Underwriting Agreement - E-centives Inc. and swissfirst Bank AG
e-centives, Inc.
Shares of Common Stock
(nominal value USD 0.01 each)
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Underwriting Agreement
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September [_], 2000
swissfirst Bank AG
Bellariastrasse 23
8002 Zurich
Switzerland
(the "LEAD MANAGER")
The Managers named in Schedule 1 hereto
(the "MANAGERS")
Dear Sirs:
This agreement relates to the proposed offer and sale by e-centives, Inc. (the
"COMPANY") of 3,700,000 shares (the "OFFERED SHARES") of the Company's common
stock with a par value of USD 0.01 each. The Company is a stock corporation
incorporated under the laws of the State of Delaware with its principal offices
in Bethesda, Maryland, U.S.A. :
By a resolution of the Board of Directors of the Company dated September [ ],
2000, the Company authorized the issuance of the Offered Shares (the
"OFFERING"); the existing shareholders of the Company have waived the rights to
subscribe the Offered Shares. As of September [a], 2000, prior to the issuance
of the Offered Shares the Company has issued and outstanding [ ] fully paid
shares of common stock (referred to hereinafter from time to time as the
"SHARES") with a par value of USD 0.01 each.
The Lead Manager, together with the Managers, proposes, subject to the terms and
conditions stated herein, to purchase the Offered Shares and to sell to
investors the Offered Shares as set out herein.
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A registration statement on Form S-1, and [three] amendments thereto, with
respect to the Offered Shares has (i) been prepared by the Company in conformity
with the requirements of the United States Securities Act of 1933 (the
"Securities Act") and the rules and regulations (the "Rule and Regulations") of
the United States Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities Act and
(iii) become effective under the Securities Act. Copies of such registration
statement and the amendments thereto have been delivered by the Company to you
as the Lead Manager. As used in this Agreement, "Effective Time" means the date
and the time as of which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities Act;
"Registration Statement" means such registration statement, as amended at the
Effective Time, including all information contained in the final prospectus
filed with the Commission and "Prospectus" means such final prospectus, as first
filed with the Commission after the Registration Statement became effective (the
Preliminary Prospectus and the Final Prospectus are referred to herein
collectively as the "OFFERING DOCUMENTS"). The Company hereby confirms that it
has authorised the use by the Managers of the Offering Documents, as the same
may be amended or supplemented by the Company from time to time, in connection
with the offer and sale of the Offered Shares, so long as such use by the
Managers does not violate applicable law.
You have informed us that the Managers are simultaneously entering into an
agreement among Managers which sets forth certain understandings and agreements
among the Managers in connection with the offer and sale of the Offered Shares
contemplated hereby. You have also informed us that the Managers will only use
the Offering Documents, as amended or supplemented, in connection with the offer
and sale of the Offered Shares contemplated hereby and in compliance with
applicable law.
1. Subscription, Sale, Underwriting, Purchase and Listing
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth:
(a) Subscription of Offered Shares by the Lead Manager
(i) The Company agrees to sell the Offered Shares to
the Lead Manager and the Lead Manager agrees to
purchase the Offered Shares. The price of the
Offered Shares shall be CHF [--] per share (the
"PER SHARE PRICE"). The aggregate "Purchase
Price" of the Offered Shares shall be paid as
follows:
(1) The Lead Manager will pay the Company,
at a non-interest bearing account to
be opened by the Company with the Lead
Manager on or before the next business
day following the date of this
Agreement, the amount of USD 0.01 per
Offered Share (the "NOMINAL AMOUNT");
and
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(2) The Lead Manager will pay the balance
of the Purchase Price converted into
USD at the USD/CHF exchange rate
appearing on the Closing Date as of
2.00 p.m. (Zurich time) on Reuter
Screen (at present page USD=CHF) on
the Closing Date as set forth in
Section 4(c) herein.
In consideration of the payment of the Nominal
Amount and the obligation of the Lead Manager
to pay for the balance of the Per Share Price
as provided in Section 1(a)(i) herein, the
Company shall issue the Offered Shares to the
Lead Manager and the Company shall prepare, or
cause to be prepared a stock certificate
representing the Offered Shares (the "Global
Certificate") in the name of the Lead Manager;
provided that the Company shall be under no
obligation to deliver the Global Certificate
(or any other certificate representing the
Offered Shares) to the Lead Manager unless and
until the transactions contemplated to occur
on the Closing Date are consummated in
accordance with Section 4 hereof.
(ii) Upon receipt of the full Nominal Amount, the
Company will take all steps necessary to
ensure that the Offered Shares will be duly
and validly issued to the Lead Manager and
will be freely transferable by the Lead
Manager as set forth in this Agreement. The
Company will, if and when reasonably requested
by the Lead Manager, take all steps necessary
to record all issued and outstanding shares of
the Company with SIS SegaInterSettle AG
("SIS"), the Swiss securities services
corporation.
(iii) Immediately after the issuance of the Offered
Shares as provided in Section 1(a)(i) hereof,
the Company will deliver to the Lead Manager
and the SWX Swiss Exchange a written
confirmation of the Company's Secretary
evidencing the Company's outstanding capital
stock.
(b) The Company mandated the Lead Manager to make an application
on its behalf for the Shares to be listed for trading on the
New Market segment of the SWX Swiss Exchange; and the Lead
Manager agreed to make such application and to use its best
efforts to obtain such listing as promptly as possible.
(c) In consideration of the agreement by the Lead Manager to
purchase Offered Shares as set forth above, the Company
shall pay to the Lead Manager aggregate management, selling
and underwriting commissions of 7 (seven) per cent of the
Per Share Price per Offered Share sold in the Offering (the
"MANAGERS' COMMISSION"). The Lead Manager shall be entitled
to deduct the Managers' Commission from the Per Share Price
to be paid for the Offered Shares pursuant to Section 4 of
this Agreement. The Lead Manager will arrange the
distribution of the Managers' Commission to the other
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Managers in accordance with the terms and conditions of an
agreement among managers.
2. Representations and Warranties
(a) The Company represents and warrants to each Manager that:
(i) Each Preliminary Prospectus, at the date
thereof, did not and does not contain any
untrue statement of a material fact or omit to
state any material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading, and the Final Prospectus, at the
date thereof and, as it may thereafter be
amended or supplemented, at the date of any
such amendment or supplement and on the
Closing Date (as defined in Section 4 hereof),
will not contain any untrue statement of a
material fact or omit to state any material
fact necessary to make the statements therein,
in the light of the circumstances under which
they were made, not misleading, insofar as
material to the business or financial
condition of the Company and any opinions and
beliefs expressed in the Preliminary
Prospectus are truly and honestly held;
provided that no representation or warranty is
made as to information contained or omitted
from the Offering Documents in reliance upon
and in conformity with information furnished
to the Company through the Lead Manager or its
representatives on behalf of the Managers.
(ii) The issued and outstanding share capital of
the Company is as set forth in the Offering
Documents under the heading "Description of
Capital Stock"; all of the issued and
outstanding Shares (other than the Offered
Shares) have been validly issued, are fully
paid and no amounts were repaid and the
Offered Shares, when issued, paid as provided
in Section 1 (a) and delivered by the Company,
will be validly issued; the Offered Shares
conform in all material respects to all
statements relating thereto contained in the
Offering Documents; and the Offered Shares
will be issued free from all pledges, adverse
claims, equities, liens and other third party
rights of any nature whatsoever and the
subscribers thereof will be entitled to
participate in all dividends and other
distributions hereafter declared, paid or made
on or in respect of the shares of the Company;
(iii) Except as described in the Offering Documents,
there are no outstanding securities of the
Company convertible into or exchangeable for,
or warrants, rights or options to purchase
from the Company, or obligations of the
Company to issue, the Shares or any other
class of shares of the Company (except as
described in the Offering Documents).
(iv) Except as described in the Offering Documents,
there has been no legal or arbitration
proceeding by or against the Company within
the last two years
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that has had, and the Company does not believe
that there are any pending or threatened legal
or arbitration proceedings by or against it
which would have a material adverse effect on
the business or financial condition of the
Company.
(v) Except as described in the Offering Documents,
the Company own or have had licensed to them
or otherwise have the benefit or use under the
authority of the owners thereof of all
patents, patent rights, inventions,
trademarks, service marks, trade names and
copyrights (in each case, registered or not)
which are necessary for the conduct of the
business of the Company as currently conducted
as described in the Offering Documents; and,
except as described in the Offering Documents,
there are no unresolved claims that the
Company has infringed any patents, patent
rights, inventions, trademark rights, service
marks, trade names or copyrights of others
and, to the best knowledge of the Company, no
persons are infringing the patents, patent
rights, inventions, trademark rights, service
marks, trade names or copyrights of the
Company, which would be reasonably likely to
have a material adverse effect on the business
or financial condition of the Company.
(vi) The Company has all material concessions,
licenses, franchises, permits, authorizations,
approvals and orders of and from all
governmental regulatory officials and bodies
that are necessary to own or lease its
properties and to conduct its business as
currently conducted.
(vii) No material labour dispute with the employees
of the Company exists or, to the knowledge of
the Company, is threatened or imminent.
(viii) The Company is not in violation of any
applicable law or regulation relating to
occupational safety and health or to the
storage, handling or transportation of
hazardous or toxic materials, and the Company
has received, and is in compliance with all
terms and conditions of, all permits, licenses
and other approvals required of it under
applicable occupational safety and health and
environmental laws and regulations to conduct
its business as currently conducted; except
where failure to comply would not have a
material adverse effect on the business or
financial condition of the Company.
(ix) The Company is not currently prohibited from
paying any dividends or from making any other
distribution on the Company's capital stock,
respectively, out of surplus (as defined by
applicable law) or from repaying to the
Company or its shareholders, respectively, any
loans or advances to the Company from such
shareholders.
(x) No default exists, and no event has occurred
which, with the giving of notice or lapse of
time or both, would constitute a default in
the due performance and observance of any
term, covenant or condition of any
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indenture, mortgage, deed of trust, loan
agreement or other material agreement or
instrument to which the Company is a party or
by which the Company is bound or to which any
of the property or assets of the Company is
subject, which default is, or could become,
material to the business or financial
condition of the Company.
(xi) Except as disclosed in the Offering Documents,
since January 1, 2000, (A) the Company has not
sustained any material loss or interference
with its business from fire, explosion, flood
or other calamity, whether or not covered by
insurance, or from any labor dispute or court
or governmental action, order or decree, (B)
there has not been any change in the capital
stock of the Company, or any increase in
long-term debt or any decrease in
shareholders' equity of the Company, (C) there
has not been any significant decrease, when
compared to the comparable period in the prior
year, in sales, operating income or net income
of the Company, (D) there has not been any
material adverse change, or any development
reasonably likely to result in a material
adverse change, in or affecting the condition
(financial or otherwise), business,
shareholders' equity or results of operations
of the Company.
(xii) The annual and interim financial statements
set forth in the Offering Documents were
prepared in accordance with US generally
accepted accounting principles (US GAAP),
subject in the case of interim financial
statements, to normal year-end adjustments
(the effect of which will not, individually or
in the aggregate, be materially adverse) and
the absence of notes, and presents fairly the
financial position of the Company at and as of
the dates specified therein.
(xiii) The Company has complied with all requirements
under its respective law of incorporation to
file its financial statements (or other
financial information) with the respective
local court, commercial register or other
applicable governmental authority, entity or
court, and with all other publication,
notification or registration requirements
relating thereto, if any.
(xiv) 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 full corporate power and
authority to enter into this Agreement and
consummate the transactions contemplated
herein and to own its properties and conduct
its business as currently conducted, and has
been duly qualified as a foreign corporation
for the transaction of business under the laws
of each jurisdiction other than its
jurisdiction of incorporation in which it owns
or leases properties or conducts any business
so as to require such qualification, except
where the failure to be so qualified would
not, individually or in the aggregate, have a
material adverse effect on the condition
(financial or otherwise), business,
shareholders' equity or results of operations
of the Company.
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(xv) This Agreement has been duly authorised,
executed and delivered by the Company and
constitutes the legal, valid, binding and
enforceable obligation of the Company, subject
to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights
generally and subject, as to enforceability,
to general principles of equity.
(xvi) The execution and delivery of, compliance with
and consummation of the transactions
contemplated by this Agreement by the Company
will not
(A) conflict with or 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 or other agreement
or instrument to which the Company is a
party or by which the Company is bound
or to which any of the property or
assets of the Company is subject; or
(B) result in a violation of the provisions
of the constitutive documents of the
Company, or any statute, or any order,
rule or regulation of any court or
governmental agency or body having
jurisdiction over the Company or any of
its properties,
which conflict, breach, violation or default
would have a material adverse effect on the
business or financial condition of the Company
or would impair the ability of the Company to
consummate, or would otherwise materially
adversely affect, the transactions
contemplated hereby; and no consent, approval,
authorization, order, registration or
qualification of or with any such court or
governmental agency or body is required for
the consummation by the Company of the
transactions contemplated by this Agreement,
except (i) the approval for listing of the
Shares by the SWX Swiss Exchange, and (ii)
such as have already been obtained and are in
full force and effect.
(xvii) Neither the Company, nor any person acting
with its or their authority on its behalf
(other than the Managers), has, directly or
indirectly, made offers or sales of any
security, or solicited offers to buy any
security, under circumstances that would
require the registration of the Offered Shares
under the securities laws of any country other
than Switzerland and the U.S.A.
(xviii) The Company has not paid or agreed to pay to
any person any compensation for soliciting
another to purchase any Offered Shares which
are purchased by the Managers (except as
contemplated by this Agreement).
(xix) Except for the taxes referred to in Section
5(a)(viii), no other stamp or issuance or
transfer taxes or duties, and no capital
gains, income, with-
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holding or other taxes are payable in the
United States or to any political subdivision
or taxing authority thereof or therein by or
on behalf of any purchaser of Offered Shares
from the Company or the Managers in connection
with the sale and delivery by it of Offered
Shares to or for the respective accounts of
such purchaser or the Managers in the manner
contemplated by this Agreement.
(xx) The Company has obtained public liability,
property and other insurance to the extent
customary for the operation of its business,
and all related policies of insurance are, and
will be on the Closing Date, in full force and
effect.
3. Offering by the Managers
The Managers propose to offer the Offered Shares for sale upon the
terms and conditions set forth in the Offering Documents, as amended or
supplemented. In this connection, each Manager represents and agrees
that:
(a)
It has complied and will comply with all applicable Swiss
laws and rules, regulations and governement and stock
exchange orders, if any.
(b) Save in relation to offers and sales in Switzerland and the
U.S.A., where the Offered Shares have been registered, but
no offers or sales have been or will be made, no action has
been or will be taken in any jurisdiction by the Managers
that would permit a public offering of the Offered Shares or
possession or distribution of any Offering Document or any
other offering or publicity material relating to the Offered
Shares in any country or jurisdiction where action for that
purpose is required. Each Manager will comply with all
applicable laws and regulations in each jurisdiction in
which it acquires, offers, sells or delivers the Offered
Shares or has in its possession or distributes any Offering
Document or any such other material. The Company will have
no responsibility for, and each Manager will obtain any
consent, approval or permission required by it for, the
acquisition, offer, sale or delivery by it of the Offered
Shares under the laws and regulations in force in any
jurisdiction to which it is subject or in or from which it
makes any acquisition, offer, sale, or delivery. No Manager
is authorised to make any representation or use any
information in connection with the issue and sale of the
Offered Shares other than as contained in the Offering
Documents or any amendment or supplement thereto.
(d) It has complied and will comply with all applicable US laws
and rules, regulations and governmental and stock exchange
orders, if any.
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4. Delivery and Payment
(a) At the latest two Business Days immediately preceding the
Closing Date (as defined in Section 4 (d) below), the
Managers shall give instructions to the Lead Manager as to
the number of Offered Shares to be credited against payment
of the Per Share Price on the Closing Date to the accounts
of the Managers through the book-entry facilities of SIS,
Clearstream Banking, societe anonyme ("CLEARSTREAM") and
Morgan Guaranty Trust Company of New York, as operator of
the Euroclear System ("EUROCLEAR") together with the details
of such accounts. As used in this Agreement, "BUSINESS DAY"
means each day on which the SWX Swiss Exchange ("SWISS
EXCHANGE") is open for dealings.
(b) On or before the Business Day immediately preceding the
Closing Date, the Lead Manager and the Managers,
respectively, shall give instructions to SIS, Clearstream
Banking and Euroclear, respectively, as to the number of
Offered Shares to be settled on the Closing Date through the
facilities of SIS, Clearstream Banking or Euroclear,
together with the details of such accounts.
(c) On the date no later than the [4th] business day following
the initial listing and trading of the Offered Shares on the
SWX New Market of the SWX Swiss Exchange, or at such other
date as the Company and the Lead Manager may agree (the
"CLOSING DATE"), the following payments shall be made with
value as of the Closing Date:
(i) Each Manager shall pay the Per Share Price for
the Offered Shares purchased by it in CHF in
the amounts and to the account or accounts to
be notified to it by the Lead Manager.
(ii) The Lead Manager shall pay to the Company the
Per Share Price for the Offered Shares less
the Nominal Amount to the extent paid and the
Managers' Commission for the Offered Shares.
All payments referred to in this Section 4 shall be credited
with value as of the Closing Date to the relevant parties at
the designated accounts in immediately available funds.
(e) The documents to be delivered on the Closing Date by or on
behalf of the parties hereto pursuant to Section 7 hereof
will be delivered at the offices of the Lead Manager in
Zurich or at such other location as the parties hereto may
agree (the "CLOSING LOCATION") on the Closing Date.
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5. Agreements
The Company agrees with each Manager as follows:
(i) The Company has prepared and will prepare, as the case may be,
the Offering Documents in a form mutually acceptable to the
Company and the Lead Manager and, unless such amendment or
supplement is required to correct a material misstatement or
material omission or to comply with any applicable laws and
regulations, including the Securities Act and the Rules and
Regulations, will make no amendment or supplement to any
Offering Document without the prior written consent of the Lead
Manager, which consent shall not be unreasonably withheld or
delayed.
(ii) The Company will furnish to the SWX Swiss Exchange any and all
documents (including, without limitation, an updated excerpt
from the commercial register), instruments, information and
warranties that may be necessary or advisable in order to
obtain and maintain the listing of the Shares for trading on
the SWX New Market segment of the Swiss Exchange. The Company
will sign the Offering Documents, including the relevant
prospectus and any other necessary documents to conform with
the listing requirements of the SWX New Market segment of the
Swiss Exchange, and will deliver the same to the Lead Manager
in due course to ensure the timely listing of the Shares.
(iii) The Company will furnish to the Lead Manager and its counsel,
as many copies of each Offering Document as the Lead Manager
may from time to time reasonably request, and if, prior to the
completion of the distribution of the Offered Shares (as
determined by the Lead Manager) but not later than 30 days
after the Closing Date, any event shall have occurred as a
result of which any Offering Document as then amended or
supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it should be
necessary to amend or supplement any Offering Document to
comply with applicable law, the Company, immediately upon
becoming aware of any such event or necessity, will notify the
Lead Manager and upon its request prepare and furnish to each
Manager as many copies as the Lead Manager may from time to
time reasonably request of amended Offering Documents or
supplements to the Offering Documents which will correct such
statement or omission or will effect such compliance.
(iv) Neither the Company nor any person acting with its or their
authority on its or their behalf (other than the Managers)
will, directly or indirectly, make offers or sales of any
security, or solicit offers to buy any security, under
circumstances that would require the registration of the
Offered Shares under the securities laws of any country other
than Switzerland and the U.S.A.
(v) It will bear and pay any stamp, transfer, registration,
documentary or similar taxes or duties (including interest and
penalties, if any) in connection with (A) the issue of the
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Offered Shares (B) the sale of the Offered Shares to the Lead
Manager and (C) the sale of the Offered Shares from the Lead
Manager to the purchasers of the Offered Shares. The Lead
Manager will effect payment of the taxes and duties referred to
under (B) and (C) above to the relevant authorities, whereas
the Company will effect payment of the taxes and duties
referred to under (A) above.
6. Payment of Expenses
The Company covenants and agrees with the Lead Manager that, in
addition to its other obligations hereunder, it will pay or cause to be
paid the following:
(i) all expenses in connection with the preparation and filing of
the Offering Documents and any amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Managers;
(ii) such expenses and listing fees as required in connection with
the listing of the Shares for trading on the SWX New Market
segment of the Swiss Exchange;
(iii) the cost of preparing certificates in definitive form
representing Offered Shares if required by purchasers of the
Offered Shares;
(iv) the fees and expenses of its outside legal, financial and other
advisors in connection with the transactions contemplated
herein;
(v) the fees and expenses of the Company's independent accountants
KPMG in connection with certain confirmations and other reports
given by them in connection with the preparation of the
Offering Documents and the offer and sale of the Offered
Shares; and
(vi) all other costs and expenses incident to the performance of its
obligations hereunder.
The Lead Manager coventants and agrees with the Company that, in
addition to its other obligations hereunder, it will pay or cause to be
paid the following:
(i) all expenses in connection with the printing and distribution
of the Offering Documents and supplements thereto, including
the mailing and delivering of copies thereof to the Managers
and the investors;
(ii) the cost and expenses of the Lead Manager in connection with
the preparation of materials for "road show" presentations to
be made to prospective investors; and
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(iii) the fees and expenses of its outside legal, financial and other
advisors in connection with the transactions contemplated
herein;
(iv) all other costs and expenses incident to the performance of its
obligations hereunder.
7. Conditions Precedent; Termination
(a) The obligations of the Lead Manager to purchase and pay for
the Offered Shares and to procure investors set forth in
Section 1 and Section 4, as the case may be, are subject to
the satisfaction of the following conditions precedent (to
the extent the obligations are not to be performed prior to
the date of the occurrence of such conditions):
(i) The Commission has not issued any order preventing
or suspending the use of any Preliminary Prospectus.
(ii) there having been no event making any of the
undertakings and warranties contained in Sections 2
or 5 untrue or incorrect and the Company not having
been in non-compliance with any of their other
undertakings and covenants set forth in this
Agreement, in each case material for the Offering;
(iii) approval by the Admission Board (Zulassungsstelle)
of the SWX Swiss Exchange of the application for the
Shares to be listed for trading on the SWX New
Market segment of the Swiss Exchange;
(iv) delivery to the Managers, except to the extent
waived by the Lead Manager in writing (x) on the
date hereof and (y) on the Closing Date:
(A) legal opinions, substantially in the agreed
form, from Hogan & Hartson, L.L.P., transaction
counsel to the Company;
(B) certificates addressed to the Managers signed
by the Company and dated the Closing Date to
the effect stated in Section 7(a)(ii) as
regards their respective warranties and
undertakings contained in Sections 2 and 5;
(C) a comfort letter from the auditors of the
Company substantially in the agreed form; and
(v) a resolution by the Board of Directors of the
Company authorising and approving the Offering and
all actions taken or to be taken in connection
therewith including, without limitation, the
execution and delivery of this Agreement and the
implementation of all transactions contemplated
hereby; and
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(vi) execution and delivery of an agreement with the
Company's Registrar and Transfer Agent,
substantially in the agreed form; and
(vii) delivery by the Company at closing of the Global
Certificate.
Documents in the agreed form means documents in the form
signed for identification on the date hereof by the Lead
Manager.
If any of the foregoing conditions set forth in Section
7(a)(ii), (iii) (iv) and (v) is not satisfied between the
date hereof and the Closing Date, or if the Lead Manager has
determined that a Material Adverse Change as contemplated
under Section 8 of this Agreement has occurred, the Lead
Manager may terminate this Agreement and the Managers shall
be released and discharged from their respective obligations
hereunder.; provided that once the Company repays to the
Lead Manager the Nominal Amount, the neither the Lead
Manager nor any other party shall have any rights of any
kind in or to the Offered Shares (which shall be cancelled)
and the Company shall have no obligation to deliver the
Global Certificate (or any other certificate representing
any or all of the Offered Shares) to the Lead Manager or any
other third party; provided further that the Lead Manager
shall execute and deliver any and all agreements,
certificates or other documents reasonably requested by the
Company to evidence the foregoing.
(b) Notwithstanding the foregoing provisions of this Section 7,
(i) the obligations of the Company to pay the costs,
charges and expenses, to the extent incurred, as
provided for in Section 6 shall continue in full
force and effect; and
(ii) any liability (including as to indemnification) as a
result of any prior breach of the provisions of this
Agreement shall continue in full force and effect.
8. Material Adverse Change
The Lead Manager may terminate this Agreement in accordance with
Section 7 of this Agreement from the date hereof until the Closing
Date, in relation to the obligations of the Managers to purchase the
Offered Shares other than the Offered Shares, if, in either case, in
the opinion of the Lead Manager (i) there has been, since the time of
execution of this Agreement or since the respective dates as of which
information is given in the Offering Documents, except as disclosed in
the Offering Documents, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects or the Company considered as one enterprise, whether
or not arising in the ordinary course of business; or (ii) there has
occurred any material adverse change in the financial markets in the
United Kingdom, the United States, Switzerland or the international
financial markets, any outbreak of hostilities or escalation thereof or
other calamity or crisis or any change or
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<PAGE> 14
development involving a prospective change in national or international
political, financial or economic conditions in the United Kingdom, the
United States or Switzerland and the effect of such change or
development is such as to make it impossible or impracticable to market
the Offered Shares or to enforce contracts for the sale of the Offered
Shares; or (iii) trading generally on either the Swiss Exchange, the
London Stock Exchange or NASDAQ Stock Market or the New York Stock
Exchange or in the over-the-counter market in Switzerland or in the
United States has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by any of said exchanges or by such
system or by order of the United States Securities and Exchange
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority; or (iv) a banking moratorium has been
declared by the United States, New York State, Switzerland or the
United Kingdom; or (v) there has been a material change, or an official
announcement by a competent authority of a prospective material change,
in Swiss, United Kingdom or United States taxation affecting the
transfer of the Shares; or (vi) there has been a material adverse
change in currency rates; or (vii) there occurred an imposition of
additional exchange controls by Switzerland, any member or associate of
the European Union or the United States (each of the afore (i), (ii),
(iii), (iv), (v), (vi) and (vii) hereinafter referred to as a "MATERIAL
ADVERSE CHANGE").
9. Indemnification
(a) The Company will indemnify and hold harmless each Manager against
any losses, claims, damages or liabilities, joint or several, to
which such Manager may become subject, under Swiss law or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
(i) an untrue statement or alleged untrue statement of a material
fact contained in any Offering Document, including any amendment
or supplement thereto, (ii) the omission or alleged omission to
state in any Offering Document, including any amendment or
supplement thereto, a material fact required to be stated therein
or necessary to make the statements therein in light of the
circumstances under which they were made not misleading or (iii)
any breach by the Company of its respective representations,
warranties or obligations under this Agreement, and will
reimburse each Manager for any legal or other expenses reasonably
incurred by such Manager in connection with defending any such
action or claim as such expenses are incurred.
(b) Each Manager will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company
may become subject, under Swiss law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any breach by such
Manager of its representations, warranties or obligations in this
Agreement, and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
defending any such action or claim as such expenses are incurred.
(c) The Lead Manager will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the
Company may become subject, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof)
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<PAGE> 15
arise out of or are based upon the issuance of the Offered Shares
to the Lead Manager prior to Closing and the Lead Manager's
subsequent transfer of any of the Offered Shares, in the event
that this Agreement is terminated pursuant to Section 7 hereof.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such
subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall have the
option to assume the defense thereof including the employment of
legal advisors approved by the indemnified party (such approval
not to be unreasonably withheld), subject to the payment by the
indemnifying party of all expenses. Any indemnified party shall
have the right to employ separate legal advisors in any such
action and defend or participate in the defense thereof, but the
fees and expenses of such legal advisors shall be borne by such
indemnified party, unless the indemnifying party has specifically
authorised the employment thereof or has failed to assume such
defense and to employ legal advisors approved as a aforesaid for
such purpose. The indemnifying party shall not be liable to
indemnify any indemnified party for any settlement of any claim,
action or demand made without its consent (such consent not to be
unreasonably withheld), unless the indemnifying party fails to
assume the defense thereof and to employ legal advisors as
aforesaid for such purpose.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which any of them may otherwise have
and shall extend, upon the same terms and conditions, to each
officer and director of each Manager and to each person, if any,
who controls, is controlled by or is under common control with
any Manager; and the obligations of the Managers under this
Section 9 shall be in addition to any liability which the
respective Managers may otherwise have and shall extend, upon the
same terms and conditions, to each officer, director and
shareholder of the Company and to each person, if any, who
controls, is controlled by or is under common control with any of
the foregoing (to the extent applicable).
10. Representations and Indemnities to Survive
The respective indemnities, agreements, warranties and other statements
of the Company and the several Managers, as set forth in this Agreement
or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statements as to the results thereof) made by or
on behalf of any Manager or any officer or director of any Manager or
any person who controls, is controlled by or is under common control
with any Manager, or made by or on behalf of the Company or any officer
or director of the Company or any person who controls, is controlled by
or is under common control with the Company, and shall survive delivery
of and payment for the Offered Shares.
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<PAGE> 16
11. Reimbursement on Termination or Default
If for any reason any Offered Shares are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the
Managers through the Lead Manager for all out-of-pocket expenses
approved in writing by the Lead Manager, including fees and
disbursements of counsel, reasonably incurred by the Managers in making
preparations for the purchase, sale and delivery of the Offered Shares
not so delivered by the Company, but the Company shall then be under no
further liability to any Manager in respect of such Offered Shares,
except as provided in Sections 6 and 9 hereof.
