management, properties, assets, operations, condition
(financial or otherwise) or prospects of the Company or the Subsidiary, or to
prevent the consummation of the transactions contemplated hereby (a "Material
Adverse Effect").
(c) The outstanding shares of capital stock, consisting of the
Common Stock, of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; the Shares to be issued and sold by the
Company have been duly authorized and when issued and paid for as contemplated
herein will be validly issued, fully paid and non-assessable; and no preemptive
rights of stockholders exist with respect to any of the Shares or the issue and
sale thereof that have not been waived, complied with or terminated as of the
date of this Agreement. The outstanding shares of capital stock of the
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable and are owned by the Company free and clear of all liens,
encumbrances and equities and claims; and no options, warrants or other rights
to purchase, agreements or other obligations to issue or other rights to convert
any obligations into shares of capital stock or ownership interests in the
Subsidiary are outstanding. Neither the filing of the Registration Statement nor
the offering or sale of the Shares as contemplated by this Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of Common Stock.
(d) The information set forth under the caption
"Capitalization" in the Prospectus is true and correct as of the date set forth
therein. All of the Shares conform to the description thereof contained in the
Registration Statement in all material respects.
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(e) The Commission has not issued an order preventing or
suspending the use of any Preliminary Prospectus or Prospectus relating to the
proposed offering of the Shares nor, to the Company's best knowledge, instituted
proceedings for that purpose. The Registration Statement contains, and the
Prospectus and any amendments or supplements thereto will contain, all
statements which are required to be stated therein, and, in all material
respects, conforms and will conform, to the requirements of the Act and the
Rules and Regulations. The Registration Statement, in the form in which it
became effective, and any amendment thereto, do not contain, and will not
contain, any untrue statement of a material fact and do not omit, and will not
omit, to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments
and supplements thereto do not contain, and will not contain, any untrue
statement of material fact; and do not omit, and will not omit, to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to information contained in or omitted from the Registration
Statement or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the Company by or
on behalf of any Underwriter through the Representatives or by the Selling
Stockholders, specifically for use in the preparation thereof.
(f) The financial statements of the Company and the
Subsidiary with related notes and schedules as set forth in the Registration
Statement, present fairly the financial position and the results of operations
and cash flows of the Company and the Subsidiary, at the indicated dates and for
the indicated periods. Such financial statements and related schedules have been
prepared in accordance with generally accepted principles of accounting,
consistently applied throughout the periods involved, except as disclosed
therein, and all adjustments necessary for a fair presentation of such results
for such periods have been made. The summary financial and statistical data
included in the Registration Statement present fairly the information shown
therein and such data have been compiled on a basis consistent with the
financial statements presented therein and the books and records of the company.
(g) PricewaterhouseCoopers LLP, who have certified certain of
the financial statements filed with the Commission as part of the Registration
Statement, are independent public accountants as required by the Act and the
Rules and Regulations.
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(h) Except as described in the Prospectus, there is no action,
suit, claim or proceeding pending or, to the knowledge of the Company,
threatened against the Company or the Subsidiary before any court or
administrative agency or otherwise which if determined adversely to the Company
or the Subsidiary would reasonably be expected to have a Material Adverse
Effect.
(i) The Company and the Subsidiary have good and valid title
to all of the properties and assets reflected in the financial statements (or as
described in the Registration Statement) herein above described, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except those reflected
in such financial statements (or as described in the Registration Statement) or
which are not material in amount. The Company and the Subsidiary occupy their
leased properties under valid and binding leases conforming in all material
respects to the description thereof set forth in the Registration Statement.
(j) The Company and the Subsidiary have filed all Federal,
state, local and foreign tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments received by
them to the extent that such taxes have become due and are not being contested
in good faith. All tax liabilities have been adequately provided for in the
financial statements of the Company, and the Company does not know of any actual
or proposed additional material tax assessments.
(k) Since the respective dates as of which information is
given in the Registration Statement, as it may be amended or supplemented, there
has not been any material adverse change or any development involving a
prospective material adverse change in or affecting the earnings, business,
management, properties, assets, operations, condition (financial or otherwise),
or prospects of the Company and its Subsidiary taken as a whole, whether or not
occurring in the ordinary course of business, and there has not been any
material transaction entered into or any material transaction that is probable
of being entered into by the Company or the Subsidiary, other than transactions
in the ordinary course of business and changes and transactions described in
the Registration Statement, as it may be amended or supplemented. The Company
and the Subsidiary have no material contingent obligations which are not
disclosed in the Company's financial statements which are included in the
Registration Statement.
(l) Neither the Company nor the Subsidiary is or with the
giving of notice or lapse of time or both, would be, in violation of or in
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default under its Amended and Restated Certificate of Incorporation or Amended
and Restated Bylaws or under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it, or any of its
properties, is bound and which default could reasonably be expected to result in
a Material Adverse Effect. The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated and the fulfillment of the
terms hereof do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or (with the giving of notice,
the passage of time or both) constitute a default under, any indenture,
mortgage, deed of trust or other material agreement to which the Company or the
Subsidiary is a party, or of the Amended and Restated Certificate of
Incorporation, as amended or Amended and Restated Bylaws of the Company or any
order, rule or regulation applicable to the Company or the Subsidiary of any
court or of any regulatory body or administrative agency or other governmental
body having jurisdiction.
(m) Each approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and delivery by the
Company of this Agreement and the consummation of the transactions herein
contemplated (except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the "NASD") or such
additional steps as may be necessary to qualify the Shares for public offering
by the Underwriters under state securities or Blue Sky laws) has been obtained
or made and is in full force and effect.
(n) The Company and the Subsidiary own or have the right to
use adequate patents, patent rights, licenses, copyrights, know how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks,
trade names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them and, as
described in the Prospectus, proposed to be operated by them, except where the
failure to own or have the right to use such Intellectual Property would not
reasonably be expected to result in a Material Adverse Effect, and neither the
Company nor the Subsidiary have received any notice nor are they otherwise aware
of any infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the interest
of the Company or the Subsidiary therein, and which infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, singly or in the aggregate, would reasonably be expected to result
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in a Material Adverse Effect; and the Company knows of no material infringement
by others of any Intellectual Property owned by or licensed to the Company.
(o) Neither the Company, nor to the Company's knowledge, any
of its affiliates, has taken or may take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Shares. The Company acknowledges that the Underwriters may engage in passive
market making transactions in the Shares on The Nasdaq National Market in
accordance with Regulation M under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
(p) Neither the Company nor the Subsidiary is, and upon the
issuance and sale of the Shares as contemplated by this Agreement and the
application of the net proceeds therefrom as described in the Prospectus will
not be, an "investment company" within the meaning of such term under the
Investment Company Act of 1940 (as amended, the "1940 Act"), and the rules and
regulations of the Commission thereunder.
(q) The Company makes and keeps accurate books and records
reflecting its assets and maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(r) The Company and the Subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as they reasonably believe to
be adequate for the conduct of their business and the value of their properties.
(s) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
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would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401 (a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(t) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's officers,
directors or securityholders, except (i) as set forth in the Registration
Statement or (ii) as provided to the Underwriters or their counsel.
(u) No labor dispute with the employees of the Company exists
or, to the knowledge of the Company, is threatened that is reasonably likely to
have a Material Adverse Effect.
(v) The Shares have been approved for listing subject to
notice of issuance on The Nasdaq National Market.
(w) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings which have not been satisfied or waived
between the Company and any person granting such person the right to require the
Company to file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(x) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with this
offering of the Shares.
(y) The Company and the Subsidiary possess all material
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by it and has not
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received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined adversely to the
Company or the Subsidiary, would individually or in the aggregate be reasonably
likely to have a Material Adverse Effect.
(z) The Company and the Subsidiary are currently conducting
their businesses as described in the Prospectus.
(aa) The company has Company complied in all material respects
with Item 404 of Regulation S-K in terms of describing in the Registration
Statement or Prospectus all relationships, direct or indirect, that exist
between or among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand, as set
forth in such rule.
(bb) The Company has not distributed and will not distribute
any offering material in connection with the offering and sale of the Shares
other than the Registration Statement, a Preliminary Prospectus, the Prospectus
and other material, if any, permitted by the Act.
(cc) This Agreement has been duly authorized, executed and
delivered by the Company.
(dd) The Company has reviewed its operations to evaluate the
extent to which the business or operations of the Company have been or will be
affected by the Year 2000 Problem. As a result of such review, the Company has
no reason to believe, and does not believe, that the Year 2000 Problem will have
a Material Adverse Effect or result in any material disruption of the Company's
business or operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission or
other utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods occurring
after December 31, 1999, function at least as effectively as in the case of
dates or time periods occurring prior to January 1, 2000.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING
STOCKHOLDERS
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Each Selling Stockholder listed on Schedule II, severally and not
jointly, represents and warrants to each Underwriter and the Company that:
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(a) Such Selling Stockholder has, and on the Closing Date will
have, full right, power and authority to enter into this Agreement and to sell,
assign, transfer and deliver the Secondary Shares to be sold by such Selling
Stockholder hereunder. This Agreement and the Power of Attorney attached hereto
as Exhibit A (the "Power of Attorney") have been duly authorized, executed and
delivered by such Selling Stockholder, constitute the valid and binding
agreements of such Selling Stockholder, enforceable against such Selling
Stockholder in accordance with their respective terms, subject, as to
enforcement, to applicable bankruptcy, insolvency, reorganization and moratorium
laws and other laws relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles and except as the
enforcement of rights to indemnity and contribution under this Agreement may be
limited under applicable securities laws or the public policy underlying such
laws.
(b) Such Selling Stockholder will convey good and valid title
to the Secondary Shares to be delivered by such Selling Stockholder hereunder,
free and clear of all liens, encumbrances, equities and claims whatsoever. To
the extent certificates were initially issued with respect to such Selling
Stockholder's Shares or options (in the case of Shares to be sold upon the
exercise of options held by such Selling Stockholder on the date hereof),
certificates in negotiable form for the aggregate number of Shares or options
(in the case of Shares to be sold upon the exercise of options held by such
Selling Stockholder on the date hereof) have been placed in custody, under a
Custody Agreement with Loeb & Loeb LLP as custodian in substantially the form
attached hereto as Exhibit B (the "Custody Agreement"); and with respect to
Shares that are issuable upon the exercise of options or warrants, such options
or warrants are immediately exercisable and will be exercised no later than
immediately prior to the Closing Date.
(c) The information with respect to such Selling Stockholder
included in the Registration Statement and the Prospectus under the captions
"Principal and Selling Stockholders" does 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, in the light of the
circumstances under which they were made, not misleading.
(d) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by such Selling
Stockholder of the transaction contemplated herein, except such as may have been
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obtained under the Act or otherwise and such as may be required under state
securi ties or "Blue Sky" laws.
(e) The execution and delivery by such Selling Stockholder of,
and the performance by such Selling Stockholder of its obligations under, this
Agreement will not (with or without the giving of notice or the passage of time
or both) (i) conflict with any term or provision of such Selling Stockholder's
articles of incorporation or bylaws or other organizational documents, as
amended (if such Selling Stockholder is a corporation, limited liability
company, partnership or other entity), (ii) result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which the Selling Stockholder is a party or to which its properties or assets
is subject, or (iii) conflict with or violate any law, statute, rule or
regulation or any order, judgment or decree of any court or governmental agency
or body having jurisdiction over such Selling Stockholder or any of such Selling
Stockholder's properties or assets.
(f) Such Selling Stockholder has not (i) taken, directly or
indirectly, any action designed to cause or result in, or that has constituted
or might reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased or paid anyone any compensation for soliciting purchases of, the
Shares or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(g) Such statements in the Registration Statement, the
Prospectus or any post-effective amendment or supplement thereto made in
reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use therein will (when they
become effective or are filed with the Commission, as the case may be) conform
in all material respects to the requirements of the Act and the rules and
regulations promulgated thereunder and not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
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3. PURCHASE, SALE AND DELIVERY OF THE FIRM SHARES
AND OPTION SHARES.
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(a) On the basis of the representations, warranties and
covenants herein contained, and subject to the conditions herein set forth, the
Company agrees to sell to the Underwriters and each Underwriter agrees,
severally and not jointly, to purchase, at a price of $___ per share, the number
of Firm Shares set forth opposite the name of each Underwriter in Schedule I
hereof, subject to adjustments in accordance with Section 11 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be
made in same day funds against delivery of certificates therefor to the
Representatives for the several accounts of the Underwriters. Such delivery is
to be made through the facilities of The Depository Trust Company, New York, New
York at ___ a.m., New York time, on the third business day after the date of
this Agreement or at such other time and date not later than five business days
thereafter as you and the Company shall agree upon, such time and date being
herein referred to as the "Closing Date." (As used herein, "business day" means
a day on which the New York Stock Ex change is open for trading and on which
banks in New York are open for business and are not permitted by law or
executive order to be closed, it being understood that, in the event that this
Agreement is signed after 4:30 p.m., the first business day after the date of
this Agreement shall be the day after the date of this Agreement.) To the extent
the Firm Shares are represented by physical certificates, the certificates for
the Firm Shares will be delivered in such denominations and in such
registrations as the Representatives request in writing not later than the
second full business day prior to the Closing Date, and will be made available
for inspection by the Representatives at least one full business day prior to
the Closing Date.
