EXHIBIT 1.1
UNDERWRITING AGREEMENT
ROWECOM INC.
_______ Shares of Common Stock
Underwriting Agreement
________ __, 1999
J.P. Morgan Securities Inc. CIBC Oppenheimer Volpe Brown Whelan & Company As representatives of the several underwriters listed in Schedule I hereto c/o J.P. Morgan Securities Inc. 60 Wall Street New York, New York 10260
Ladies and Gentlemen:
RoweCom Inc., a
Delaware corporation (the "Company"), proposes to issue and sell to the several underwriters listed in Schedule I hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives") an aggregate of __________ shares of Common Stock, par value $.01 per share, of the Company (the "Underwritten Shares") and, for the sole purpose of covering over-allotments in connection with the sale of the Underwritten Shares, at the option of the Underwriters, up to an additional _________ shares of Common Stock of the Company (the "Option Shares"). The Underwritten Shares and the Option Shares are herein referred to as the "Shares". The shares of Common Stock of the Company to be outstanding after giving effect to the sale of the Shares are herein referred to as the "Stock". As part of the offering contemplated by this Agreement, J.P. Morgan Securities Inc. has agreed to reserve out of the Shares set forth opposite its name on Schedule I to this Agreement up to _________ Shares for sale to the Company's employees, officers and directors and other parties associated with the Company (collectively, "Participants"), as set forth in the Prospectus under the heading "Underwriting" (the "Directed Share Program"). The Shares to be sold pursuant to the Directed Share Program (the "Directed Shares") will be sold pursuant to this Agreement at
the public offering price. Any Directed Shares not orally confirmed for purchase by any Participants by the end of the first business day after the date on which this Agreement is executed will be offered to the public as set forth in the Prospectus.
The Company has prepared and filed with the Securities and Exchange Commission (the "Commission") in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the "Securities Act"), a registration statement, including a prospectus, relating to the Shares. The registration statement as amended at the time when it shall become effective, including information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act, is referred to in this Agreement as the "Registration Statement", and the prospectus in the form first used to confirm sales of Shares is referred to in this Agreement as the "Prospec tus". If the Company files or has filed on the date hereof an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement") in connection with the transactions contemplated hereby, then any reference herein to the term "Registration Statement" shall be deemed to include such Rule 462 Registration Statement.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Underwritten Shares to the several Underwriters as hereinafter provided, and each Underwriter, on the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase, severally and not jointly, from the Company the respective number of Underwritten Shares set forth opposite such Underwriter's name in Schedule I hereto at a purchase price per share of $______ (the "Purchase Price").
In addition, the Company agrees to issue and sell the Option Shares to the several Underwriters as hereinafter provided and the Underwriters shall have the option to purchase at their election up to ________ Option Shares for the sole purpose of covering over-allotments in the sale of the Underwritten Shares. Each Underwriter, on the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, shall have the option to purchase, severally and not jointly, from the Company at the Purchase Price that portion of the number of Option Shares as to which such election shall have been exercised (to be adjusted by you so as to eliminate fractional shares) determined by multiplying such number of Option Shares by a fraction the numerator of which is the number of Underwritten Shares set forth opposite such Underwriter's name on Schedule I hereto and the denominator of which is the total number of Underwritten Shares set forth in Schedule I hereto, for the sole purpose of
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covering over-allotments (if any) in the sale of the Underwritten Shares by the several Underwriters.
The Underwriters may exercise the option to purchase the Option Shares at any time (but not more than once) on or before the thirtieth day following the date of this Agreement, by written notice to the Company from J.P. Morgan Securities Inc. on behalf of the several Underwriters. Such notice shall set forth the aggregate number of Option Shares as to which the option is being exercised and the date and time when the Option Shares are to be delivered and paid for, which may be the same date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date nor later than the tenth full Business Day (as hereinafter defined) after the date of such notice (unless such time and date are postponed in accordance with the provisions of Section 9 hereof). Any such notice shall be given at least two Business Days prior to the date and time of delivery specified therein.
2. The Company understands that the several Underwriters intend (i) to make a public offering of their respective portions of the Shares as soon after (A) the Registration Statement has become effective and (B) the parties hereto have executed and delivered this Agreement, as in the judgment of the Representatives is advisable and (ii) initially to offer the Shares upon the terms set forth in the Prospectus.