12. Stabilisation
The Lead Manager may, to the extent permitted by, and in accordance
with, applicable laws and regulations, overallot and effect
transactions on the Swiss Exchange in connection with the offer and
sale of the Offered Shares with a view to establishing or maintaining
the market price of the Offered Shares at levels which might not
otherwise prevail, and any profit or loss resulting from such
overallotment and stabilisation shall be retained or borne (as the case
may be) by the Lead Manager. The Company shall not as a result of any
action taken by the Lead Manager under this Section 12 be obliged to
issue to the Lead Manager any Shares in excess of the number of Offered
Shares to be sold as set forth in Section 1 of this Agreement.
13. Notices
All statements, requests, notices and agreements, hereunder shall be in
writing with copies to each of the Lead Manager and the Company and if
to the Managers shall be delivered or sent by mail, telex or facsimile
transmission to the Managers care of (i) swissfirst Bank AG,
Bellariastrasse 23, 8002 Zurich, Attention: Capital Markets, facsimile
transmission No. (+41-1) 204-8181 if to e-centives, Inc., 6903
Rockledge Drive, Suite 1200, Bethesda, Maryland U.S.A., 20817,
Attention: General Counsel, facsimile transmission No. (301) 564-6250.
Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
14. Successors
This Agreement shall be binding upon, and inure solely to the benefit
of, the Managers, the Company and, to the extent provided in Section 9
hereof, the officers, directors and shareholders of, and each person
who controls, is controlled by or is under common control with the
Company, or any Manager, and their respective successors and assigns,
and no other person shall acquire or have any right under or by virtue
of this Agreement. No purchaser of any of the Offered Shares from any
Manager shall be deemed a successor or assign by reason merely of such
purchase.
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<PAGE> 17
15. Governing Law
This Agreement shall be governed by and construed in accordance with
the law of Switzerland.
16. Submission to Jurisdiction
(a) The Company irrevocably (i) agrees that any legal suit, action or
proceeding against it brought by any Manager or by any officer or
director of any Manager or by any person who controls, is
controlled by or is under common control with any Manager arising
out of or based upon this Agreement or the transactions
contemplated herein shall be brought in the commercial court of
the Canton of Zurich (Handelsgericht) in Zurich, Switzerland,
with the right of appeal to the Swiss Federal Supreme Court
(Schweizerisches Bundesgericht) (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now
or hereafter have to the laying of venue of any such proceeding
and (iii) submits to the exclusive jurisdiction of such court in
any such suit, action or proceeding.
(b) Each of the Managers irrevocably (i) agrees that any legal suit,
action or proceeding against it brought by the Company or by any
officer or director of the Company or by any person who controls,
is controlled by or is under common control with the Company
arising out of or based upon this Agreement or the transactions
contemplated herein shall be brought in the commercial court of
the Canton of Zurich (Handelsgericht) in Zurich, Switzerland,
with the right of appeal to the Swiss Federal Supreme Court
(Schweizerisches Bundesgericht) (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now
or hereafter have to the laying of venue of any such proceeding
and (iii) submits to the exclusive jurisdiction of such court in
any such suit, action or proceeding.
17. Counterparts
This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and
the same instrument.
18. Severability
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
unenforceable or invalid under applicable law, such provision shall be
ineffective only to the extent of such unenforceability or invalidity
and be replaced by such valid and enforceable provision which the
parties bona fide consider to match as closely as possible the invalid
or unenforceable provision, attaining the same or a similar economic
effect. The remaining
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<PAGE> 18
provisions of this Agreement shall under all circumstances continue to
be binding and in full force and effect.
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<PAGE> 19
If the foregoing is in accordance with your understanding, please
sign and return to us six counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Managers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Managers and the
Company.
Very truly yours,
e-centives, Inc.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
Accepted as of the date hereof:
swissfirst Bank AG
By:
--------------------------
Name:
Title:
PICTET & CIE
By:
--------------------------
Duly Authorized Attorneys
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<PAGE> 20
SCHEDULE 1
<TABLE>
<CAPTION>
Number of
New Shares
to be purchased
----------------------------------------------------------------------------------
<S> <C> <C>
swissfirst Bank AG 3,200,000
----------------------------------------------------------------------------------
Pictet & Cie 500,000
----------------------------------------------------------------------------------
</TABLE>