(c) In the event and to the extent that the Underwriters shall
exercise the election to purchase Option Shares as provided below, The Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a price of $__ per
share, that portion of the number of Option Shares as to which such election
shall have been exercised.
(d) The Company hereby grants to the Underwriters the right to
purchase at their election up to an aggregate of the number of Option Shares at
$__ per share, for the sole purpose of covering overallotments in the sale of
the Firm Shares. Any such election to purchase Option Shares may be exercised
only by written notice from the Representatives to the Company, given prior to
the Closing Date or within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Option Shares to be purchased,
the names and denominations in which the Option Shares are to be registered and
the time and date on which such Option Shares are to be delivered.
(e) The time and date at which certificates for Option Shares
are to be delivered shall be determined by the Representatives but shall not be
earlier than three nor later than 10 full business days after the exercise of
such Over-Allotment Option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the "Option Closing Date"). If the
date of exercise of the Over-Allotment Option is before the Closing Date, the
notice of exercise shall be given at least one full business day prior to the
Closing Date and shall set the Closing Date as the Option Closing Date. The
number of Option Shares to be purchased by each Underwriter shall be in the same
proportion to the total number of Option Shares being purchased as the number of
Firm Shares purchased by such Underwriter bears to the total number of Firm
Shares purchased, adjusted by you in such a manner as to avoid fractional
shares. The option with respect to the Option Shares granted hereunder may be
exercised only to cover over-allotments in the sale of the Firm Shares by the
Underwriters. You, as Representatives of the several Underwriters, may cancel
such Over-Allotment Option at any time prior to its expiration by giving written
notice of such cancellation to the Company. To the extent, if any, that the
Over-Allotment Option is exercised, payment for the Option Shares shall be made
on the Option Closing Date in Federal (same day) funds drawn to the order of the
Company.
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4. OFFERING BY THE UNDERWRITERS.
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It is understood that the several Underwriters are to make a
public offering of the Firm Shares as soon as the Representatives deem it
advisable to do so. The Firm Shares are to be initially offered to the public at
the market price of the Shares on the date the Prospectus is declared effective.
To the extent, if at all, that any Option Shares are purchased pursuant to
Section 3 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the
Representatives for the Underwriters in the offering and sale of the Shares in
accordance with a Master Agreement Among Underwriters entered into by you and
the several other Under writers.
5. COVENANTS OF THE COMPANY
------------------------
The Company covenants and agrees with each of the several
Under writers that:
(a) The Company will (A) use commercially reasonable efforts
to cause the Registration Statement to become effective or, if the procedure in
Rule 430A of the Rules and Regulations is followed, to prepare and timely file
with the Commission under Rule 424(b) of the Rules and Regulations a Prospectus
in a form approved by the Representatives containing information previously
omitted at the time of effectiveness of the Registration Statement in reliance
on Rule 430A of the Rules and Regulations and (B) not file any amendment to the
Registration Statement or supplement to the Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
or to which the Representatives shall have reasonably objected in writing or
which is not in compliance, in all material respects, with the Rules and
Regulations and (C) file on a timely basis all reports and any definitive proxy
or information statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to the termination
of the offering of the Shares by the Underwriters.
(b) The Company will advise the Representatives promptly (A)
when the Registration Statement or any post-effective amendment thereto shall
have become effective, (B) of receipt of any comments from the Commission, (C)
of any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, and (D) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus or of the institution of
any proceedings for that purpose. The Company will use its best efforts to
prevent the issuance of any such stop order preventing or suspending the use of
the Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under the securities laws of such
jurisdictions as the Representatives may reasonably have designated in writing
and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided the Company
shall not be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction where it is not now so
qualified or required to file such a consent. The Company will, from time to
time, prepare and file such statements, reports, and other documents as are or
may be required to continue such qualifications in effect for so long a period
as the Representatives may reasonably request for distribution of the Shares.
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(d) The Company will deliver to, or upon the order of, the
Representatives, will deliver from time to time, as many copies of any
Preliminary Prospectus as the Representatives may reasonably request. The
Company will deliver to, or upon the order of, the Representatives during the
period when delivery of a Prospectus is required under the Act, as many copies
of the Prospectus in final form, or as thereafter amended or supplemented, as
the Representatives may reasonably request. The Company will deliver to the
Representatives at or before the Closing Date, four signed copies of the
Registration Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Representatives such number of copies of the
Registration Statement (including such number of copies of the exhibits filed
therewith that may reasonably be requested), and of all amendments thereto, as
the Representatives may reasonably request.
(e) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, in all
material respects, the Company promptly will so notify the Representatives and
will prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus as
so amended or supplemented will not, in the light of the circumstances when it
is so delivered, be misleading, or so that the Prospectus will comply with the
law, in all material respects. The Company will furnish, without charge, to the
Underwriters and any dealer required to so deliver a Prospectus, as many copies
of the post-effective amendment to the Registration Statement and the amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act as they
may reasonably request.
(f) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earnings
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
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Registration Statement, which earning statement shall satisfy the requirements
of Section 11 (a) of the Act and Rule 158 of the Rules and Regulations.
(g) No offering, sale, short sale or other disposition of any
shares of Common Stock of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Stock or derivative of Common
Stock or of other securities that represent the right to receive Common Stock or
the right to receive securities convertible into or exchangeable or exercisable
for shares of Common Stock (or any agreement for such) will be made for a period
of 180 days after the date of this Agreement, directly or indirectly, by the
Company otherwise than hereunder or with the prior written consent of Deutsche
Bank (except for the grant of options pursuant to employee stock option plans
that are in existence on the date hereof and described in the Prospectus),
except that the Company may without such consent issue shares upon the exercise
of options outstanding on the date of this Agreement pursuant to the Company's
stock option or stock purchase plans or as consideration for acquisitions or in
connection with strategic investments or corporate relationships, provided that
any shares so issued cannot be offered, sold or otherwise disposed of by the
recipient thereof during the 180-day period referred to above.
(h) The Company will use its commercially reasonable best
efforts to have the Shares, subject to notice of issuance, approved for
quotation on The Nasdaq National Market.
(i) The Company has caused each officer, each director and
substantially all of the securityholders of the Company to furnish to the
Representatives, on or prior to the date of this agreement, a letter or letters,
in form and substance satisfactory to the Underwriters, pursuant to which each
such person shall agree not to offer, sell, sell short or otherwise dispose of
any shares of Common Stock of the Company or other capital stock of the Company,
or any other securities convertible, exchangeable or exercisable for Common
Stock or derivative of Common Stock owned by such person or request the
registration for the offer or sale of any of the foregoing (or as to which such
person has the right to direct the disposition of) for a period of 180 days
after the date of this Agreement, directly or indirectly, except (i) with the
prior written consent of Deutsche Bank, and (ii) as contemplated in such
letters.
(j) During a period of three years from the effective date of
the Registration Statement, to furnish to the Representatives copies of all
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reports or other communications (financial or other) furnished to stockholders,
to deliver to the Representatives (i) as soon as they are available, copies of
any reports and financial statements furnished to or filed with the Commission
or any national securities exchange on which any class of securities of the
Company is listed; and (ii) such additional information concerning the business
and financial condition of the Company as the Representatives may from time to
time reasonably request (such financial statements to be on a consolidated basis
to the extent the accounts of the Company are consolidated in reports furnished
to its stockholders generally or to the Commission).
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file as promptly as practicable a Rule 462(b) Registration
Statement with the Commission in compliance with Rule 462(b), and the Company
shall at the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
(l) The Company shall apply, in all material respects, the net
proceeds of its sale of the Shares as set forth in the Prospectus and shall
include in reports filed with the Commission such information with respect to
the sale of the Shares and the application of the proceeds therefrom as may be
required in accordance with Rule 463 under the Act.
(m) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company or the Subsidiary to register as an investment company
under the 1940 Act.
(n) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a registrar
for the Common Stock.
(o) The Company will not (i) take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any securities of the Company or (ii) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of, the Shares.
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6. COVENANTS OF SELLING STOCKHOLDERS.
---------------------------------
Each Selling Stockholder agrees with the several Underwriters
as follows:
(a) Such Selling Stockholder will cooperate to the extent
reasonably necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(b) Such Selling Stockholder will use such Selling
Stockholder's reasonable best efforts to do or perform all things required to be
done or performed by it prior to the Closing Date to satisfy all conditions
precedent to the delivery of the Shares.
(c) Except for the sale of Secondary Shares, such Selling
Stockholder will not offer, sell, contract to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or any interests therein, or
any securities convertible into, or exchangeable for, shares of Common Stock or
rights to acquire the same, (i) except as permitted under the terms of the
agreement specified in Section 5(i) ("Lock-up Agreement"), or (ii) if such
Selling Stockholder shall not have executed a Lock-up Agreement, prior to the
expiration of the Lock-up Period without the prior written consent of Deutsche
Bank.
(d) Such Selling Stockholder will not take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares in violation of the Exchange Act or
any applicable rules of The Nasdaq National Market.
(e) Each Selling Stockholder agrees to notify the Underwriters
promptly of any information that comes to such Selling Stockholder's attention
that would cause such Selling Stockholder to have reason to believe that his,
her or its representations, warranties and statements in this Agreement are not
accurate in all material respects.
(f) Except as herein contemplated with respect to the Shares
to be included in the Registration Statement, each Selling Stockholder agrees to
waive any registration rights to which such Selling Stockholder may be entitled
in connection with the public offering herein contemplated.
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7. COSTS AND EXPENSES.
------------------
The Company will pay all costs, expenses and fees incident to
the performance of the obligations of the Company under this Agreement,
including, without limiting the generality of the foregoing, the following:
accounting fees of the Company; the fees and disbursements of counsel for the
Company; the cost of printing and delivering to, or as reasonably requested by,
the Underwriters copies of the Registration Statement, Preliminary Prospectuses,
the Prospectus, this Agreement, the Underwriters' Selling Memorandum, the
Underwriters' Invitation Letter, the Blue Sky Survey and any supplements or
amendments thereto; the filing fees and expenses (including legal fees and
disbursements) incident to securing any required review by the NASD of the terms
of the sale of the Shares; the Listing Fee of The Nasdaq National Market; the
expenses, including the fees and disbursements of counsel for the Underwriters,
incurred in connection with the qualification of the Shares under State
securities or Blue Sky laws; the cost of preparing stock certificates; and the
fees and disbursements of the transfer agent and registrar. The Company shall
not, however, be required to pay for any of the Underwriters expenses (other
than those related to qualification under NASD regulation and State securities
or Blue Sky laws) except that, if this Agreement shall not be consummated
because the conditions in Section 6 hereof are not satisfied, or because this
Agreement is terminated by the Representatives pursuant to Section 13 hereof,
or by reason of any failure, refusal or inability on the part of the Company to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on its part to be performed, unless such failure to
satisfy said condition or to comply with said terms be due to the default or
omission of any Underwriter, then the Company shall reimburse the several
Underwriters for reasonable out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred in connection with investigating,
marketing and proposing to market the Shares or in contemplation of performing
their obligations hereunder; but the Company shall not in any event be liable to
any of the several Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Shares. The Company also agrees to pay the
reasonable fees and disbursements of one counsel for all Selling Stockholders
(the "Selling Stockholders' Counsel"). Each Selling Stockholder shall pay the
costs and expenses incident to the performance by it of its obligations
hereunder and in connection with the offer, sale and delivery of the Shares to
be sold by it, provided that the Company shall pay any stock transfer taxes
payable upon the sale of the Shares to the Underwriters by the Selling
Stockholders, the fees and expenses of any counsel, other than Selling
Stockholders' Counsel, retained by it and the underwriting discounts and
commissions payable to the Underwriters.
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8. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS.
----------------------------------------------
The several obligations of the Underwriters to purchase the
Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option
Closing Date, as the case may be, of the representations and warranties of the
Company and the Selling Stockholders contained herein, as the case may be, and
to the performance by the Company and the Selling Stockholders of their
respective covenants and obligations hereunder and to the following additional
conditions:
(a) The Registration Statement and all post-effective
amendments thereto shall have become effective and any and all filings required
by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and
any request of the Commission for additional information (to be included in the
Registration Statement or otherwise) shall have been disclosed to the
Representatives and complied with to their reasonable satisfaction. No stop
order suspending the effectiveness of the Registration Statement, as amended
from time to time, shall have been issued and no proceedings for that purpose
shall have been taken or, to the knowledge of the Company, shall be contemplated
by the Commission and no injunction, restraining order, or order of any nature
by a Federal or state court of competent jurisdiction shall have been issued as
of the Closing Date which would prevent the issuance of the Shares.
(b) The Representatives shall have received on the Closing
Date and on the Option Closing Date, in the event the Over-Allotment Option is
exercised, the opinion of Brobeck, Phleger & Harrison LLP, counsel for the
Company, dated the Closing Date or the Option Closing Date, as the case may be,
addressed to the Underwriters (and stating that it may be relied upon by counsel
to the Underwriters), in form and substance reasonably satisfactory to the
Representatives, to the effect set forth in Exhibit 8(b) to this Agreement.
(c) The Selling Stockholders shall have furnished to you the
opinion of Loeb & Loeb LLP or of such counsel to the Selling Stockholders as
shall be reasonably satisfactory to Skadden, Arps, Slate, Meagher & Flom LLP
("Skadden, Arps"), counsel for the Underwriters, dated Closing Date and the
Option Closing Date, to the effect set forth in Exhibit 8(c) to this Agreement.
(d) The Representatives shall have received from Skadden,
Arps, counsel for the Underwriters, an opinion dated the Closing Date or the
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Option Closing Date, as the case may be, with respect to the valid existence and
good standing of the Company, the validity of the Shares being delivered, the
Registration Statement, the Prospectus, and other related matters as the
Representatives may reasonably request, and the Company shall have furnished to
Skadden, Arps such documents as they request for the purpose of enabling them to
pass upon such matters.
(e) The Representatives shall have received, on the date
hereof, on the Closing Date and the Option Closing Date, in the event the
Over-Allotment Option is exercised, a letter dated the date hereof, the Closing
Date or the Option Closing Date, as the case may be, in form and substance
satisfactory to you, of PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating that in their opinion
the financial statements and schedules examined by them and included in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus.
(f) The Representatives shall have received on the Closing
Date and the Option Closing Date, in the event the Over-Allotment Option is
exercised, a certificate or certificates of the Chief Executive Officer and the
principal financial officer of the Company to the effect that, as of the Closing
Date or the Option Closing Date, as the case may be, each of them severally
represents as follows:
(1) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such
purpose have been taken or are, to his knowledge, contemplated by the
Commission;
(2) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing
Date or the Option Closing Date, as the case may be;
(3) The Company has performed, in all material
respects, all covenants and agreements and satisfied all conditions
20
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contained in this Agreement required to be performed or satisfied by
the Company as of the Closing Date or the Option Closing Date, as the
case may be;
(4) He carefully examined the Registration Statement
and the Prospectus and, in his opinion, as of the effective date of the
Registration Statement, the statements contained in the Registration
Statement were true and correct in all material respects, and such
Registration Statement and Prospectus did not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading, in the case of the Prospectus, in
light of the circumstances under which they were made, and since the
effective date of the Registration Statement, no event has occurred
which is required to be set forth in a supplement to or an amend ment
of the Prospectus which has not been so set forth in such supplement or
amendment; and
(5) Since the respective dates as of which
information is given in the Registration Statement and Prospectus,
there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets, operations,
condition (financial or otherwise) or prospects of the Company or the
Subsidiary, whether or not arising in the ordinary course of business.
(g) The Representatives shall have received on the Closing
Date, a certificate or certificates of the Selling Stockholders to the effect
that, as of the Closing Date, each of them generally represents that the
representations and warranties of the Selling Stockholders contained in Section
2 hereof are true and correct as of the Closing Date.
(h) The Company and the Selling Stockholders shall have
furnished to the Representatives such further certificates and documents
confirming the representations and warranties, covenants and conditions
contained herein and related matters as the Representatives may reasonably have
requested.
(i) The Firm Shares and Option Shares, if any, have been
approved for quotation, subject to official notice of issuance, on The Nasdaq
National Market.
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(j) The Lockup Agreements described in Section 5(i) are in
full force and effect.
(k) The opinions and certificates mentioned in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are
in all material respects reasonably satisfactory to the Representatives and to
Skadden, Arps, counsel for the Underwriters.
(l) If any of the conditions hereinabove provided for in this
Section 8 shall not have been fulfilled when and as required by this Agreement
to be fulfilled, the obligations of the Underwriters hereunder may be terminated
by the Representatives by notifying the Company and the Selling Stockholders of
such termination in writing or by telegram at or prior to the Closing Date or
the Option Closing Date, as the case may be.
In such event, the Company, the Selling Stockholders and the
Underwriters shall not be under any obligation to each other (except to the
extent provided in Sections 7 and 10 hereof).
9. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY AND
SELLING STOCKHOLDERS.
------------------------------------------------
The obligations of the Company and the Selling Stockholders to
sell and deliver the portion of the Shares required to be delivered as and when
specified in this Agreement are subject to the conditions that at the Closing
Date or the Option Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement shall have been issued and be in
effect or proceedings therefor initiated or threatened.
10. INDEMNIFICATION.
---------------
(a) The Company agrees:
(1) to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the
meaning of the Act and each Selling Stockholder and their
representative heirs and assigns, directors, officers and each person
who controls such persons within the meaning of the Act, against any
losses, claims, damages or liabilities to which such Underwriter or any
22
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such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus or any amendment or supplement thereto, (ii) 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, in the case of the Prospectus, in light of the
circumstances in which they were made, or (iii) any alleged act or
failure to act by any Underwriter in connection with, or relating in
any manner to, the Shares or the offering contemplated hereby, and
which is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided, that the Company shall not be
liable under this clause (iii) to the extent that it is determined in a
final judgment by a court of competent jurisdiction (unless the Company
and the Underwriter otherwise agree) that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its
gross negligence or willful misconduct); 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 an
untrue statement or alleged untrue statement, or omission or alleged
omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with written information furnished to
the Company by or through the Representatives specifically for use in
the preparation thereof, as set forth in Section 15 hereof and;
provided further, that with respect to any untrue statement or omission
of a material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 10(a) shall not inure to the
benefit of any Underwriter from whom the person asserting any such
loss, claim, damage or liability purchased the securities concerned, to
the extent that any such loss, claim, damage or liability of such
Underwriter occurs under the circumstance where it shall have been
determined by a court of competent jurisdiction by final and
nonappealable judgment (unless the Company and the Underwriter
otherwise agree) that (w) the Company had previously furnished copies
of the Prospectus to the Representatives, (x) delivery of the
Prospectus was required by the Act to be made to such person, (y) the
untrue statement or omission of a material fact contained in the
Preliminary Prospectus was corrected in the Prospectus and (z) there
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was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of
the Prospectus.
(2) to reimburse each Underwriter and each such
controlling person upon demand for any legal or other out-of-pocket
expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss,
claim, damage or liability, action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Shares,
whether or not such Underwriter or controlling person is a party to any
action or proceeding. In the event that it is finally judicially
determined (unless the Company and the Underwriter otherwise agree)
that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will
promptly return all sums that had been advanced pursuant hereto.