3. Payment for the Shares shall be made by wire transfer in immediately available funds to the account specified by the Company to the Representatives, in the case of the Underwritten Shares, at 10:00 a.m., New York City time, on ___________, 1999, or at such other time on the same or such other date, not later than the fifth Business Day thereafter, as J.P. Morgan Securities Inc. on behalf of the several Underwriters and the Company may agree upon in writing or, in the case of the Option Shares, on the date and at the time specified by J.P. Morgan Securities Inc. in the written notice of the Underwriters' election to purchase such Option Shares or at such other time on the same or such other date, not later than the fifth Business Day thereafter, as J.P. Morgan Securities Inc. on behalf of the several Underwriters and the Company may agree upon in writing. The time and date of such payment for the Underwritten Shares is referred to herein as the "Closing Date" and the time and date for such payment for the Option Shares, if other than the Closing Date, are herein referred to as the "Additional Closing Date". The closing and additional closing, if any, shall take place at the offices of Bingham Dana LLP, Boston, MA. As used herein, the term "Business Day" means any day other than a day on which banks are permitted or required to be closed in New York City.
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Payment for the Shares to be purchased on the Closing Date or the Additional Closing Date, as the case may be, shall be made only against delivery to the Representatives for the respective accounts of the several Underwriters of the Shares to be purchased on such date, registered in such names and in such denominations as the Representatives shall request in writing not later than two full Business Days prior to the Closing Date or the Additional Closing Date, as the case may be, with any transfer taxes payable in connection with the transfer to the Underwriters of the Shares duly paid by the Company. The certificates for the Shares, if any, will be made available for inspection and packaging by the Representatives at the office of J.P. Morgan Securities Inc. set forth above not later than 1:00 P.M., New York City time, on the Business Day prior to the Closing Date or the Additional Closing Date, as the case may be.
4. The Company represents and warrants to each Underwriter that:
(a) no order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and each preliminary
prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with
the Securities Act, and as of the date thereof did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the foregoing representations and warranties shall not apply to any
statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use therein;
(b) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been
instituted or, to the knowledge of the Company, threatened by the
Commission; the Registration Statement and Prospectus (and the Registration
Statement and Prospectus as amended or supplemented, if the Company shall
have furnished any amendments or supplements thereto) comply, and will
comply, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the date of the Prospectus
and any amendment or supplement thereto, in all material respects with the
Securities Act and do not and will not, as of the applicable effective date
as to the Registration Statement and any amendment thereto and as of the
date of the Prospectus and any amendment or supplement thereto, contain any
untrue statement of a
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material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Prospectus, as amended or supplemented, if applicable, at the Closing Date
and the Additional Closing Date, if any, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that the foregoing representations and
warranties shall not apply to statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use therein;
(c) the financial statements, and the related notes thereto,
included in the Registration Statement and the Prospectus present fairly
the consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations
and changes in their consolidated cash flows for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis, and the
supporting schedules included in the Registration Statement present fairly
the information required to be stated therein; and the pro forma financial
information, and the related notes thereto, included in the Registration
Statement and the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act and is based upon good faith
estimates and assumptions believed by the Company to be reasonable;
(d) the statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
are reliable and accurate;
(e) since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries, or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general affairs,
business, prospects, condition (financial or other), management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus (as it stood at the time of the execution
and delivery of this Agreement) and except as set forth or contemplated in
the Prospectus (as it stood at the time of the execution and delivery of
this Agreement) neither the Company nor any of
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its subsidiaries has entered into any transaction or agreement (whether or
not in the ordinary course of business) material to the Company and its
subsidiaries taken as a whole;
(f) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(g) each of the Company's subsidiaries has been duly incorporated
and is validly existing as a corporation under the laws of its jurisdiction
of incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so qualified
or in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole; and all the outstanding shares of
capital stock of each subsidiary of the Company have been duly authorized
and validly issued, are fully-paid and non-assessable, and (except, in the
case of Rowe Communications Ltd., for a single share of common stock owned
by Ron Grigg) upon consummation of the Transactions (as defined below) will
be owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(h) this Agreement has been duly authorized, executed and delivered
by the Company;
(i) the Company has an authorized capitalization as set forth in
the Prospectus and such authorized capital stock conforms as to legal
matters to the description thereof set forth in the Prospectus, and all of
the outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully-paid and non-assessable and are
not subject to any pre-emptive or similar rights; and, except for this
Agreement and as described in or expressly contemplated by the
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Prospectus, there are no outstanding rights (including, without limitation,
pre-emptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or other
equity interest in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to
the issuance of any capital stock of the Company or any such subsidiary,
any such convertible or exchangeable securities or any such rights,
