EXHIBIT 1.1
Underwriting Agreement
February ___, 2000
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
X. X. Xxxxxxxx & Co.
First Union Securities, Inc.
SunTrust Equitable Securities Corporation
As Representatives of the several Underwriters
c/o FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Introductory. The InterCept Group, Inc., a Georgia corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule A (the "Underwriters") an aggregate of 2,650,000 shares (the "Company
----------
Shares") of its Common Stock, no par value per share (the "Common Shares" or the
"Common Stock"). In addition, Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxx and Vir A.
Nanda (collectively, the "Selling Shareholders"), acting severally and not
jointly, propose to sell to the Underwriters an aggregate of 350,000 Common
Shares (the "Selling Shareholder Shares"). The 2,650,000 Company Shares and the
350,000 Selling Shareholder Shares are collectively called the "Firm Shares."
In addition, the Company has granted to the Underwriters an option to purchase
up to an additional 450,000 shares of its Common Stock (the "Option Shares"), as
provided in Section 2. The Firm Shares and, if and to the extent such option is
exercised, the Option Shares are collectively called the "Shares." FleetBoston
Xxxxxxxxx Xxxxxxxx Inc., X.X. Xxxxxxxx & Co., First Union Securities, Inc. and
SunTrust Equitable Securities Corporation have agreed to act as representatives
of the several Underwriters (in such capacity, the "Representatives") in
connection with the offering and sale of the Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-94511), which contains a form of prospectus to be used in connection with
the public offering and sale of the Shares (the "Offering"). Such registration
statement, as amended, including the financial statements, exhibits and
schedules thereto, in the form in
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
which it was declared effective by the Commission under the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Securities Act"), including all documents incorporated or
deemed to be incorporated by reference therein and any information deemed to be
a part thereof at the time of effectiveness pursuant to Rule 430A or Rule 434
under the Securities Act or the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (collectively, the "Exchange
Act"), is called the "Registration Statement." Any registration statement filed
by the Company pursuant to Rule 462(b) under the Securities Act is called the
"Rule 462(b) Registration Statement," and, from and after the date and time of
filing of the Rule 462(b) Registration Statement, the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. Such
prospectus, in the form first used by the Underwriters to confirm sales of the
Shares, is called the "Prospectus." All references in this Agreement to the
Registration Statement, the Rule 462(b) Registration Statement, a preliminary
prospectus or the Prospectus, or any amendments or supplements to any of the
foregoing, shall include any copy thereof filed with the Commission pursuant to
its Electronic Data Gathering, Analysis and Retrieval System ("XXXXX"). All
references in this Agreement to financial statements and schedules and other
information that is "contained," "included" or "stated" in the Registration
Statement or the Prospectus (and all other references of like import) shall be
deemed to mean and include all such financial statements and schedules and other
information that is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be, and all references
in this Agreement to amendments or supplements to the Registration Statement or
the Prospectus shall be deemed to mean and include the filing of any document
under the Exchange Act which is or is deemed to be incorporated by reference in
the Registration Statement or the Prospectus, as the case may be. Any statements
made in the Registration Statement or the Prospectus will be deemed to be
modified or superseded for purposes of the Registration Statement or the
Prospectus to the extent that a statement contained in the Registration
Statement or the Prospectus or in any other subsequently filed document which is
also incorporated or deemed to be incorporated by reference in the Registration
Statement or the Prospectus, modifies or supersedes the statement. Any statement
so modified or superseded will not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or the
Prospectus.
The Company and each of the Selling Shareholders hereby confirm their
respective agreements with the Underwriters as follows:
Section 1. Representations and Warranties.
A. Representations and Warranties of the Company. The Company hereby
represents, warrants to and agrees with each Underwriter as follows:
2
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(a) Compliance with Registration Requirements. The Registration
Statement has been declared effective (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement)
by the Commission under the Securities Act. The Company has complied to the
Commission's satisfaction with all requests of the Commission for additional or
supplemental information. No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for such purpose have
been instituted or are pending or, to the knowledge of the Company are
contemplated or threatened by the Commission.
Each preliminary prospectus and the Prospectus, when filed, complied
in all material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was substantially identical to the copy thereof
delivered to the Underwriters for use in connection with the offer and sale of
the Shares. Each of the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendment thereto, at the time it became
------
effective (or becomes effective if not yet effective) and at all subsequent
times up to the closing of the purchase and sale of the Firm Shares (and, if
applicable, the purchase and sale of the Option Shares), complied and will
comply in all material respects with the Securities Act and did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus, as amended or supplemented, as of its date and at
all subsequent times up to the closing of the purchase and sale of the Firm
Shares (and, if applicable, the purchase and sale of the Option Shares), did not
and will not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The representations
and warranties set forth in the two immediately preceding sentences do not apply
to statements in or omissions from the Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use therein. There are
no contracts or other documents required by the Securities Act to be described
in the Prospectus or to be filed as exhibits to the Registration Statement that
have not been described or filed as required.
(b) Offering Materials Furnished to Underwriters. The Company has
delivered or will deliver to each Representative at least one complete conformed
copy of the Registration Statement and of each consent and certificate of
experts filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits) and preliminary prospectuses and the Prospectus, as
amended or supplemented, in such
3
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
quantities and at such places as the Representatives have reasonably requested
for each of the Underwriters.
(c) Distribution of Offering Material By the Company. The Company has
not distributed and will not distribute, prior to the later of the Second
Closing Date (as defined below) and the completion of the Underwriters'
distribution of the Shares, any offering material in connection with the
offering and sale of the Shares other than a preliminary prospectus, the
Prospectus or the Registration Statement, as supplemented or amended.
(d) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company, enforceable in accordance with its terms, except as rights to
indemnification hereunder may be limited by applicable law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws relating to or affecting
the rights and remedies of creditors or by general equitable principles.
(e) Authorization of the Shares To Be Sold by the Company. The Company
Shares have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement, will be validly issued, fully paid and nonassessable.
(f) Authorization of the Shares To Be Sold by the Selling Shareholders.
The Selling Shareholder Shares, when issued by the Company, were validly issued,
fully paid and nonassessable.
(g) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included in
the offering contemplated by this Agreement, except for such rights as have been
duly waived.
(h) No Material Adverse Change. Subsequent to the respective dates as
of which information is given in the Prospectus: (i) except as disclosed in or
contemplated by the Prospectus, there has been no material adverse change in, or
any development that could reasonably be expected to have a material adverse
effect on, the condition, financial or otherwise, or the earnings, business or
operations, whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries (as used herein, the term
"subsidiary" includes any corporation, joint venture, limited liability company
or partnership in which the Company or any wholly-owned subsidiary of the
Company has an ownership interest in excess of 50% and expressly excludes
Netzee, Inc. and its predecessors and specifically excludes Netzee, Inc.),
considered as one entity (any
4
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
such change or effect, where the context so requires, is called a "Material
Adverse Change" or a "Material Adverse Effect"); (ii) except as disclosed in or
contemplated by the Prospectus, the Company and its subsidiaries, considered as
one entity, have not incurred any material liability or obligation, indirect,
direct or contingent, not in the ordinary course of business nor entered into
any material transaction or agreement not in the ordinary course of business;
and (iii) except as disclosed in or contemplated by the Prospectus, and except
as is not material in amount, there has been no dividend or distribution of any
kind declared, paid or made by the Company or, except for dividends paid to the
Company or other subsidiaries, any of its subsidiaries on any class of capital
stock or repurchase or redemption by the Company or any of its subsidiaries of
any class of capital stock.
(i) Independent Accountants. Based on representations made to the
Company, Xxxxxx Xxxxxxxx LLP, Xxxxxxx, Guess, Fost & Xxxxxxxx, P.C. and BDO
Xxxxxxx, LLP, who have expressed their opinion with respect to the financial
statements (which term as used in this Agreement includes the related notes
thereto) and any supporting schedules filed with the Commission as a part of the
Registration Statement and included in the Prospectus, are independent public or
certified public accountants as required by the Securities Act and the Exchange
Act.
(j) Preparation of the Financial Statements. The consolidated financial
statements and related notes and schedules thereto filed with the Commission as
a part of the Registration Statement and included in the Prospectus present
fairly the consolidated financial position of the Company and its subsidiaries
as of and at the dates indicated and the results of their operations and cash
flows for the periods specified. Such financial statements and any supporting
schedules have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved, except
as may be expressly stated in the related notes thereto, and except, in the case
of interim unaudited financial statements, for normal year-end adjustments and
for the absence of footnote disclosure. No other financial statements or
supporting schedules are required to be included in the Registration Statement.
The historical financial data set forth in the Prospectus under the captions
"Summary--Summary Consolidated Financial Data," "Capitalization" and "Selected
Consolidated Financial Data" fairly present the information set forth therein on
a basis consistent with that of the audited consolidated financial statements
contained in the Registration Statement (with respect to audited periods) and on
a basis consistent with that of the most recent interim consolidated financial
statements filed with the Commission (with respect to unaudited periods).
(k) Company's Accounting System. The Company and each of its
subsidiaries maintain a system of accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific
5
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
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; (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences and (v) such controls would prevent or detect errors
or irregularities in amounts that would be material in relation to the Company's
financial statements.
(l) Subsidiaries of the Company. Except as disclosed in the Prospectus
[or as set forth on Schedule 1.K hereto], the Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
the subsidiaries listed in Exhibit 21 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998.
(m) Incorporation and Good Standing of the Company and its Subsidiaries.
Each of the Company and its subsidiaries (i) has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction in which it is organized with full corporate power and authority to
own its properties and conduct its business as described in the Prospectus, and
(ii) is duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such qualification,
except where the failure to be so qualified would not have a Material Adverse
Effect.
(n) Capitalization of the Subsidiaries. All of the outstanding shares of
capital stock of each subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable, and, except as otherwise disclosed
in or contemplated by the Prospectus (including the credit facilities described
therein), all outstanding shares of capital stock of the subsidiaries are owned
by the Company, either directly or through its wholly-owned subsidiaries, free
and clear of any security interests, claims, liens or encumbrances.
(o) No Prohibition on Subsidiaries from Paying Dividends or Making Other
Distributions. No subsidiary of the Company is currently prohibited from
paying any dividends to the Company, from making any other distribution on such
subsidiary's capital stock, from repaying to the Company any loans or advances
to such subsidiary from the Company or from transferring any of such
subsidiary's property or assets to the Company or any other subsidiary of the
Company, except as described in or contemplated by the Prospectus, restrictions
under securities laws, and such restrictions as would not have a Material
Adverse Effect.
6
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(p) Capitalization and Other Capital Stock Matters. The authorized,
issued and outstanding capital stock of the Company is as set forth in the
Prospectus under the caption "Capitalization" as of the date presented therein
(other than for subsequent issuances, if any, pursuant to employee benefit plans
descriptions of which are contained in the Prospectus, upon exercise of
outstanding options descriptions of which are contained in the Prospectus or
other issuances which are not material in amount). The Common Shares (including
the Shares) conform in all material respects to the description thereof
contained in the Prospectus. All of the issued and outstanding Common Shares
have been duly authorized and validly issued, are fully paid and nonassessable
and have been issued in compliance with federal and state securities laws. None
of the outstanding Common Shares were issued in violation of any preemptive
rights, rights of first refusal or other similar rights to subscribe for or
purchase securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its subsidiaries
other than those accurately described in the Prospectus. The description of the
Company's stock option, stock bonus and other stock plans or arrangements, and
the options or other rights granted thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown with respect
to such plans, arrangements, options and rights.
(q) Stock Exchange Listing. The Company's Common Stock is registered
pursuant to Section 12(g) of the Exchange Act, and the Shares are listed, or
have been approved for listing upon notice of issuance, on the Nasdaq National
Market, and the Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or delisting the Shares from the Nasdaq National Market, nor has the Company
received any notification that the Commission or the National Association of
Securities Dealers, LLC (the "NASD") is contemplating terminating such
registration or listing.
(r) No Consents, Approvals or Authorizations Required. No consent,
approval, authorization, filing with or order of any court or governmental
agency or regulatory body is required in connection with the transactions
contemplated herein, except such as have been obtained or made (including under
the Securities Act) and such as may be required (i) under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the Shares
by the Underwriters in the manner contemplated here and in the Prospectus, (ii)
by the NASD and (iii) by the federal and provincial laws of Canada and any other
foreign jurisdiction in which the Shares may be offered or sold.
(s) Non-Contravention of Existing Instruments Agreements. Neither the
issue and sale of the Shares, the consummation of any other of the transactions
herein
7
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
contemplated, nor the fulfillment of the terms hereof, will conflict with,
result in a breach or violation or imposition of any lien, charge or encumbrance
upon any property or asset of the Company or any of its subsidiaries pursuant to
(i) the charter or by-laws of the Company or any of its subsidiaries, (ii) the
terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, covenant or instrument to which
the Company or any of its subsidiaries is a party or bound or to which its or
their property is subject or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its subsidiaries
or any of its or their properties, except, in the case of clauses (ii) and (iii)
above, such violations, breaches or defaults as would not have a material and
adverse impact on the Company's ability to consummate the transactions
contemplated hereby and as would not have a Material Adverse Effect.
(t) No Defaults or Violations. Neither the Company nor any subsidiary
is in violation of or default under: (i) any provision of its charter or by-
laws, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, covenant or instrument to
which it is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such subsidiary or any of its
properties, as applicable; except in each case, for any such violation or
------ -- ---- ----
default which would not, singly or in the aggregate, result in a Material
Adverse Change, except as otherwise disclosed in or contemplated by the
Prospectus.
(u) No Actions, Suits or Proceedings. Except as otherwise disclosed in
the Prospectus, no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries or its or their property is pending or, to the
knowledge of the Company, threatened that, if determined adversely to the
Company and its subsidiaries, (i) could reasonably be expected to have a
material adverse effect on the Company's ability to perform its obligations
under this Agreement or to consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to result in a Material Adverse
Effect.
(v) All Necessary Permits, Etc. Except as would not have a Material
Adverse Effect, the Company and each subsidiary possess such valid and current
certificates, authorizations or permits issued by the appropriate state, federal
or foreign regulatory agencies or bodies necessary to conduct their respective
businesses, and neither the Company nor any subsidiary has received any notice
of proceedings relating to the revocation or modification of, or non-compliance
with, any such certificate, authorization
8
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
or permit which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could result in a Material Adverse Change.
(w) Title to Properties. Except as disclosed in or contemplated by the
Prospectus, the Company and each of its subsidiaries has good and marketable
title to all the properties and assets reflected as owned in the financial
statements referred to in Section 1(A) (j) above and which are material to the
respective businesses (or elsewhere in the Prospectus), in each case free and
clear of any security interests, mortgages, liens, encumbrances, equities,
claims and other defects, except such as do not materially and adversely affect
the value of such property and do not materially interfere with the use made or
proposed to be made of such property by the Company or such subsidiary. The
real property, improvements, equipment and personal property held under lease by
the Company or any subsidiary are held under valid and binding leases, with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such real property, improvements, equipment or
personal property by the Company or such subsidiary.
(x) Tax Law Compliance. The Company and its consolidated subsidiaries
have filed all necessary and material federal, state and foreign income tax
returns and all material franchise tax returns applicable to its business, or
proper extensions therefor, and, if due and payable, have paid all taxes
required to be paid by any of them and any related or similar assessment, fine
or penalty levied against any of them, except such as may be contested in good
faith. The Company has made adequate charges, accruals and reserves in the
applicable financial statements referred to in Section 1(A)(j) above in respect
of all federal, state and foreign income and franchise taxes for all periods
reflected in such financial statements as to which the tax liability of the
Company or any of its consolidated subsidiaries has not been finally determined.
The Company has no knowledge of any tax deficiency that has been or might be
asserted or threatened against the Company that could result in a Material
Adverse Change.
(y) Intellectual Property Rights. Except as disclosed in or contemplated
by the Prospectus: each of the Company and its subsidiaries owns or possesses
adequate rights to use all patents, patent rights or licenses, inventions,
collaborative research agreements, trade secrets, know-how, trademarks, service
marks, trade names and copyrights that are necessary to conduct its businesses
as described in the Registration Statement and Prospectus; the expiration of any
patents, patent rights, trade secrets, trademarks, service marks, trade names or
copyrights would not result in a Material Adverse Change; the Company has not
received any notice of, and has no knowledge of, any infringement of or conflict
with asserted rights of the Company by others with respect to any patent, patent
rights, inventions, trade secrets, know-how, trademarks, service marks, trade
names or copyrights; and the Company has not received any notice of, and has no
knowledge of,
9
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
any infringement of or conflict with asserted rights of others with respect to
any patent, patent rights, inventions, trade secrets, know-how, trademarks,
service marks, trade names or copyrights which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect. There is no claim being made against the Company regarding
patents, patent rights or licenses, inventions, collaborative research, trade
secrets, know-how, trademarks, service marks, trade names or copyrights that is
not otherwise disclosed in or contemplated by the Prospectus. The Company and
its subsidiaries do not in the conduct of their business as now or proposed to
be conducted as described in the Prospectus infringe or conflict with any right
or patent of any third party, or any discovery, invention, product or process
which is the subject of a patent application filed by any third party, known to
the Company, or any of its subsidiaries which such infringement or conflict is
reasonably likely to result in a Material Adverse Effect that is not otherwise
disclosed in the Prospectus.
(z) Year 2000 Preparedness. Except as disclosed in the Prospectus,
there are no issues related to the Company's or any of its subsidiaries'
preparedness for the Year 2000, February 29, 2000 and other related date data
interfaces that (i) are of a character required to be described or referred to
in the Registration Statement or Prospectus or any Incorporated Document by the
Securities Act or by the Exchange Act which have not been accurately described
in the Registration Statement or Prospectus or any Incorporated Document or (ii)
might reasonably be expected to result in any Material Adverse Change.
(aa) No Transfer Taxes or Other Fees. There are no transfer taxes or
other similar fees or charges under federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance and sale by the Company
of the Company Shares, except those that have been or will be paid by the
Company.
(bb) Company Not an "Investment Company." The Company (i) is not, (ii)
after receipt of payment for the Company Shares will not be, and (iii) does not
intend to conduct its business in a manner that would cause it to become, an
"investment company" or an entity "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(cc) Insurance. The Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in such
amounts and with such deductibles and covering such risks as are reasonably
deemed adequate and customary for their businesses, including, but not limited
to, policies covering material real and personal property owned or leased by the
Company and its subsidiaries against theft, damage, destruction, acts of
vandalism and earthquakes, general liability and directors and officers
liability. The Company has no reason to believe that it or any subsidiary will
not be able
10
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(i) to renew its existing insurance coverage as and when such policies expire or
(ii) to obtain comparable coverage from similar institutions as may be necessary
or appropriate to conduct its business as now conducted and at a cost that would
not result in a Material Adverse Change.
(dd) Labor Matters. To the Company's knowledge, no labor disturbance by
the employees of the Company or any of its subsidiaries which could reasonably
be expected to have a Material Adverse Effect exists or is imminent; and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers or original equipment manufacturers
that might reasonably be expected to result in a Material Adverse Change.
(ee) No Price Stabilization or Manipulation. The Company has not taken
and will not take, directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization or manipulation of
the price of the Common Stock to facilitate the sale or resale of the Shares.
(ff) Lock-Up Agreements. Each executive officer and director of the
Company, each Selling Shareholder and each beneficial owner of one or more
percent of the outstanding Common Stock of the Company has signed an agreement
substantially in the form attached hereto as Exhibit A (the "Lock-up
---------
Agreements"). The Company has provided to counsel for the Underwriters a
complete and accurate list of all securityholders of the Company and the number
and type of securities held by each securityholder. The Company has provided to
counsel for the Underwriters true, accurate and complete copies of all of the
Lock-up Agreements. The Company hereby agrees that it will not release any of
its executive officers, directors or other shareholders from any Lock-up
Agreements currently existing or hereafter effected without the prior written
consent of FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
(hh) No Unlawful Contributions or Other Payments. Neither the Company
nor any of its subsidiaries nor, to the Company's knowledge, any employee or
agent of the Company or any subsidiary, has made any contribution or other
payment during the past three (3) years to any official of, or candidate for,
any federal, state or foreign office in violation of any law or of the character
required by any federal or state securities law to be disclosed in the
Prospectus.
(ii) Environmental Laws. The Company is in compliance with all rules,
laws and regulations relating to the use, treatment, storage and disposal of
toxic substances and protection of health or the environment ("Environmental
Laws"), which are applicable to its business, except where the failure to comply
would not result in a Material Adverse Change. The Company has received no
notice from any governmental authority or third
11
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
party of an asserted claim under Environmental Laws, which claim is required to
be disclosed in the Registration Statement and the Prospectus. The Company will
not be required to make future material capital expenditures to comply with
Environmental Laws. No property that is owned, leased or occupied by the Company
has been designated as a Superfund site pursuant to the Comprehensive Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. (S) 9601, et
--
seq.), or otherwise designated as a contaminated site under applicable state or
---
local law.
(jj) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as defined below) are
in compliance in all material respects with ERISA. "ERISA Affiliate" means,
with respect to the Company or a subsidiary, any member of any group of
organizations described in Sections 414(b),(c),(m) or (o) of the Internal
Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such subsidiary
is a member. No "reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates. No "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates, if such "employee
benefit plan" were terminated, would have any "amount of unfounded benefit
liabilities" (as defined under ERISA). Neither the Company, its subsidiaries
nor any of their ERISA Affiliates has incurred or reasonably expects to incur
any liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "employee benefit plan" or (ii) Sections 412, 4971, 4975 or
4980B of the Code. Each "employee benefit plan" established or maintained by
the Company, its subsidiaries or any of their ERISA Affiliates that is intended
to be qualified under Section 401(a) of the Code is so qualified, and nothing
has occurred, whether by action or failure to act, that would cause the loss of
such qualification.
(kk) Exchange Act Compliance. The documents incorporated or deemed to be
incorporated by reference in the Prospectus (each an "Incorporated Document"),
at the time they were or hereafter are filed with the Commission (if filed prior
to the termination of the Offering), complied and will comply in all material
respects with the requirements of the Exchange Act, and, when read together with
the other information in the Prospectus, at the time the Registration Statement
and any amendments thereto become effective and at the First Closing Date and
the Second Closing Date, as the case may be, will 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.
12
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(ll) Exchange Act Reports Filed. The Company has filed all reports
required to be filed pursuant to the Securities Act and the Exchange Act.
(mm) Conditions for Use of Form S-3. The Company has satisfied the
conditions for the use of Form S-3, as set forth in the general instructions
thereto, with respect to the Registration Statement.
(nn) Immigration. The Company has not violated any applicable laws
relating to immigration and has employed only individuals authorized to work in
the United States and has never been the subject of any inspection or
investigation relating to its compliance with or violation of the Immigration
Reform and Control Act of 1986 and all Regulations promulgated thereunder,
except where any such violation or investigation would not have (if the outcome
was adverse) a Material Adverse Effect.
Any certificate signed by an executive officer of the Company and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter as
to the matters set forth therein.
B. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, severally and not jointly, represents and warrants to and
agrees with each Underwriter and the Company as follows:
(a) The Underwriting Agreement. This Agreement has been duly
authorized, executed and delivered by or on behalf of such Selling Shareholder
and is a valid and binding agreement of such Selling Shareholder, enforceable in
accordance with its terms, except as rights to indemnification hereunder may be
limited by applicable law and except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws relating to or affecting the rights and remedies of creditors
or by general equitable principles.
(b) The Custody Agreement and Power of Attorney. Each of the (i)
Custody Agreement signed by such Selling Shareholder and SunTrust Bank, Atlanta,
as custodian (the "Custodian"), relating to the deposit of the Selling
Shareholder Shares to be sold by such Selling Shareholder (the "Custody
Agreement") and (ii) Power of Attorney of such Selling Shareholder appointing
certain individuals named therein as such Selling Shareholder's attorneys-in-
fact (each, an "Attorney-in-Fact") to the extent set forth therein relating to
the transactions contemplated hereby and by the Prospectus (the "Power of
Attorney"), has been duly authorized, executed and delivered by such Selling
Shareholder and is a valid and binding agreement of such Selling Shareholder,
enforceable
13
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
in accordance with its terms, except as rights to indemnification thereunder may
be limited by applicable law and except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles. Each Selling
Shareholder agrees that the Selling Shareholder Shares to be sold by such
Selling Shareholder on deposit with the Custodian are subject to the interests
of the Underwriters, that the arrangements made for such custody are to that
extent irrevocable, and that the obligations of such Selling Shareholder
hereunder shall not be terminated, except as provided in this Agreement or in
the Custody Agreement, by any act of the Selling Shareholder, by operation of
law, by death or incapacity of such Selling Shareholder or by the occurrence of
any other event. To the maximum extent permitted under applicable law, if such
Selling Shareholder should die or become incapacitated, or if any other event
should occur, before the delivery of the Selling Shareholder Shares to be sold
by such Selling Shareholder hereunder, the documents evidencing the Selling
Shareholder Shares to be sold by such Selling Shareholder then on deposit with
the Custodian shall be delivered by the Custodian in accordance with the terms
and conditions of this Agreement as if such death, incapacity or other event had
not occurred, regardless of whether or not the Custodian shall have received
notice thereof.
(c) Title to Shares to be Sold. Such Selling Shareholder is the lawful
owner of the Selling Shareholder Shares to be sold by such Selling Shareholder
hereunder and set forth opposite each Selling Shareholder's name on Schedule B.
----------
Such Selling Shareholder has, and immediately prior to the delivery of the
Selling Shareholder Shares to be sold by such Selling Shareholder on the First
Closing Date (as defined below) will have, good and valid title to all of the
Selling Shareholders Shares, and upon sale and delivery of, and payment for,
such Selling Shareholder Shares, as provided herein, convey good and marketable
title to such Selling Shareholder Shares will pass to the Underwriters, free and
clear of all liens, encumbrances, equities and claims whatsoever.
(e) No Further Consents, Authorization or Approvals. No consent,
approval, authorization or order of any court or governmental agency or body is
required for (i) the execution and delivery by such Selling Shareholder of this
Agreement or such Selling Shareholder's Custody Agreement and Power of Attorney
or (ii) the consummation by such Selling Shareholder of the transactions
contemplated herein, except such as may have been obtained under the Securities
Act and such as may be required under the federal and provincial securities laws
of Canada or any other jurisdiction where the Shares may be offered or sold, or
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters and such other approvals as have
been obtained.
14
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(f) Non-Contravention. Neither the sale of the Selling Shareholder
Shares being sold by such Selling Shareholder nor the consummation of any other
of the transactions herein contemplated by such Selling Shareholder or the
fulfillment of the terms hereof by such Selling Shareholder will conflict with,
result in a breach or violation of, or constitute a default under the terms of
any indenture or other agreement or instrument to which such Selling Shareholder
is party or bound, any law, judgment, order or decree applicable to such Selling
Shareholder or of any court or regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Shareholder, except where such conflict, breach, default or violation would not
prohibit or challenge the validity of the transactions herein contemplated to be
consummated by such Selling Shareholder.
(g) No Registration or Other Similar Rights. Such Selling Shareholder
does not have or hereby waives in connection with the Offering contemplated by
this Agreement, any registration or other similar rights to have any equity or
debt securities registered for sale by the Company under the Registration
Statement or included in the offering contemplated by this Agreement./1/
(h) No Preemptive, Co-sale or other Rights. Such Selling Shareholder
does not have, or hereby waives in connection with the Offering contemplated by
this Agreement, any preemptive right, co-sale right or right of first refusal or
other similar right of such Selling Shareholder to purchase any of the Shares
that are to be sold by the Company or any of the other Selling Shareholders to
the Underwriters pursuant to this Agreement; and such Selling Shareholder does
not own any warrants, options or similar rights to acquire, and does not have
any right or arrangement to acquire, any capital stock, right, warrants, options
or other securities from the Company, other than those described in the
Registration Statement and the Prospectus.
(i) Disclosure Made by Such Selling Shareholder in the Prospectus. All
information furnished by or on behalf of such Selling Shareholder in writing
expressly for use in the Registration Statement and Prospectus is, and on the
First Closing Date and the Second Closing Date (as defined below) will be, true,
correct, and complete in all material respects, and does not, and on the First
Closing Date and the Second Closing Date will not, contain any untrue statement
of a material fact or omit to state any material fact necessary to make such
information (in light of the circumstances in which such statement is made, in
the case of the Prospectus) not misleading. Such Selling Shareholder confirms
as accurate the number of Common Shares beneficially owned by such Selling
Shareholder set forth opposite such Selling Shareholder's name in the Prospectus
under the caption "Selling Shareholders" (both prior to and after giving effect
to the sale of the Shares).
--------------------
/1/ If there are Regulation Rights, we need to see the agreements.
15
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(j) No Price Stabilization or Manipulation. Such Selling Shareholder
has not taken and will not take, directly or indirectly, any action designed to
or that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or resale
of the Shares.
(k) Distribution of Offering Materials by the Selling Shareholders. The
Selling Shareholders have not distributed and will not distribute, prior to the
later of the Second Closing Date (as defined below) and the completion of the
Underwriters' distribution of the Shares, any offering material in connection
with the offering and sale of the Shares by such Selling Shareholder other than
a preliminary prospectus, the Prospectus or the Registration Statement.
(l) Confirmation of Company Representations and Warranties. Such
Selling Shareholder has no knowledge that the representations and warranties of
the Company contained in Section 1(A) hereof are not true and correct in all
material respects, and is not prompted to sell the Selling Shareholder Shares to
be sold by such Selling Shareholder by any information concerning the Company
which is not set forth in the Registration Statement and the Prospectus.
Any certificate signed by any Selling Shareholder or by such Selling
Shareholder's Attorney-in-Fact on behalf of such Selling Shareholder and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed to be a representation and warranty by such Selling Shareholder to each
Underwriter as to the matters covered thereby.
Section 2. Purchase, Sale and Delivery of the Shares.
(a) The Firm Shares. Upon the basis of the representations, warranties and
agreements herein contained and upon the terms but subject to the conditions
herein set forth, (i) the Company agrees, severally and not jointly with any
Selling Shareholder, to issue and sell to the several Underwriters an aggregate
of 2,650,000 Firm Shares and (ii) the Selling Shareholders, severally and not
jointly with the Company or any other Selling Shareholder, agree to sell to the
several Underwriters an aggregate of 350,000 Firm Shares, each Selling
Shareholder selling the number of Firm Shares set forth opposite such Selling
Shareholder's name on Schedule B. On the basis of the representations,
----------
warranties and agreements herein contained, and upon the terms but subject to
the conditions herein set forth, the Underwriters agree, severally and not
jointly, to purchase from the Company and the Selling Shareholders the
respective number of Firm Shares set forth opposite their names on Schedule A.
----------
The purchase price per Firm Share to be paid
16
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
by the several Underwriters to the Company and the Selling Shareholders shall be
$___ per share.
(b) The First Closing Date. Delivery of the Firm Shares to be purchased by
the Underwriters and payment therefor shall be made by the Company and the
Selling Shareholders and the Representatives at 6:00 a.m. San Francisco time, at
the offices of Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P. in Atlanta, Georgia
(or at such other place as may be agreed upon among the Representatives and the
Company), (i) if this Agreement is executed and delivered before 1:30 p.m., San
Francisco time, on the third (3rd) full business day following the first day
that Firm Shares are traded, (ii) after 1:30 p.m., San Francisco time, on the
fourth (4th) full business day following the day that this Agreement is executed
and delivered or (iii) at such other time and date not later that seven (7) full
business days following the first day that Firm Shares are traded as the
Representatives and the Company may determine (or at such time and date to which
payment and delivery shall have been postponed pursuant to Section 8 hereof),
such time and date of payment and delivery being herein called the "Closing
Date;" provided, however, that if the Company has not made available to the
Representatives copies of the Prospectus within the time provided in Section
2(g) hereof, the Representatives may, in their sole discretion exercised in
compliance with the Securities Act, postpone the Closing Date until no later
than two (2) full business days following delivery of copies of the Prospectus
to the Representatives.
(c) The Option Shares; the Second Closing Date. In addition, on the basis
of the representations, warranties and agreements herein contained, and upon the
terms but subject to the conditions herein set forth, the Company hereby grants
an option to the several Underwriters, acting severally and not jointly, to
purchase up to an aggregate of 450,000 Option Shares from the Company at the
purchase price per share to be paid by the Underwriters for the Firm Shares.
The option granted hereunder is for use by the Underwriters solely in covering
any over-allotments in connection with the sale and distribution of the Firm
Shares. The option granted hereunder may be exercised in whole or in part at
any time or from time to time upon notice by the Representatives to the Company,
which notice may be given at any time within 30 days from the date of this
Agreement. The time and date of delivery of the Option Shares, if subsequent to
the First Closing Date, is called the "Second Closing Date," shall be determined
by the Representatives and shall not be earlier than three nor later than five
full business days after delivery of such notice of exercise. If any Option
Shares are to be purchased, upon delivery of the exercise notice(s) with respect
thereto, each Underwriter agrees, severally and not jointly, to purchase the
number of Option Shares (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) that bears the same proportion to
the total number of Option Shares to be purchased as the number of Firm Shares
set forth on Schedule A opposite the name of such Underwriter bears to the total
----------
17
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
number of Firm Shares. The Representatives may cancel the option (except with
respect to Option Shares for which a notice of exercise has been delivered to
the Company) at any time prior to its expiration by giving written notice of
such cancellation to the Company.
(d) Public Offering of the Shares. The Underwriters intend to offer for
sale to the public, as described in the Prospectus, their respective portions of
the Shares as soon after this Agreement has been executed and the Registration
Statement has been declared effective as the Representatives, in their sole
judgment, have determined is advisable and practicable.
(e) Payment for the Shares.
(i) Payment for the Shares to be sold by the Company shall be made at the
First Closing Date (and, if applicable, at the Second Closing Date) by wire
transfer of immediately available funds to the order of the Company.
Payment for the Shares to be sold by the Selling Shareholders shall be made
at the First Closing Date by wire transfer of immediately available funds
to the order of the Custodian.
(ii) The Representatives have been authorized, for their own accounts and
the accounts of the several Underwriters, to accept delivery of and receipt
for, and make payment of the purchase price for, the Firm Shares and any
Option Shares the Underwriters have agreed to purchase. FleetBoston
Xxxxxxxxx Xxxxxxxx Inc., individually and not as a Representative of the
Underwriters, may (but shall not be obligated to) make payment for any
Shares to be purchased by any Underwriter, whose funds shall not have been
received by the Representatives by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but
any such payment shall not relieve such Underwriter from any of its
obligations under this Agreement.
(iii) Each Selling Shareholder hereby agrees that (A) it will pay all
income tax, capital gains tax, stock transfer taxes, stamp duties and other
similar taxes, if any, payable upon the sale or delivery of the Selling
Shareholder Shares to be sold by such Selling Shareholder to the several
Underwriters, or otherwise in connection with the performance of such
Selling Shareholder's obligations hereunder and (B) the Custodian is
authorized to deduct for such payment any such amounts from the proceeds to
such Selling Shareholder hereunder and to pay such amounts for the account
of such Selling Shareholder in accordance with the Custody Agreement.
(f) Delivery of the Shares. The Company and the Selling Shareholders
shall deliver, or cause to be delivered, at the First Closing Date, a credit
representing the Firm
18
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
Shares to an account or accounts at The Depository Trust Company as designated
by the Representatives for the accounts of the Representatives and the several
Underwriters at least two (2) business days in advance of such First Closing
Date, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The Company shall
also deliver, or cause to be delivered, at the First Closing Date or the Second
Closing Date, as the case may be, a credit representing the Option Shares to an
account or accounts at The Depository Trust Company as designated by the
Representatives for the accounts of the Representatives and the several
Underwriters at least two (2) business days in advance of such First Closing
Date or Second Closing Date, as applicable, against the irrevocable release of a
wire transfer of immediately available funds for the amount of the purchase
price therefor. Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the
Underwriters, the Company and the Selling Shareholders.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00 noon
on the second business day following the date the Firm Shares are released by
the Underwriters for sale to the public, the Company shall deliver, or cause to
be delivered, copies of the Prospectus in such quantities (not to exceed the
number of Prospectus copies requested by the Underwriters to be printed) and at
such places as the Representatives shall request.
Section 3. Covenants of the Company and the Selling Shareholders.
A. Covenants of the Company. The Company further covenants and agrees
with each Underwriter as follows:
(a) Registration Statement Matters. The Company will (i) use its best
efforts to cause the Registration Statement (if not effective at the time this
Agreement is executed and delivered) to become effective as promptly as possible
or, if the procedure in Rule 430A of the Securities Act is followed, to prepare
and timely file with the Commission under Rule 424(b) under the Securities Act a
Prospectus in substantially the same form as approved by the Representatives,
containing information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rule 430A of the Securities Act and (ii)
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 with the Securities Act. If
the Company elects to rely on Rule 462(b) under the Securities Act, the Company
shall promptly file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) under
19
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
the Securities Act, shall promptly notify the Representatives of the filing of
such Rule 462(b) Registration Statement and its effectiveness and shall pay the
applicable fees in accordance with Rule 111 under the Securities Act.
(b) Securities Act Compliance. The Company will advise the
Representatives promptly after it receives notice (i) when the Registration
Statement or any post-effective amendment thereto shall have become effective,
(ii) of receipt of any comments from the Commission, (iii) of any request of the
Commission for amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information and (iv) 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,
if issued, to obtain as soon as possible the withdrawal thereof.
(c) Blue Sky Compliance. The Company will cooperate with the
Representatives and counsel for the Underwriters in their best efforts to
qualify the Shares for sale under the securities laws of such jurisdictions
(both national and Canadian) 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 or register as a foreign
corporation or to execute or 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. In each U.S. and Canadian jurisdiction in which the Shares shall have
been registered or qualified as provided above, 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
(not to exceed six months).
(d) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. The Company will comply with the Securities Act and the Exchange Act
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 federal or state securities laws to be delivered by an
Underwriter or dealer in connection with sales of the Shares contemplated by
this Agreement any event shall occur as a result of which, in the judgment of
the Company or its counsel or in the reasonable opinion of the Representatives
or counsel for 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 required by the Securities
Act to be delivered to a purchaser of the Shares, not misleading, or, if it is
necessary at any time to amend or supplement the Prospectus to comply with
federal or state securities laws in
20
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
connection with sales of the Shares contemplated by this Agreement, the Company
promptly will prepare and file with the Commission, and furnish at its own
expense to the Underwriters and to dealers, an appropriate amendment to the
Registration Statement or supplement to the Prospectus so that the Prospectus,
as so amended or supplemented, will not.
(e) Copies of any Amendments and Supplements to the Prospectus. The
Company agrees to furnish the Representatives, without charge, during the period
beginning on the date hereof and ending on the later of the First Closing Date
or such date as, in the written opinion of counsel for the Underwriters, the
Prospectus is no longer required by federal or state securities laws to be
delivered in connection with sales of the Shares by an Underwriter or dealer
(the "Prospectus Delivery Period"), as many copies of the Prospectus and any
amendments and supplements thereto as the Representatives may request.
(f) Insurance. The Company shall obtain directors and officers liability
insurance in the minimum amount of $10 million, which shall apply to the
offering contemplated hereby.
(g) Notice of Subsequent Events. If at any time during the ninety (90)
day period after the Registration Statement becomes effective, any rumor,
publication or event relating to or affecting the Company shall occur as a
result of which in the Representatives' opinion the market price of the Company
Shares has been or is likely to be materially affected (regardless of whether
such rumor, publication or event necessitates a supplement to or amendment of
the Prospectus), the Company will, after written notice from the Representatives
advising the Company to the effect set forth above, forthwith prepare, consult
with the Representatives concerning the substance of and disseminate a press
release or other public statement, reasonably satisfactory to the
Representatives, responding to or commenting on such rumor, publication or
event.
(h) Use of Proceeds. The Company shall apply the net proceeds from the
sale of the Shares sold by it in the manner described under the caption "Use of
Proceeds" in the Prospectus. The Company will not invest or otherwise use the
proceeds from the sale of the Shares sold by it in such a manner as would
require the Company to register as an investment company under the Investment
Company Act.
(i) Transfer Agent. The Company shall continue to maintain, at its
expense, a registrar and transfer agent for the Shares.
(j) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Representatives an
earnings statement
21
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(which need not be audited) covering the twelve-month period ending March 31,
2001 that satisfies the provisions of Section 11(a) of the Securities Act.
(k) Periodic Reporting Obligations. During the Prospectus Delivery
Period the Company shall file, on a timely basis, with the Commission and the
Nasdaq National Market all reports and documents required to be filed under the
Exchange Act.
(l) Agreement Not to Offer or Sell Additional Securities. The Company
will not, without the prior written consent of FleetBoston Xxxxxxxxx Xxxxxxxx
Inc., for a period of 90 days following the date that the Registration Statement
is declared effective (the "Lock-Up Period") offer, sell, contract to sell, or
otherwise dispose of or enter into any transaction that is designed to, or could
be expected to, result in the disposition during such 90-day period, (whether by
actual disposition or effective economic disposition due to cash settlement or
otherwise by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, or announce the offering, of any other Common Shares or any
securities convertible into, or exchangeable for, Common Shares; provided,
--------
however, that the Company may (i) issue and sell the Shares pursuant to this
-------
Agreement, (ii) issue and sell Common Shares or other securities pursuant to any
director or employee stock option plan, stock ownership plan or dividend
reinvestment plan of the Company in effect at the date of the Prospectus or
pursuant to options, warrants or other agreements entered into after the date of
the Prospectus (so long as no Common Shares issued to executive officers,
directors or holders of more than 1% of the total number of outstanding Common
Shares pursuant to such options, warrants or other agreements may be transferred
in violation of the lock-up agreements to which such person(s) are a party), and
the Company shall enter stop transfer instructions with its transfer agent and
registrar against the transfer of any such Common Shares and (iii) the Company
may issue Common Shares or other securities convertible into, or exercisable or
exchangeable for, Common Shares in an amount up to five percent of the issued
and outstanding share capital of the Company as consideration for the
acquisition by the Company of an entity or all or some of the assets of another
entity; provided, however, that (A) any recipient of Common Shares issued
pursuant to subsection (ii) who as a result of such issuance becomes a
beneficial owner of one percent or more of the outstanding share capital of the
Company and (B) all recipients of Common Shares issued pursuant to subsection
(iii) execute and deliver to FleetBoston Xxxxxxxxx Xxxxxxxx Inc. a Lock-Up
Agreement substantially in the form attached hereto as Exhibit A, which term
---------
shall be for the remainder of the Lock-Up Period.
(m) Future Reports to the Representatives. If the closing of the
purchase and sale of the Firm Shares occurs, during the period of three years
hereafter, the Company will furnish to the Representatives (i) as soon as
practicable after the end of each fiscal year, copies of the Annual Report of
the Company containing the balance sheet of the
22
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
Company as of the close of such fiscal year and statements of income,
shareholders' equity and cash flows for the year then ended and the opinion
thereon of the Company's independent public or certified public accountants;
(ii) as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by the Company with the Commission, the
NASD or any securities exchange; and (iii) as soon as available, copies of any
report or communication of the Company mailed generally to holders of its
capital stock; provided, however, that the Company shall be deemed to have
-------- -------
satisfied its obligations hereunder if it files the document via XXXXX and such
document is available for public inspection via XXXXX.
(n) Exchange Act Compliance. During the Prospectus Delivery Period, the
Company will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within
the time periods required by the Exchange Act (including as allowed to be
extended pursuant to Form 12b-25 or otherwise under the Exchange Act).
B. Covenants of the Selling Shareholders. Each Selling Shareholder,
severally and not jointly, further covenants and agrees with each Underwriter:
(a) Agreement Not to Offer or Sell Additional Securities. Such Selling
Shareholder will abide by the terms and conditions of the lock-up agreement
substantially in the form of Exhibit A hereto (with such changes and
---------
modifications as agreed to by the parties thereto) during the Lock-Up Period.
(b) Delivery of Form W-9. To deliver to the Custodian prior to the
First Closing Date a properly completed and executed United States Treasury Form
W-9 as required by the Custody Agreement.
(c) Notification of Untrue Statements, etc. If, at any time prior to the
date on which the distribution of the Shares as contemplated herein and in the
Prospectus has been completed, such Selling Shareholder has knowledge of the
occurrence of any event as a result of which the Prospectus or the Registration
Statement, in each case as then amended or supplemented, would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, such Selling Shareholder will promptly notify the Company
and the Representatives.
23
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
Section 4. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Shares as
provided herein on the First Closing Date and, with respect to the Option
Shares, the Second Closing Date, shall be subject to the accuracy of the
representations and warranties on the part of the Company set forth in Section
1(A) hereof and the Selling Shareholders set forth in Section 1(B) hereof as of
the date hereof and as of the First Closing Date as though then made and, with
respect to the Option Shares, as of the Second Closing Date as though then made,
to the timely performance by the Company and the Selling Shareholders in all
material respects of their respective covenants and other obligations hereunder,
and to each of the following additional conditions:
(a) Compliance with Registration Requirements; No Stop Order; No Objection
from the NASD. The Registration Statement shall have become effective; and no
stop order suspending the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the knowledge of
the Company, any Selling Shareholder or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus) shall have been
complied with to the reasonable satisfaction of Underwriters' counsel; and the
NASD shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements.
(b) Corporate Proceedings. All corporate proceedings of the Company and
other legal matters material to the Company's and the Selling Shareholders'
ability to perform its and their obligations in connection with this Agreement,
the form of Registration Statement and the Prospectus, and the registration,
authorization, issuance, sale and delivery of the Shares, shall have been
reasonably satisfactory to Underwriters' counsel, and such counsel shall have
been furnished with such papers and information as they may reasonably have
requested to enable them to pass upon the matters referred to in this Section.
(c) No Material Adverse Change. Subsequent to the execution and delivery
of this Agreement and prior to the First Closing Date, or the Second Closing
Date, as the case may be, there shall not have been any Material Adverse Change
from that set forth in the Registration Statement or Prospectus, which, in the
Representatives' sole judgment, is material and adverse and that makes it, in
the Representatives' sole judgment, impracticable or inadvisable to proceed with
the public offering of the Shares as contemplated by the Prospectus.
24
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(d) Opinion of Counsel for the Company.
(i) The Representatives shall have received on the First Closing Date or
the Second Closing Date, as the case may be, an opinion of Xxxxxx Xxxxxxx
Xxxxx & Scarborough, L.L.P., counsel for the Company, substantially in the
form of Exhibit B attached hereto, dated the First Closing Date or the
---------
Second Closing Date, as the case may be, addressed to the Underwriters and
with reproduced copies or signed counterparts thereof for each of the
Underwriters.
(ii) Counsel rendering the opinion contained in Exhibit B may rely as to
---------
questions of law not involving the laws of the United States or the State
of Georgia upon opinions of local counsel, and as to questions of fact upon
representations or certificates of officers of the Company, the Selling
Shareholders and of government officials, in which case their opinion is to
state that they are so relying and that they have no actual knowledge of
any material misstatement or inaccuracy in any such opinion, representation
or certificate. Copies of any opinion, representation or certificate so
relied upon shall be delivered to the Representatives and to Underwriters'
counsel.
(e) Opinion of Special Regulatory Counsel for the Company. The
Representatives shall have received on the First Closing Date or the Second
Closing Date, as the case may be, one or more opinions of special regulatory
counsel for the Company, substantially in the form of Exhibit C attached hereto,
---------
dated the First Closing Date or the Second Closing Date, as the case may be,
addressed to the Underwriters and with reproduced copies or signed counterparts
thereof for each of the Underwriters.
(f) Opinions of Counsel for the Underwriters. The Representatives
shall have received on the First Closing Date or the Second Closing Date, as the
case may be, an opinion of Xxxxxx & Bird LLP, counsel to the Underwriters,
substantially in the form of Exhibit D attached hereto, dated the First Closing
---------
Date or the Second Closing Date, as the case may be, addressed to the
Underwriters and with reproduced copies or signed counterparts thereof for each
of the Underwriters. The Company shall have furnished to such counsel such
documents as they may have reasonably requested for the purpose of enabling them
to pass upon such matters.
(g) Accountants' Comfort Letter. The Representatives shall have received
on the First Closing Date and on the Second Closing Date, as the case may be, a
letter in form and substance satisfactory to the Representatives and containing
the information set forth in Exhibit E attached hereto from Xxxxxx Xxxxxxxx LLP
---------
addressed to the Underwriters, dated the First Closing Date or the Second
Closing Date, as the case may be.
25
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(h) Officers' Certificate. The Representatives shall have received on
the First Closing Date and the Second Closing Date, as the case may be, a
certificate of the Company, dated the First Closing Date or the Second Closing
Date, as the case may be, signed by the Chief Executive Officer and Chief
Financial Officer of the Company, to the effect that, and the Representatives
shall be satisfied that:
(i) The representations and warranties of the Company in this Agreement are
true and correct, as if made on and as of the First Closing Date or the
Second Closing Date, as the case may be, and the Company has complied with
all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the First Closing Date or the Second
Closing Date, as the case may be;
(ii) No stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, threatened
under the Securities Act;
(iii) When the Registration Statement became effective and at all times
subsequent thereto up to the delivery of such officer's certificate, the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, and the Incorporated Documents, when such Incorporated Documents
became effective or were filed with the Commission, contained all material
information required to be included therein by the Securities Act or the
Exchange Act, as the case may be, and in all material respects conformed to
the requirements of the Securities Act or the Exchange Act, as the case may
be; the Registration Statement and the Prospectus, and any amendments or
supplements thereto, did not and does not include any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; and, since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented Prospectus which has
not been so set forth; and
(iv) Subsequent to the respective dates as of which information is given in
the Registration Statement and Prospectus, there has not been (A) any
material adverse change in the condition (financial or otherwise), earnings,
operations, business or business prospects of the Company and its
subsidiaries considered as one enterprise, (B) any transaction that is
material to the Company and its subsidiaries considered as one enterprise,
except transactions entered into in the ordinary course of business, (C) any
obligation, direct or contingent, that is material to the Company and its
subsidiaries considered as one enterprise, incurred by the Company or its
subsidiaries, except obligations incurred in the ordinary course of
business, (D) any change in the capital stock or outstanding indebtedness of
the Company or any of its
26
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
subsidiaries that is material to the Company and its subsidiaries considered
as one enterprise, (E) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company or any of its subsidiaries,
or (F) any loss or damage (whether or not insured) to the property of the
Company or any of its subsidiaries which has been sustained or will have
been sustained that has a material adverse effect on the condition
(financial or otherwise), earnings, operations, business or business
prospects of the Company and its subsidiaries considered as one enterprise.
(i) Lock-up Agreement from Certain Shareholders of the Company. The
Company shall have obtained and delivered to you copies of an agreement
substantially in the form of Exhibit A attached hereto (with such changes as may
---------
be agreed to by the parties thereto) from each executive officer and director of
the Company, each Selling Shareholder and each beneficial owner of one or more
percent of the outstanding share capital of the Company.
(j) Opinion of Counsel for the Selling Shareholders. You shall have
received on the First Closing Date the opinion of Xxxxxx Xxxxxxx Xxxxx &
Scarborough, L.L.P., counsel for the Selling Shareholders, substantially in the
form of Exhibit F attached hereto, dated as of the First Closing Date, addressed
---------
to the Underwriters and with reproduced copies or signed counterparts thereof
for each of the Underwriters.
In rendering such opinion, such counsel may rely as to questions of law not
involving the laws of the United States or State of Georgia upon opinions of
local counsel and as to questions of fact upon representations or certificates
of the Company, Selling Shareholders and of governmental officials, in which
case their opinion is to state that they are so relying and that they have no
actual knowledge of any material misstatement or inaccuracy of any material
misstatement or inaccuracy in any such opinion, representation or certificate so
relied upon shall be delivered to the Representatives of the Underwriters and to
Underwriters' counsel.
(k) Selling Shareholders' Certificate. On the First Closing Date, the
Representatives shall receive a written certificate executed each Selling
Shareholder or his Attorney-in-Fact, dated as of the First Closing Date, to the
effect that:
(i) the representations, warranties and covenants of such Selling
Shareholder set forth in Section 1(B) of this Agreement are true and
correct with the same force and effect as though expressly made by such
Selling Shareholder on and as of the First Closing Date; and
27
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(ii) such Selling Shareholder has complied with all the agreements and
satisfied all the conditions to be performed or satisfied by him at or
prior to the First Closing Date.
(l) Selling Shareholders' Documents. The Company and the Selling
Shareholders shall have furnished for review by the Representatives copies of
the Powers of Attorney and Custody Agreements executed by each of the Selling
Shareholders and such further information, certificates and documents as the
Representatives may reasonably request.
(m) Stock Exchange Listing. The Shares shall have been listed or approved
for inclusion on the Nasdaq National Market, subject only to official notice of
issuance.
(n) Compliance with Prospectus Delivery Requirements. The Company shall
have complied with the provisions of Sections 2(g) and 3(e) hereof with respect
to the furnishing of Prospectuses.
(o) Additional Documents. On or before each of the First Closing Date
and the Second Closing Date, as the case may be, the Representatives and counsel
for the Underwriters shall have received such information, documents and
opinions as they may reasonably require for the purposes of enabling them to
pass upon the issuance and sale of the Shares as contemplated herein, or in
order to evidence the accuracy of any of the representations and warranties, or
the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 4 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by written notice to the Company and the Selling Shareholders at
any time on or prior to the First Closing Date and, with respect to the Option
Shares, at any time prior to the Second Closing Date, which termination shall be
without liability on the part of any party to any other party, except that
Section 5 (Payment of Expenses), Section 6 (Reimbursement of Underwriters'
Expenses), Section 7 (Indemnification and Contribution) and Section 10
(Representations and Indemnities to Survive Delivery) shall at all times be
effective and shall survive such termination.
Section 5. Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Company Shares (including all printing and engraving costs), (ii) all fees and
expenses of the registrar and transfer agent
28
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
of the Common Stock, (iii) all necessary issue, transfer and other stamp taxes
in connection with the issuance and sale of the Company Shares to the
Underwriters, (iv) all fees and expenses of the Company's counsel, independent
public or certified public accountants and other advisors, (v) all costs and
expenses incurred in connection with the preparation, printing, filing, shipping
and distribution of the Registration Statement (including financial statements,
exhibits, schedules, consents and certificates of experts), each preliminary
prospectus and the Prospectus, and all amendments and supplements thereto, and
this Agreement, (vi) all filing fees, attorneys' fees and expenses incurred by
the Company or the Underwriters in connection with qualifying or registering (or
obtaining exemptions from the qualification or registration of) all or any part
of the Shares for offer and sale under the state securities or blue sky laws
(not to exceed $5,000 in the aggregate without the Company's written consent) or
the provincial securities laws of Canada or any other country (not to exceed
$7,500 in the aggregate without the Company's written consent), and, if
requested by the Representatives, preparing and printing a "Blue Sky Survey," an
"International Blue Sky Survey" or other memorandum, and any supplements
thereto, advising the Underwriters of such qualifications, registrations and
exemptions, (vii) the filing fees incident to, and the fees and expenses of
counsel for the Underwriters in connection with, the NASD review and approval of
the Underwriters' participation in the offering and distribution of the Common
Shares, (viii) the fees and expenses associated with including the Common Shares
on the Nasdaq National Market, (ix) all costs and expenses incident to the
preparation and undertaking of "road show" preparations to be made to
prospective investors, and (x) all other fees, costs and expenses referred to in
Item 14 of Part II of the Registration Statement. Except as provided in this
Section 5, Section 6, and Section 7 hereof, the Underwriters shall pay their own
expenses, including the fees and disbursements of their counsel.
The Selling Shareholders further agree with each Underwriter and the Company
to pay (directly or by reimbursement) all fees and expenses incident to the
performance of their obligations under this Agreement which are not otherwise
specifically provided for herein, including but not limited to (i) fees and
expenses of counsel and other advisors for such Selling Shareholders, (ii) fees
and expenses of the Custodian and (iii) expenses, underwriting discounts and
commissions, and taxes incident to the sale and delivery of the Selling
Shareholder Shares to be sold by such Selling Shareholders to the Underwriters
hereunder (which taxes, if any, may be deducted by the Custodian under the
provisions of Section 2 of this Agreement).
This Section 5 shall not affect or modify any separate, valid written
agreement relating to the allocation of payment or reimbursement of expenses
between the Company, on the one hand, and the Selling Shareholders, on the other
hand.
29
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
Section 6. Reimbursement of Underwriters' Expenses. If this Agreement is
terminated by the Representatives pursuant to Section 4, Section 7, Section 9 or
Section 15, or if the sale to the Underwriters of the Shares on the First
Closing Date is not consummated because of any refusal, inability or failure on
the part of the Company or the Selling Shareholders to perform any agreement
herein or to comply with any provision hereof, the Company agrees to reimburse
the Representatives and the other Underwriters (or such Underwriters as have
terminated this Agreement with respect to themselves), severally, upon demand
for all out-of-pocket expenses that shall have been reasonably incurred by the
Representatives and the Underwriters in connection with the proposed purchase
and the offering and sale of the Shares as contemplated in this Agreement,
including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges (subject to
applicable limits on such amounts as may be set forth elsewhere herein).
Section 7. Indemnification and Contribution.
(a) Indemnification of the Underwriters.
(i) The Company agrees to:
(A) indemnify and hold harmless each Underwriter, its officers and
employees, and each person, if any, who controls any Underwriter within
the meaning of the Securities Act and the Exchange Act, against any
loss, claim, damage, liability or expense, as incurred, to which such
Underwriter or such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory
law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of the Company, which consent shall not be unreasonably
withheld), insofar as such loss, claim, damage, liability or expense
(or actions in respect thereof as contemplated below) arises out of or
is based:
(1) upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part
thereof pursuant to Rule 430A or Rule 434 under the Securities
Act, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading; or
30
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
(2) upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or
(3) in whole or in part upon any inaccuracy in the representations
and warranties of the Company set forth herein; or
(4) in whole or in part upon any failure of the Company to perform
its obligations hereunder or under law; or
(5) upon any act or failure to act or 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 any matter covered by clause (1), (2), (3) or
(4) above, provided that the Company shall not be liable under this clause
(5) to the extent that a court of competent jurisdiction shall have
determined by a final judgment 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 bad faith or willful
misconduct; and
(B) reimburse each Underwriter and each such controlling person for any and
all expenses (including the fees and disbursements of counsel chosen by
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.) as such expenses are reasonably
incurred by such Underwriter or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action;
provided, however, that the foregoing indemnity agreement shall not apply to any
-------- -------
loss, claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company by the Representatives expressly
for use in the Registration Statement, any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); and provided, further, that
-------- -------
with respect to any preliminary prospectus, the foregoing indemnity agreement
shall not inure to the benefit of any Underwriter from whom the person
31
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
asserting any loss, claim, damage, liability or expense purchased Shares, or any
person controlling such Underwriter, if copies of the Prospectus were timely
delivered to the Representatives pursuant to Section 2 and a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
indemnity agreement set forth in this Section 7(a) shall be in addition to any
liabilities that the Company may otherwise have.
(ii) The Selling Shareholders, severally and not jointly, agree to:
(A) indemnify and hold harmless each Underwriter, its officers and
employees, and each person, if any, who controls any Underwriter
within the meaning of the Securities Act and the Exchange Act against
any loss, claim, damage, liability or expense, as incurred, to which
such Underwriter or such controlling person may become subject, under
the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including
in settlement of any litigation, if such settlement is effected with
the written consent of the Company and such Selling Shareholder or his
Attorney-in-Fact, which consent shall not be unreasonably withheld),
insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based:
(1) upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any
amendment thereto, including any information deemed to be a part
thereof pursuant to Rule 430A or Rule 434 under the Securities
Act, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the
statements therein not misleading; or
(2) upon any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
in the case of subparagraphs (1) and (2) of this Section 7(a)(ii)
to the
32
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
extent, but 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 or such Underwriter by the Selling
Shareholder, directly or through the Selling Shareholder's
representatives, specifically for use in the preparation thereof;
or
(3) in whole or in part upon any inaccuracy in the
representations and warranties of such Selling Shareholder
contained herein; or
(4) in whole or in part upon any failure of such Selling
Shareholder to perform his obligations hereunder or under law; or
(5) any act or failure to act or 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 any
matter covered by clause (1), (2), (3) or (4) above, provided
that the Selling Shareholder shall not be liable under this
clause (5) to the extent that a court of competent jurisdiction
shall have determined by a final judgment 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 bad faith or willful misconduct; and
(B) reimburse each Underwriter and each such controlling person for
any and all expenses (including the fees and disbursements of counsel
chosen by FleetBoston Xxxxxxxxx Xxxxxxxx Inc.) as such expenses are
reasonably incurred by such Underwriter or such controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however, that the foregoing indemnity agreement shall not apply to any
-------- -------
loss, claim, damage, liability or expense to the extent, but only to the extent,
arising out of or based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in reliance upon and in conformity with
written information furnished to the Company or the Selling Shareholder by the
Representatives expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); and
provided, further, that with respect to any preliminary prospectus, the
-------- -------
foregoing indemnity agreement shall not inure to the benefit of any
33
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
Underwriter from whom the person asserting any loss, claim, damage, liability or
expense purchased Shares, or any person controlling such Underwriter, if copies
of the Prospectus were timely delivered to the Representatives pursuant to
Section 2 and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or expense; and provided, further, that the liability of each
-------- -------
Selling Shareholder under the foregoing indemnity agreement shall be limited to
an amount equal to (i) the number of Shares sold by such Selling Shareholder
pursuant to the Prospectus multiplied by (2) the public offering price of the
Shares sold by such Selling Shareholder, less the underwriting discount, as set
forth on the front cover page of the Prospectus. The indemnity agreement set
forth in this Section 7(a) shall be in addition to any liabilities that the
Selling Shareholder may otherwise have.
(b) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, the Selling Shareholders and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of the
Securities Act or the Exchange Act, against any loss, claim, damage, liability
or expense, as incurred, to which the Company, or any such director, officer,
Selling Shareholder or controlling person may become subject, under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or 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 each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto), in reliance
upon and in conformity with written information furnished to the Company or the
Selling Shareholders by the Representatives expressly for use therein; and to
reimburse the Company, or any such director, officer, Selling Shareholder or
controlling person for any legal and other expense reasonably incurred by the
Company, or any such director, officer, Selling Shareholder or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage,
34
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
liability, expense or action. The indemnity agreement set forth in this Section
7(b) shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c) Information Provided by the Underwriters. The Company and each of the
Selling Shareholders hereby acknowledge that the only information that the
Underwriters have furnished to the Company and the Selling Shareholders
expressly for use in the Registration Statement, any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) are the statements set
forth (i) the last sentence of the last paragraph on the front cover page of the
Prospectus and preliminary prospectus, and (ii) in the table in the first
paragraph, the second paragraph and in the paragraphs entitled "Stabilization"
and "Regulation M/Passive Market Making" under the caption "Underwriting" in the
Prospectus and preliminary prospectus; and the Underwriters confirm that such
statements are correct.
(d) Notifications and Other Indemnification Procedures. Promptly after
receipt by an indemnified party under this Section 7 of notice of the
commencement of any action referenced in this Section 7, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof. The omission, delay or failure so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 7 or to the extent it is not prejudiced as a
proximate result of such omission, delay or failure. In case any such action is
brought against any indemnified party and such indemnified party seeks or
intends to seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it shall elect,
jointly with all other indemnifying parties similarly notified, by written
notice delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof with counsel
reasonably satisfactory to such indemnified party; provided, however, if the
-------- -------
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the
35
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (together with local counsel), approved by the indemnifying
party (FleetBoston Xxxxxxxxx Xxxxxxxx Inc. in the case of Section 7(b) and
Section 8), representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, or (iii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(e) Settlements. The indemnifying party under this Section 7 shall not
be liable for any settlement (or costs or expenses associated therewith) of any
proceeding effected without its written consent, which consent shall not be
unreasonably withheld, 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 against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by Section 7(d) hereof, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent includes (i) an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit 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) Contribution. If the indemnification provided for in this Section 7
is unavailable to or insufficient to hold harmless an indemnified party under
Section 7(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) as to which such
indemnified party is entitled to indemnification hereunder, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders, on the
one hand,
36
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
and the Underwriters, on the other hand, 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 and the Selling Shareholders, on the one hand, and the
Underwriters, on the other hand, 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 and the Selling
Shareholders on the one hand, and the Underwriters, on the other hand, 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 Shareholders
bears 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 or the Selling Shareholders, on the one hand, or the
Underwriters, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company, the Selling Shareholders and Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 7(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 that does not take
account of the equitable considerations referred to above in this Section 7(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 7(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), (i) 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, (ii) no Selling
Shareholder shall be required to contribute an amount in excess of the maximum
amount of his indemnification obligations under Section 7(a) or 7(b) above, and
(iii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this Section 7(f) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(h) Timing of Any Payments of Indemnification. Any losses, claims,
damages, liabilities or expenses for which an indemnified party is entitled to
indemnification or
37
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
contribution under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred, but in all cases, no later than sixty (60) days of invoice to the
indemnifying party.
(i) Survival. The indemnity and contribution agreements contained in
this Section 7, and the representation and warranties of the Company set forth
in this Agreement, shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers
or any persons controlling the Company, (ii) acceptance of any Shares and
payment therefor hereunder, and (iii) any termination of this Agreement. A
successor to any Underwriter, or to the Company, its directors or officers, or
any person controlling the Company, or to the Selling Shareholders, their
representatives and successors, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
7.
(h) Acknowledgements of Parties. The parties to this Agreement hereby
acknowledge that they are sophisticated business persons who were represented by
counsel during the negotiations regarding the provisions hereof including,
without limitation, the provisions of this Section 7, and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 7 fairly allocate the risks in light of the ability of the parties to
investigate the Company and its business in order to assure that adequate
disclosure is made in the Registration Statement and Prospectus as required by
the Securities Act and the Exchange Act.
Section 8. Default of One or More of the Several Underwriters. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Shares that it
or they have agreed to purchase hereunder on such date, and the aggregate number
of Common Shares that such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase does not exceed 10% of the aggregate number of the
Shares to be purchased on such date, the non-defaulting Underwriters shall be
obligated, severally, under the same terms and conditions set forth in this
Agreement and in the proportions that the number of Firm Shares set forth
opposite their respective names on Schedule A bears to the aggregate number of
----------
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as may be specified by the
Representatives with the consent of the non-defaulting Underwriters, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date. If, on the First Closing Date or the Second
Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Shares and the aggregate number of Shares with respect to
which such default occurs exceeds 10% of the aggregate number of Shares to be
purchased on such date, and arrangements reasonably satisfactory to the
38
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
Representatives and the Company for the purchase of such Shares are not made
within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Section
4 and Section 7 shall at all times be effective and shall survive such
termination and except any action taken under this Section 8 shall not relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement. In any such case, either the Representatives
or the Company shall have the right to postpone the First Closing Date or the
Second Closing Date, as the case may be, but in no event for longer than seven
days in order that the required changes, if any, to the Registration Statement
and the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term "Underwriter" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
8.
Section 9. Termination of this Agreement. Prior to the First Closing Date,
this Agreement may be terminated by the Representatives by notice given to the
Company and the Selling Shareholders if at any time (i) trading or quotation in
any of the Company's securities shall have been suspended or limited by the
Commission or by the Nasdaq Stock Market, or trading in securities generally on
either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges by the Commission or the NASD; (ii) a
general banking moratorium shall have been declared by any of federal, New York,
Georgia or California authorities; (iii) there shall have occurred any outbreak
or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States' or international financial
markets, or any substantial change or development involving a prospective change
in the United States' or international political, financial or economic
conditions, as in the judgment of the Representatives is material and adverse
and makes it impracticable or inadvisable to market the Shares in the manner and
on the terms described in the Prospectus or to enforce contracts for the sale of
securities; (iv) in the judgment of the Representatives there shall have
occurred any Material Adverse Change; or (v) the Company shall have sustained a
loss by strike, fire, flood, earthquake, accident or other calamity of such
character and magnitude as in the judgment of the Representatives may interfere
materially with the conduct of the business and operations of the Company and
its subsidiaries, considered as one enterprise, regardless of whether or not
such loss shall have been insured. Any termination pursuant to this Section 9
shall be without liability on the part of (a) the Company or the Selling
Shareholders to any Underwriter, except that the Company and the Selling
Shareholders shall be obligated to reimburse the expenses of the Representatives
and the Underwriters pursuant to Sections 5 and 6 hereof, (b) any Underwriter to
the Company or the Selling Shareholders, or (c) of any party hereto to any
39
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
other party except that the provisions of Section 7 shall at all times be
effective and shall survive such termination.
Section 10. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its executive officers, of the Selling
Shareholders and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
its or their partners, officers or directors or any controlling person, or the
Selling Shareholders, as the case may be, and will survive delivery of and
payment for the Shares sold hereunder and any termination of this Agreement.
Section 11. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered (including by reputable overnight delivery
services) or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
With a copy (which shall not constitute notice) to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: X. Xxxx Xxxxxxxx
40
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
If to the Company:
The InterCept Group, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
First Union Plaza
Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
If to the Selling Shareholders:
SunTrust Bank, Atlanta, as Custodian
00 Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: [___]
Attention: Corporate Trust Department
With a copy to:
The InterCept Group, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
Any party hereto may change the address for receipt of communications by giving
written notice to the others. Any notice made or delivered as set forth above
shall be deemed delivered (i) three business days after deposit, postage
prepaid, in the U.S. mails, (ii) when hand delivered or one business day after
deposit, delivery charges paid, with a reputable
41
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
overnight delivery service, or (iii) when delivered by facsimile (as provided in
the required confirmation of such facsimile).
Section 12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 9 hereof, and to the benefit of the employees, officers and directors
and controlling persons referred to in Section 7, and to their respective
successors, personal representatives and permitted assigns, and no other person
will have any right or obligation hereunder. The term "successors" shall not
include any purchaser of the Shares as such from any of the Underwriters merely
by reason of such purchase.
Section 13. Partial Unenforceability. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
Section 14. Governing Law Provisions.
(a) Governing Law. This agreement shall be governed by and construed in
accordance with the internal laws of the state of New York applicable to
agreements made and to be performed in such state.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("Related Proceedings") may be instituted in the federal courts of the
United States of America located in the City and County of San Francisco or the
courts of the State of California in each case located in the City and County of
San Francisco (collectively, the "Specified Courts"), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a "Related
Judgment"), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the
laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding
42
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
brought in any such court has been brought in an inconvenient forum. Each party
not located in the United States irrevocably appoints CT Corporation System,
which currently maintains a San Francisco office at 00 Xxxxxxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America, as its agent to receive
service of process or other legal summons for purposes of any such suit, action
or proceeding that may be instituted in any state or federal court in the City
and County of San Francisco.
Section 15. Failure of One or More of the Selling Shareholders to Sell and
Deliver Common Shares. If one or more of the Selling Shareholders shall fail to
sell and deliver to the Underwriters an aggregate of more than 150,000 Shares to
be sold and delivered by such Selling Shareholders at the First Closing Date
pursuant to this Agreement, then the Underwriters may at their option, by
written notice from the Representatives to the Company and the Selling
Shareholders, either (i) require the Company and/or the non-defaulting Selling
Shareholders to sell such number of Common Shares as is equal to the number of
Shares that such defaulting Selling Shareholder had agreed to sell to the
Underwriters hereunder, or (ii) purchase the shares that the Company and other
Selling Shareholders have agreed to sell and deliver in accordance with the
terms hereof. If one or more of the Selling Shareholders shall fail to sell
and deliver to the Underwriters the Shares to be sold and delivered by such
Selling Shareholders pursuant to this Agreement at the First Closing Date, then
the Underwriters shall have the right, by written notice from the
Representatives to the Company and the Selling Shareholders, to postpone the
First Closing Date, but in no event for longer than seven days in order that the
required changes, if any, to the Registration Statement and the Prospectus or
any other documents or arrangements may be effected.
Section 16. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in
two or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Section headings herein are for the convenience of the parties only and
shall not affect the construction or interpretation of this Agreement.
43
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Custodian the enclosed copies
hereof, whereupon this instrument, along with all counterparts hereof, shall
become a binding agreement in accordance with its terms.
Very truly yours,
THE INTERCEPT GROUP, INC.
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
THE SELLING SHAREHOLDERS
(severally and not jointly):
-----------------------------------------
Xxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxxxx
-----------------------------------------
Vir A. Nanda
44
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
-----------------------------------------
Xxxxxxx X. Xxxxx
By:
-------------------------------------
Attorney-in-fact for the Selling
Shareholders named in Schedule B
----------
hereto
By:
-------------------------------------
Attorney-in-fact for the Selling
Shareholders named in Schedule B
----------
hereto
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives as of the date first above written.
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
X.X. XXXXXXXX & CO.
FIRST UNION SECURITIES, INC.
SUNTRUST EQUITABLE SECURITIES CORPORATION
On their behalf and on behalf of each of the several underwriters named in
Schedule A hereto.
----------
By FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
By:
--------------------------------
Authorized Signatory
45
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
SCHEDULE A
Number of
Firm Common Shares
Underwriters To be Purchased
------------ ------------------
FLEETBOSTON XXXXXXXXX XXXXXXXX INC........................ [_________]
X. X. XXXXXXXX & CO....................................... [_________]
FIRST UNION SECURITIES, INC............................... [_________]
SUNTRUST EQUITABLE SECURITIES CORPORATION................. [_________]
Total.................................................. 3,000,000
=========
46
FleetBoston Xxxxxxxxx Xxxxxxxx Inc., et al.
February , 2000
SCHEDULE B
Number of
Firm Shares
Selling Shareholder to be Sold
------------------- -----------
Xxxx X. Xxxxxxx.............................................. 100,000
[address]
Xxxxx X. Xxxxxxxxx........................................... 45,000
[address]
Xxxxx X. Xxxxxxx............................................. 75,000
[address]
Xxxxxxx X. Xxxxxxxx.......................................... 45,000
[address]
Xxxxx X. Xxxxxxxxx........................................... 15,000
[address]
Vir A. Nanda................................................. 25,000
[address]
Xxxxxxx X. Xxxxx............................................. 45,000
[address]
-------
Total:.................................................. 350,000
=======
47