(b) The Company will indemnify and hold harmless Deutsche Bank
against any losses, claims, damages or liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (i) that arises out of or
is based upon any untrue statement or alleged untrue statement of any material
fact contained in the Prospectus or Preliminary Prospectus or any amendment or
supplement thereto or caused by any omission of or alleged omission to state in
the Prospectus or Preliminary Prospectus or any amendment or supplement thereto,
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) caused by the failure of any
Participant to pay for and accept delivery of the Shares that, immediately
following the effectiveness of the Registration Statement, were subject to a
properly confirmed agreement to purchase; provided that the Company shall not be
responsible under this Section 10(b) for any losses, claims, damages or
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of Deutsche
Bank.
(c) Each Selling Stockholder will, severally but not jointly,
indemnify and hold harmless the Company and each Underwriter against any
losses, claims, damages or liabilities to which the Company, Underwriter or
controlling person may become subject under the Act, the Exchange Act, or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) (i) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
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supplement thereto, or (ii) arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, in each case only to
the extent that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by any Selling Stockholder specifically
for use therein; and, subject to the limitation set forth immediately preceding
this clause, will reimburse, as incurred, any legal or other expenses reasonably
incurred by the Company or Underwriter or controlling person in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that with respect to any untrue statement or
omission of a material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this Section 10(c) shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage or
liability purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstance
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment (unless the Company and the Underwriter
otherwise agree) that (w) the Company had previously furnished copies of the
Prospectus to the Representatives, (x) delivery of the Prospectus was required
by the Act to be made to such person, (y) the untrue statement or omission of a
material fact contained in the Preliminary Prospectus was corrected in the
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such securities to such person, a copy
of the Prospectus; provided further, that each Selling Stockholder shall not in
any event be liable under this Section 10 for any amounts in excess of the
product of the purchase price per share set forth in Section 3 hereof and the
number of shares being sold by such Selling Stockholder hereunder.
(d) Each Underwriter severally and not jointly will indemnify
and hold harmless the Company, each Selling Stockholder (and its heirs, and
assigns), each of their respective directors, and each of the Company's officers
and each person, if any, who controls the Company within the meaning of the Act,
against any losses, claims, damages or liabilities to which the Company or any
such director, officer, or controlling person may become subject under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
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the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse upon demand any legal or other expenses
reasonably incurred by the Company, such Selling Stockholder (and its heirs,
and assigns) or any such director, officer, or controlling person in connection
with investigating or defending any such loss, claim, damage, liability, action
or proceeding; provided, however, that each Underwriter will be liable in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission has been made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Representatives
specifically for use in the preparation thereof. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(e) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to this Section 10, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing. No
indemnification provided for in Section 10(a), (b), (c) or (d) shall be
available to any party who shall fail to give notice as provided in this Section
10(e) if the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was materially prejudiced by the
failure to give such notice, but the failure to give such notice shall not
relieve the indemnifying party or parties from any liability which it or they
may have to the indemnified party for contribution or otherwise than on account
of the provisions of Section 10(a), (b), (c) or (d). In case any such proceeding
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and
shall pay as incurred the reasonably fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel at its own expense. Notwithstanding
the foregoing, the indemnifying party shall pay as incurred (or within 30 days
of presentation) the reasonable fees and expenses of the counsel retained by the
indemnified party in the event (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
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differing interests between them or (iii) the indemnifying party shall have
failed to assume the defense and employ counsel acceptable to the indemnified
party within a reasonable period of time after notice of commencement of the
action. It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 10(a) and by the Company in the case
of parties indemnified pursuant to Section 10(b), (c) or (d). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding with respect to which indemnification may be sought hereunder
(whether or not any indemnified party is an actual or potential party to such
claim, action or proceeding) unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action or proceeding and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(f) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless an indemnified party under
Section 10(a), (b), (c) or (d) above in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company, the
Selling Stockholders, and the Underwriters, respectively, from the offering of
the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, the Selling Stockholders, and the
Underwriter, respectively, in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, the Selling
27
<PAGE>
Stockholders, and the Underwriters shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses)
received by the Company and the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Selling Stockholders, or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
Section 10(f) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 10(f). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 10(f) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (f), (x) no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts and commissions applicable to the Shares purchased by
such Underwriter, (y) no Selling Stockholder shall be required to contribute any
amount in excess of the product of the purchase price per share set forth in
Section 3 hereof and the number of shares being sold by such Selling Stockholder
hereunder, and (z) 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.
(g) In any proceeding relating to the Registration Statement,
any Preliminary Prospectus, the Prospectus or any supplement or amendment
thereto, each party against whom contribution may be sought under this Section
10 hereby consents to the jurisdiction of any court having jurisdiction over any
other contributing party, agrees that process issuing from such court may be
served upon him or it by any other contributing party and consents to the
service of such process and agrees that any other contributing party may join
him or it as an additional defendant in any such proceeding in which such other
contributing party is a party.
28
<PAGE>
(h) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 10 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 10 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (x) any
investigation made by or on behalf of any Under writer or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, or Selling Stockholders or any persons controlling the
Selling Stockholders (y) acceptance of any Shares and payment therefor
hereunder, and (z) any termination of this Agreement. A successor to any
Underwriter, to the Company, its directors or officers, or any person
controlling the Company, or Selling Stockholders or any persons controlling the
Selling Stockholders shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 10.
11. DEFAULT BY UNDERWRITERS.
-----------------------
If on the Closing Date or the Option Closing Date, as the case
may be, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company), you, as
Representatives of the Underwriters, shall use your reasonable efforts to
procure within 36 hours thereafter one or more of the other Underwriters, or any
others, to purchase from the Company or the Selling Stockholders, as the case
may be, such amounts as may be agreed upon and upon the terms set forth herein,
the Firm Shares or Option Shares, as the case may be, which the defaulting
Underwriter or Underwriters failed to purchase. If during such 36 hours you, as
such Representatives, shall not have procured such other Underwriters, or any
others, to purchase the Firm Shares or Option Shares, as the case may be, agreed
to be purchased by the defaulting Underwriter or Underwriters, then (a) if the
aggregate number of shares with respect to which such default shall occur does
not exceed 10% of the Firm Shares or Option Shares, as the case may be, covered
hereby, the other Underwriters shall be obligated, severally, in proportion to
the respective numbers of Firm Shares or Option Shares, as the case may be,
which they are obligated to purchase hereunder, to purchase the Firm Shares or
Option Shares, as the case may be, which such defaulting Underwriter or
Underwriters failed to purchase, or (b) if the aggregate number of shares of
Firm Shares or Option Shares, as the case may be, with respect to which such
default shall occur exceeds 10% of the Firm Shares or Option Shares, as the
case may be,
29
<PAGE>
covered hereby, the Company or you as the Representatives of the Underwriters
will have the right, by written notice given within the next 36-hour period to
the parties to this Agreement, to terminate this Agreement without liability on
the part of the non defaulting Underwriters or of the Company except to the
extent provided in Section 10 hereof. In the event of a default by any
Underwriter or Underwriters, as set forth in this Section 11, the Closing Date
or Option Closing Date, as the case may be, may be postponed for such period,
not exceeding seven days, as you, as Representatives, may determine in order
that the required changes in the Registration Statement or in the Prospectus or
in any other documents or arrangements may be effected. The term "Underwriter"
includes any person substituted for a defaulting Underwriter. Any action taken
under this Section 11 shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
12. NOTICES.
-------
All communications hereunder shall be in writing and, except
as otherwise provided herein, will be mailed, delivered, telecopied or
telegraphed and confirmed as follows:
(a) If to the Underwriters, to Deutsche Bank Securities Inc.,
One South Street, Baltimore, Maryland 21202, Attention: General Counsel; with a
copy to Skadden, Arps, Slate, Meagher & Flom LLP, Four Times Square, New York,
New York, Attention: Stacy J. Kanter, fax no.: 212 735 2000; and
(b) If to the Company, to Register.com, Inc., 575 Eighth
Avenue, 11th Floor, New York, New York 10018, Attention: Jack S. Levy, General
Counsel, fax no.: 212 629 9309; with a copy to Brobeck, Phleger & Harrison LLP,
1633 Broadway, 47th Floor, New York, New York 10019, Attention: Scott L.
Kaufman, fax no.: 212 586 7878; and
(c) If to any Selling Stockholder, to such Selling Stockholder
at its address listed in the Prospectus, with a copy to Loeb & Loeb LLP, 345
Park Avenue, 18th Floor, New York, New York 10154, Attn: David Schaefer, fax
no.: 212 407 4990.
13. TERMINATION.
-----------
(a) This Agreement may be terminated by you by notice to the
Company at any time prior to the Closing Date if any of the following has
occurred:
30
<PAGE>
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets, operations, condition
(financial or otherwise) or prospects of the Company or the Subsidiary, whether
or not arising in the ordinary course of business, (ii) any outbreak or
escalation of hostilities or declaration of war or national emergency or other
national or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, escalation, declaration, emergency,
calamity, crisis or change on the financial markets of the United States would,
in your reasonable judgment, make it impracticable or inadvisable to market the
Shares or to enforce contracts for the sale of the Shares, or (iii) suspension
of trading in securities generally on the New York Stock Exchange or the
American Stock Exchange or limitation on prices (other than limitations on hours
or numbers of days of trading) for securities on either such Exchange, (iv) the
enactment, publication, decree or other promulgation of any statute, regulation,
rule or order of any court or other governmental authority which in your
reasonable opinion materi ally and adversely affects or may materially and
adversely affect the business or operations of the Company or the Subsidiary,
(v) declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of the Company's debt securities, if any, by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Exchange Act); (vii) the suspension of trading of the
Company's Common Stock by The Nasdaq National Market, the Commission, or any
other governmental authority or, (viii) the taking of any action by any
governmental body or agency in respect of its monetary or fiscal affairs which
in your reasonable opinion has a material adverse effect on the securities
markets in the United States; or
(b) This Agreement may otherwise be terminated as provided in
Sections 8 and 11 of this Agreement.
14. SUCCESSORS.
----------
This Agreement has been and is made solely for the benefit of
the Underwriters, the Company, the Selling Stockholders and their respective
successors, executors, administrators, heirs and assigns, and the officers,
directors and controlling persons referred to herein, and no other person will
31
<PAGE>
have any right or obligation hereunder. No purchaser of any of the Shares from
any Underwriter shall be deemed a successor or assign merely because of such
purchase.
15. INFORMATION PROVIDED BY UNDERWRITERS AND SELLING STOCKHOLDERS.
--------------------------------------------------------------
(a) The Company and the Underwriters acknowledge and agree
that the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the following information, furnished by the Representatives on behalf of the
Underwriters to the Company, set forth under the caption "Underwriting" in the
Prospectus: (i) the list of Underwriters, (ii) the fifth and sixth paragraphs,
and the first sentence in the seventh paragraph under the table listing the
Underwriters, (iii) the first paragraph under the subheading "Commissions and
Discounts," (iv) the fourth paragraph under the subheading "Nasdaq National
Market Quotation," and (v) all of the paragraphs under the subheading "Price
Stabilization, Short Positions and Penalty Bids."
(b) The Company, the Underwriters and the Selling Stockholders
acknowledge and agree that the only information furnished or to be furnished by
any Selling Stockholder to the Company for inclusion in any Prospectus or the
Registration Statement consists of the information as to the number of
Secondary Shares such Selling Stockholder has agreed to sell as set forth under
the caption "Principal and Selling Stockholders."
16. MISCELLANEOUS.
-------------
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers, or by or on behalf of the Selling Stockholders (and
their heirs and assigns) or their directors or officers and (c) delivery of and
payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without giving effect to the
principles of conflicts of law thereof.
32
<PAGE>
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
REGISTER.COM, INC.
By:
------------------------------
Name:
Title:
SELLING STOCKHOLDERS,
Listed on Schedule II
By:
-------------------------------
Attorney-in-fact
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the
date first above written.
DEUTSCHE BANK SECURITIES INC.
THOMAS WEISEL PARTNERS LLC
BANC OF AMERICA SECURITIES LLC
LEGG MASON WOOD WALKER, INCORPORATED
SOUNDVIEW TECHNOLOGY GROUP, INC.
As Representatives of the several
Underwriters listed on Schedule I
By: DEUTSCHE BANK SECURITIES INC.
By:
-------------------------------
Name:
Title:
33
<PAGE>
SCHEDULE I
SCHEDULE OF UNDERWRITERS
(TO COME)
<TABLE>
<CAPTION>
Number of Firm Number of Option
Shares Shares
Underwriter to be Purchased to be Purchased
----------- ----------------- ----------------
<C> <C>
<S>
</TABLE>
<PAGE>
SCHEDULE II
LIST OF SELLING STOCKHOLDERS
(TO COME)
<PAGE>
Exhibit A
POWER OF ATTORNEY
[to come]
<PAGE>
Exhibit B
CUSTODY AGREEMENT
[to come]
<PAGE>
Exhibit 8(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement; the Company has the status
set forth opposite the jurisdictions listed on Schedule A to the opinion [need
to see].
(ii) The Company has authorized and outstanding capital stock as set
forth under the heading "Actual" under the caption "Capitalization" in the
Prospectus; the authorized shares of the Company's capital stock have been duly
authorized; the outstanding shares of the Company's capital stock have been duly
authorized and validly issued and are fully paid and non-assessable; all of the
Shares conform to the description thereof contained in the Prospectus; the
certificates for the Shares, assuming they are in the form filed with the
Commission, are in due and proper form and comply with all applicable
requirements of the Amended and Restated Certificate of Incorporation, as
amended and Amended and Restated Bylaws of the Company and the General
Corporation Law of the State of Delaware; the shares of Common Stock, including
the Option Shares, if any, to be sold by the Company, pursuant to this Agreement
have been duly authorized and will be validly issued, fully paid and
non-assessable; and no preemptive rights of stockholders exist with respect to
any of the Shares or the issue or sale thereof.
(iii) Except as described in or contemplated by the Prospectus, to the
knowledge of such counsel, there are no outstanding securities of the Company
convertible or exchangeable into or evidencing the right to purchase or
subscribe for any shares of capital stock of the Company and there are no
outstanding or authorized options, warrants or rights of a similar character
obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock; and except as described in the
Prospectus, to the knowledge of such counsel, no holder of any securities of the
Company or any other person has the right, contractual or otherwise, which has
not been satisfied or effectively waived, to cause the Company to sell or
otherwise issue to them, or to permit them to underwrite the sale of, any of the
Shares or the right to have any shares of Common Stock or other securities of
the Company included in the Registration Statement or the right, as a result of
the filing of the Registration Statement, to require registration under the Act
of any shares of Common Stock or other securities of the Company, except each
Selling Stockholder who has agreed to exercise such right only with respect to
<PAGE>
the Option Shares which are proposed to be sold, on a conditional basis as
described in Section 3, by such Selling Stockholder hereunder.
(iv) The Registration Statement has become effective under the Act and,
to the best knowledge of such counsel, no stop order proceedings suspending the
effectiveness of the Registration Statement have been is sued and no proceedings
for that purpose are pending before or contemplated by the Commission.
(v) The Registration Statement, the Prospectus and each amendment or
supplement thereto comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations thereunder
(except that such counsel need express no opinion as to the financial statements
and related schedules therein).
(vi) The statements under the captions "Business-Administration of the
Internet; Government Regulation and Legal Uncertainties," "Business-Intellectual
Property and Proprietary Rights," "Management-- Limitation on Director'
Liability and Indemnification," "Management-- Employment Agreements,"
"Management-Stock Option Plans," "Certain Relationships and Related
Transactions," "Description of Capital Stock," "Shares Eligible for Future
Sale," and "Underwriting" in the Prospectus, insofar as such statements purport
to constitute a summary of the legal matters, documents or proceedings referred
to therein, provide a fair summary of all such legal matters, documents and
proceedings in all material respects.
(vii) To such counsel's knowledge, there are no agreements, contracts,
indentures, leases or other instruments that are required to be filed as
exhibits to the Registration Statement or described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) that are
not so filed or described as required.
(viii) To such counsel's knowledge, there are no legal or governmental
proceedings pending or threatened against the Company that are required to be
described in the Registration Statement that are not so described.
(ix) Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby (A) violates the Amended
and Restated Certificate of Incorporation, as amended or Amended and Restated
Bylaws of the Company, or (B) constitutes a breach of, or a default under, any
<PAGE>
agreement or instrument known to such counsel to which the Company is a party or
by which the Company may be bound.
(x) This Agreement has been duly authorized, executed and delivered by
the Company.
(xi) No approval, consent, order, authorization, registration, or
filing with any regulatory, administrative or other governmental body is
required on the part of the Company (except (A) as have been obtained under the
Act and the Exchange Act or (B) such as may be required by the NASD or under
state securities or Blue Sky laws governing the purchase and distribution of the
Shares, as to which, in the case of (B), such counsel need express no opinion)
in connection with the execution and delivery of this Agreement and the
consummation of the transactions herein contemplated.
(xii) The Company is not, and will not become, as a result of the
consummation of the transactions contemplated by this Agreement, and
application of the net proceeds therefrom as described in the Prospectus, an
investment company within the meaning of the 1940 Act.
In rendering such opinion, such counsel may rely as to matters governed
by the laws of states other than New York, the Delaware General Corporation Law
or federal laws on local counsel in such other jurisdictions, provided that in
each case Brobeck, Phleger & Harrison, LLP shall state that they believe that
they and the Underwriters are justified in relying on such other counsel. In
addition to the matters set forth above, such opinion shall also include a
statement to the effect that nothing has come to the attention of such counsel
which leads them to believe that (i) the Registration Statement, at the time it
became effective under the Act (but after giving effect to any modifications
incorporated therein pursuant to Rule 430A under the Act) 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
(except that such counsel need express no view as to financial statements,
schedules and statistical information therein), and (ii) the Prospectus, or any
supplement thereto, as of the date on which it was filed pursuant to the Rules
and Regulations and as of the Closing Date or the Option Closing Date, as the
case may be, contained or contains an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements, in
the light of the circumstances under which they are made, not misleading
(except that such counsel need express no view as to financial statements,
schedules and statistical information therein). With respect to such statement,
Brobeck, Phleger & Harrison, LLP may state that their belief is based upon the
procedures set forth therein, but is without independent check and verification.
<PAGE>
Exhibit 8(c)
(i) This Agreement has been duly authorized, executed and delivered by
the Selling Stockholders;
(ii) Each Selling Stockholder has the power and authority to sell,
transfer and deliver in the manner provided in this Agreement the Shares being
sold by such Selling Stockholders hereunder;
(iii) Assuming the due and valid execution by the other parties
thereto, the Custody Agreement and the Power of Attorney executed and delivered
by each Selling Stockholder is valid and binding upon each Selling Stockholder,
except such counsel may not that the rights to indemnity and contribution
hereunder may be limited by [applicable] law; and
(iv) The delivery by the Selling Stockholders to the several
Underwriters of certificates for the Shares being sold hereunder by the Selling
Stockholders against payment therefor as provided herein, assuming the
Underwriters purchased the Shares in good faith without knowledge of any adverse
claim, will pass good and valid title to such Shares to the several
Underwriters, free and clear of all liens, encumbrances, equities and claims
whatsoever.