warrants or options;
(j) the shares of capital stock of the Company to be issued
pursuant to (i) the transactions (the "Transactions") described in the
Prospectus under "Certain Transactions" and under footnote 3 to the table
included under the heading "Capitalization" (including any shares of
preferred stock) and (ii) the stock options described in the Prospectus
under "Stock Incentive Plans" and any options granted outside the plans
described thereunder have been duly authorized and, when issued, will be
validly issued, fully-paid and non-assessable and will not be subject to
any preemptive or similar rights;
(k) the Shares to be issued and sold by the Company hereunder have
been duly authorized, and, when issued and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be duly
issued and will be fully paid and non-assessable and will conform to the
descriptions thereof in the Prospectus; and the issuance of the Shares is
not subject to any preemptive or similar rights that have not been waived;
(l) neither the Company nor any of its subsidiaries is, or with the
giving of notice or lapse of time or both, or after giving effect to the
Transactions, would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for such violations and
defaults which individually and in the aggregate are not material to the
Company and its subsidiaries, taken as a whole; the issue and sale of the
Shares and the performance by the Company of its obligations under this
Agreement and the consummation of the Transactions and the transactions
contemplated hereby will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
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property or assets of the Company or any of its subsidiaries is subject,
except for such conflicts, breaches or defaults which individually and in
the aggregate are not material to the Company and its subsidiaries taken as
a whole; nor will any such action result in any violation of the provisions
of the Certificate of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, license, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Shares or the consummation by the Company of the
Transactions or the transactions contemplated by this Agreement, except
such consents, approvals, authorizations, orders, licenses, registrations
or qualifications as have been obtained under the Securities Act and as may
be required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Shares by the Underwriters;
(m) there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries or
any of their respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of the Company
or any of its subsidiaries is or may be the subject which, if determined
adversely to the Company or any of its subsidiaries, could individually or
in the aggregate have, or reasonably be expected to have, a material
adverse effect on the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required;
(n) the Company and its subsidiaries have good and marketable title
in fee simple to all items of real property and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to
in the Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made or proposed to be made of
such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its
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subsidiaries are held by them under valid, existing and enforceable leases
with such exceptions as are not material and do not materially interfere
with the use made or proposed to be made of such property and buildings by
the Company or its subsidiaries;
(o) no relationship, direct or indirect, exists between or among
the Company or any or its subsidiaries on the one hand, and the directors,
officers, stockholders, clients, publishers, content providers or suppliers
of the Company or any entity with whom the Company has a strategic alliance
or any of their subsidiaries on the other hand, which is required by the
Securities Act to be described in the Registration Statement and the
Prospectus which is not so described;
(p) no person has the right to require the Company to register any
securities for offering and sale under the Securities Act by reason of the
filing of the Registration Statement with the Commission or the issue and
sale of the Shares except as described in the Prospectus;
(q) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and its subsidiaries, are independent
public accountants as required by the Securities Act;
(s) except as disclosed in the Prospectus, the Company and its
subsidiaries have filed all federal, state, local and foreign tax returns
which have been required to be filed and have paid all taxes shown thereon
and all assessments received by them or any of them to the extent that such
taxes have become due and are not being contested in good faith; and,
except as disclosed in the Registration Statement and the Prospectus, there
is no tax deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company or any subsidiary, except for
such deficiencies as will not have, individually or in the aggregate, a
material adverse effect on the general affairs, business, prospects,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole;
(t) the Company has not taken nor will it take, directly or
indirectly, any action designed to, or that might be reasonably expected
to,
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cause or result in stabilization or manipulation of the price of the
Common Stock;
(u) each of the Company and its subsidiaries owns, possesses or has
obtained all licenses, permits, certificates, consents, orders, approvals
and other authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities
(including foreign regulatory agencies), all self-regulatory organizations
and all courts and other tribunals, domestic or foreign, necessary to own
or lease, as the case may be, and to operate its properties and to carry on
its business as conducted as of the date hereof, except for such licenses,
permits, certificates, consents, orders or other approvals, the absence of
which will not have, individually or in the aggregate, a material adverse
effect on the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, and neither the Company nor any such
subsidiary has received any actual notice of any proceeding relating to
revocation or modification of any such license, permit, certificate,
consent, order, approval or other authorization, except as described in the
Registration Statement and the Prospectus; and each of the Company and its
subsidiaries is in compliance with all laws and regulations relating to the
conduct of its business as conducted as of the date hereof, except for such
instances of non-compliance as shall not have, individually or in the
aggregate, a material adverse effect on the general affairs, business,
prospects, management, financial position, stockholders' equity or results
of operations of the Company and its subsidiaries, taken as a whole;
(v) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
subsidiaries which are likely to have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(w) each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement ...