ACSYS, INC.
2,750,000 SHARES
OF
COMMON STOCK
UNDERWRITING AGREEMENT
_________ __, 1998
X.X. XXXXXXXX & CO.
XXXXXX XXXXXXXXXX XXXXX INC.
As Representatives of the Several Underwriters
c/o X.X. Xxxxxxxx & Co.
X.X. Xxxxxxxx Financial Center
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
ACSYS, Inc., a Georgia corporation (the "Company"), and certain
shareholders of the Company identified on Schedule I hereto (the "Selling
Shareholders") propose to sell to the several underwriters named in Schedule II
hereto (the "Underwriters"), for whom you are acting as the representatives (the
"Representatives"), 2,430,000 and 320,000 shares, respectively (the "Firm
Shares"), of common stock, no par value (the "Common Stock"), of the Company.
The Company proposes to grant to the Underwriters an option to purchase up to
412,500 additional shares of Common Stock (the "Option Shares"), as provided for
in Section 3 of this Agreement for the purpose of covering over-allotments. The
Underwriters, severally and not jointly, are willing to purchase the Firm Shares
set forth opposite their respective names on Schedule II hereto and their pro
rata share of the Option Shares in the event the Representatives elect to
exercise the over-allotment option in whole or in part. The Firm Shares and the
Option Shares purchasable pursuant to this Agreement are collectively referred
to herein as the "Shares."
1. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), a registration statement on Form S-1
(Registration No. 333-38465), including the related preliminary
prospectus relating to the Shares, and has filed one or more amendments
thereto. Copies of such registration statement and any amendments,
including any post-effective amendments, and all forms of the related
prospectuses contained therein and any supplements thereto, have been
delivered to you. Such registration statement, including the prospectus,
Part II, all financial schedules and exhibits thereto, and all
information deemed to be a part of such Registration Statement pursuant
to Rule 430A under the Securities Act, as amended at the time when it
shall become effective, is herein referred to as the "Registration
Statement," and the prospectus included as part of the Registration
Statement on file with the Commission that discloses all the information
that was omitted from the prospectus on the effective date pursuant to
Rule 430A of the Rules and Regulations (as defined below) and in the
form filed pursuant to Rule 424(b) under the Securities Act is herein
referred to as the "Final Prospectus." The prospectus included as part
of the Registration Statement on the date when the Registration
Statement became effective is referred to herein as the "Effective
Prospectus." Any prospectus included in the Registration Statement and
in any amendment thereto prior to the effective date of the Registration
Statement that is distributed to potential investors is referred to
herein as a "Preliminary Prospectus." For purposes of this Agreement,
"Rules and Regulations" mean the rules and regulations promulgated by
the Commission under either the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus, and each Preliminary
Prospectus, at the time of filing thereof, complied with the
requirements of the Securities Act and the Rules and Regulations, and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing does not apply to
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the last
paragraph on the cover page and in the first and third paragraphs under
the caption "Underwriting" in the Preliminary, Effective and Final
Prospectus). When the Registration Statement becomes effective and at
all times subsequent thereto up to and including the First Closing Date
(as hereinafter defined), (i) the Registration Statement, the Effective
Prospectus and Final Prospectus and any amendments or supplements
thereto will contain all statements which are required to be stated
therein in accordance with the Securities Act, the Exchange Act and the
Rules and Regulations and will comply with the requirements of the
Securities Act, the Exchange Act and the Rules and Regulations, and (ii)
neither the Registration Statement, the Effective Prospectus nor the
Final Prospectus nor any amendment or supplement thereto will include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they are made, not
misleading; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for
use therein (it being understood that the only information so provided
is the information included in the last paragraph on the cover page and
in the first and third paragraphs under the caption "Underwriting" in
the Final Prospectus).
(c) Each of the Company and each subsidiary of the Company (as
used herein, the term "subsidiary" includes any corporation, joint
venture, or partnership in which the Company or any subsidiary of the
Company has an ownership interest) is duly incorporated and validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to own, lease and
operate its properties and conduct its business as now conducted and is
duly qualified or authorized to do business and is in good standing in
all jurisdictions wherein the nature of its business or the character of
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property owned or leased may require it to be qualified or authorized to
do business. Each of the Company and its subsidiaries holds all
licenses, consents and approvals, and has satisfied all eligibility and
other similar requirements imposed by federal and state regulatory
bodies, administrative agencies or other governmental bodies, agencies
or officials, in each case as required for the conduct of the business
in which it is engaged and is contemplated to be engaged in the
Effective Prospectus and the Final Prospectus, except where the failure
to do so would not have a material adverse effect on the Company and its
subsidiaries taken as a whole. Each of the Company's subsidiaries is set
forth on Exhibit 21.1 to the Registration Statement.
(d) As of the date hereof, and except as disclosed in the
Effective Prospectus and Final Prospectus the Company owns all of the
outstanding shares of capital stock of the Company's subsidiaries set
forth on Exhibit 21.1 to the Registration Statement, directly or
indirectly through another subsidiary, free and clear of all liens,
claims, encumbrances, security interests, restrictions, shareholder
agreements, voting trusts or other claims of third parties. The Company
has no other subsidiaries and is not a partner or joint venturer in any
partnership or joint venture. All of the outstanding shares of capital
stock of the Company's subsidiaries set forth on Exhibit 21.1 to the
Registration Statement have been duly authorized and validly issued and
are fully paid and nonassessable. There are no preemptive rights or
other rights to subscribe for or purchase, or any restriction upon the
transfer of any shares of capital stock of the Company's subsidiaries
pursuant to any subsidiary's articles of incorporation or charter,
bylaws, or other governing documents or any agreement or other
instruments to which such subsidiary is a party.
(e) The capitalization of the Company as of September 30, 1997
is as set forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus, and the Company's capital stock
conforms to the description thereof contained under the caption
"Description of Capital Stock" in the Effective Prospectus and the Final
Prospectus. All the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable. None of the issued shares of capital stock of the Company
have been issued in violation of any preemptive or similar rights. The
Shares have been duly and validly authorized and, upon issuance and
delivery and payment therefor in the manner herein described, will be
validly issued, fully paid and nonassessable. There are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the transfer of, any shares of Common Stock pursuant to
the Company's articles of incorporation, bylaws or other governing
documents or any agreement or other instrument to which the Company is a
party or by which it may be bound except as described in the Effective
Prospectus and the Final Prospectus. Neither the filing of the
Registration Statement nor the offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those which have been waived or satisfied, for or relating to the
registration of any shares of Common Stock or any other securities of
the Company. The Underwriters will receive good and marketable title to
the Shares to be issued and delivered hereunder, free and clear of all
liens, encumbrances, claims, security interests, restrictions,
shareholders' agreements and voting trusts whatsoever.
(f) All offers and sales by the Company of the Company's
securities prior to the date hereof were at all relevant times exempt
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from the registration requirements of the Securities Act and were duly
registered or the subject of an available exemption from the
registration requirements of the applicable state securities or Blue Sky
laws.
(g) The Company has full legal right, power and authority to
enter into this Agreement and to sell and deliver the Shares to be sold
by it to the Underwriters as provided herein, and this Agreement has
been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as
enforceability may be limited by applicable principles or by bankruptcy,
insolvency, reorganization, moratorium or similar laws from time to time
in effect affecting the enforcement of creditors' rights. No consent,
approval, authorization or order of any court or governmental agency or
body or third party is required for the performance of this Agreement or
the consummation by the Company of the transactions contemplated hereby,
except such as have been obtained and such as may be required by the
National Association of Securities Dealers, Inc. ("NASD") or under the
Securities Act, or state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters. The
issue and sale of the Shares by the Company, the Company's performance
of this Agreement and the consummation of the transactions contemplated
hereby will not result in a breach or violation of, or conflict with,
any of the terms and provisions of, or constitute a default by the
Company under, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or to which any of their properties is
subject, the articles of incorporation or bylaws of the Company or any
statute or any judgment, decree, order, rule or regulation of any court
or governmental agency or body applicable to the Company or any of its
subsidiaries or any of their properties. Neither the Company nor any of
its subsidiaries is in violation of its articles of incorporation or
charter or bylaws or any law, administrative rule or regulation or
arbitrator's or administrative or court decree, judgment or order or in
violation or default (there being no existing state of facts which with
notice or lapse of time or both would constitute a default) in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
deed of trust, mortgage, loan agreement, note, lease, agreement or other
instrument or permit to which it is a party or by which it or any of its
properties is or may be bound.
(h) The consolidated financial statements and the related notes
of the Company included in the Registration Statement, the Effective
Prospectus and the Final Prospectus present fairly, in all material
respects, the consolidated financial position, results of operations and
changes in financial position and cash flow of the Company at the dates
and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods indicated. The other financial
statements and schedules included in or as schedules to the Registration
Statement conform to the requirements of the Securities Act and the
Rules and Regulations and present fairly the information presented
therein for the periods shown. The financial and statistical data set
forth in the Effective Prospectus and the Final Prospectus under the
captions "Prospectus Summary," "Use of Proceeds," "Dilution,"
"Capitalization," "Selected Consolidated Financial Data," "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," "Business" and "Principal and Selling Shareholders" fairly
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presents the information set forth therein on the basis stated in the
Effective Prospectus and the Final Prospectus.
(i) Subsequent to September 30, 1997, neither the Company nor
any of its subsidiaries has sustained any material loss or interference
with its business or properties from fire, flood, hurricane, earthquake,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
which is not disclosed in the Effective Prospectus and the Final
Prospectus; and subsequent to the respective dates as of which
information is given in the Registration Statement, the Effective
Prospectus and the Final Prospectus, (i) neither the Company nor any of
its subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any transactions not in the
ordinary course of business, and (ii) there has not been any change in
the capital stock, partnership interests, joint venture interests, long-
term debt, obligations under capital leases or short-term borrowings of
the Company or any of its subsidiaries, or any issuance of options,
warrants or rights to purchase the capital stock of the Company or any
of its subsidiaries, or any adverse change, or any development involving
a prospective adverse change, in the general affairs, management,
business, prospects, financial position, net worth or results of
operations of the Company or any of its subsidiaries, except in each
case as described in the Effective Prospectus and the Final
Prospectus.
(j) Except as described in the Effective Prospectus and the
Final Prospectus, there is not pending, or to the knowledge of the
Company threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company or any of its subsidiaries or any of
their respective officers or directors is a party, or to which the
property of the Company or any of its subsidiaries is subject, before or
brought by any court or governmental agency or body, wherein an
unfavorable decision, ruling or finding could prevent or materially
hinder the consummation of this Agreement or could result in a material
adverse effect on the business condition (financial or otherwise),
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole.
(k) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus
or to be filed as exhibits to the Registration Statement which have not
been described or filed as required.
(l) Except as described in the Effective Prospectus and the
Final Prospectus, each of the Company and each of its subsidiaries has
good and marketable title to all real and material personal property
owned by it, free and clear of all liens, charges, encumbrances or
defects except those reflected in the financial statements hereinabove
described. The real and personal property and buildings referred to in
the Effective Prospectus and the Final Prospectus which are leased from
others by the Company or its subsidiaries are held under valid,
subsisting and enforceable leases, except as enforceability may be
limited by applicable equitable principles or by bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect
affecting the enforcement of creditors' rights. Each of the Company and
each of its subsidiaries owns or leases all such properties as are
necessary to their operations as now conducted.
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(m) The Company's and its subsidiaries' systems of internal
accounting controls taken as a whole are sufficient to meet the broad
objectives of internal accounting control insofar as those objective
pertain to the prevention or detection of errors or irregularities in
amounts that would be material in relation to their financial
statements; and, except as disclosed in the Effective Prospectus and the
Final Prospectus, none of the Company, its subsidiaries or any employee
or agent of the Company or its subsidiaries has made any payment of
funds of their respective company or received or retained any funds in
violation of any law, rule or regulation.
(n) Each of the Company and each of its subsidiaries has filed
all federal, state and local income, excise and franchise tax returns
required to be filed through the date hereof and has paid all taxes
shown as due therefrom to the extent such taxes have become due and are
not being contested in good faith; and there is no tax deficiency that
has been, nor does the Company or any of its subsidiaries have knowledge
of any tax deficiency which is likely to be asserted against the Company
or any of its subsidiaries, which if determined adversely could
materially and adversely affect the earnings, assets, affairs, business
prospects or condition (financial or otherwise) of the Company and its
subsidiaries, taken as a whole. The Company has made all filings
necessary to be treated as an S Corporation as defined in Section
1361(a) of the Internal Revenue Code of 1986, as amended, from the
Company's inception through the date hereof.
(o) Each of the Company and each of its subsidiaries operates
its businesses in conformity in all material respects with all
applicable statutes, common laws, ordinances, decrees, orders, rules and
regulations of governmental bodies. Each of the Company and each of its
subsidiaries has all material licenses, approvals or consents to operate
their businesses in all locations in which such businesses are currently
being operated, and neither the Company nor any of its subsidiaries is
aware of any existing or imminent matter that may materially adversely
impact its operations or business prospects other than as specifically
disclosed in the Effective Prospectus and the Final Prospectus.
(p) Each of the Company and each of its subsidiaries has filed
with the applicable regulatory authorities all statements, reports,
information or forms required by all applicable laws, regulations or
orders, including all franchising laws, except where such failure to
file would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all such filings or submissions were in
substantial compliance with applicable laws when filed and no
deficiencies have been asserted by any regulatory commission, agency or
authority with respect to such filings or submissions. Each of the
Company and each of its subsidiaries has maintained in full force and
effect all material licenses, registrations or permits necessary or
proper for the conduct of their respective businesses, and neither the
Company nor any of its subsidiaries has received any notification that
any revocation or limitation thereof is threatened or pending, and,
except as disclosed in the Effective Prospectus and the Final
Prospectus, there is not to the knowledge of the Company pending any
change under any law, regulation, license or permit which could
materially adversely affect the business, operations, property or
business prospects of the Company or any of its subsidiaries. Neither
the Company nor any of its subsidiaries has received any notice of
violation of or been threatened with a charge of violating, and is not
under investigation with respect to a possible violation of, any
provision of any law, regulation or order which would have a material
adverse effect on the Company and its subsidiaries taken as a whole.
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(q) No labor dispute exists or to the knowledge of the Company
is imminent with the Company's or any of its subsidiaries' employees
which could be expected to materially adversely affect the condition
(financial or otherwise), results of operations, properties, affairs,
management, business affairs or business prospects of the Company and
its subsidiaries, taken as a whole. Neither the Company nor any of its
subsidiaries is aware of any existing or imminent labor disturbance by
any of their employees which could be expected to materially adversely
affect the condition (financial or otherwise), results of operations,
properties, affairs, management, business affairs or business prospects
of the Company and its subsidiaries, taken as a whole.
(r) Except as disclosed in the Effective Prospectus and the
Final Prospectus, the Company owns or has licensed the patents,
licenses, copyrights, trademarks, service marks and trade names
presently employed by it in connection with the businesses now operated
by it, and neither the Company nor any of its subsidiaries has received
any notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, alone or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, could
result in any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries, taken as a whole.
(s) Neither the Company nor any of its subsidiaries, nor any of
the directors, officers, employees or agents of the Company or its
subsidiaries, have taken and will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which
might be expected to constitute, stabilization or manipulation of the
price of the Common Stock.
(t) Each of the Company and its subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the business
in which it is engaged; and neither the Company nor any of its
subsidiaries has any reason to believe that it will not be able to renew
its existing insurance coverage as and which such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business at comparable cost.
(u) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
(v) The Shares have been approved for designation on The NASD
Automated Quotation National Market System upon notice of issuance.
(w) Any certificates signed by any officer of the Company and
delivered to the Representatives or to counsel for the Representatives
shall be deemed a representation and warranty by the Company to each
Underwriter as to the matters covered thereby.
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2. Representations and Warranties of the Selling Shareholders.
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Each of the Selling Shareholders, severally and not jointly, represents and
warrants to, and agrees with each of the Underwriters that:
(a) Such Selling Shareholder at the First Closing Date (as such
closing date is defined herein), will have valid and marketable title to
the Shares set forth in Schedule I to be sold by such Selling
Shareholder, free and clear of any liens, encumbrances, equities and
claims (other than as imposed by the Securities Act or this Agreement),
and full right, power and authority to effect the sale and delivery of
such Shares; and upon the delivery of and payment for the Shares to be
sold by such Selling Shareholder pursuant to this Agreement, valid and
marketable title thereto, free and clear of any liens, encumbrances,
equities and claims, will be transferred to the Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the
Custody Agreement and the Power of Attorney in the forms previously
delivered to the Representatives, appointing Messrs. Xxxxxxx Xxxx, Xx.,
Xxxxx X. Xxxxxx and Xxxxxx Xxxxxxxxx, and any one of them, as each
Selling Shareholder's attorney in fact (collectively, the "Attorney-in-
Fact") and the Company as custodian (the "Custodian"). The Attorney-in-
Fact is authorized to execute, deliver and perform this Agreement on
behalf of such Selling Shareholder, to deliver the Shares to be sold by
such Selling Shareholder hereunder, to accept payment therefor and
otherwise to act on behalf of such Selling Shareholder in connection
with this Agreement. Certificates, in suitable form for transfer by
delivery or accompanied by duly executed instruments of transfer or
assignment in blank, representing the Shares to be sold by such Selling
Shareholder hereunder have been deposited with the Custodian pursuant to
the Custody Agreement for the purpose of delivery pursuant to this
Agreement. Such Selling Shareholder agrees that the shares of Common
Stock represented by the certificates on deposit with the Custodian are
subject to the interest of the Underwriters hereunder, that the
arrangements made for such custody and the appointment of the Attorney-
in-Fact are to that extent irrevocable, and that the obligations of such
Selling Shareholder hereunder shall not be terminated except as provided
in this Agreement and the Custody Agreement. If such Selling Shareholder
should die or become incapacitated or if any other event should occur,
before the delivery of the Shares of such Selling Shareholder hereunder
which renders such Selling Shareholder incapable of acting on his own
behalf, the certificates for such Shares deposited 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 whether the Custodian or the Attorney-in-
Fact shall have received notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized
Attorney-in-Fact, has duly executed and delivered this Agreement, the
Custody Agreement, the Power of Attorney, and the S Corporation Tax
Allocation and Indemnification Agreement by and among the Company and
each of the shareholders of the Company and included as an exhibit to
the Registration Statement (the "Tax Indemnification Agreement"); this
Agreement constitutes a legal, valid and binding obligation of such
Selling Shareholder, all authorizations and consents necessary for the
execution and delivery of this Agreement, the Custody Agreement, the
Power of Attorney, and the Tax Indemnification Agreement on behalf of
such Selling Shareholder and for the sale and delivery of the Shares to
be sold by such Selling Shareholder hereunder have been given, except as
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may be required by the Securities Act or state securities laws; and such
Selling Shareholder has the legal capacity and full right, power and
authority to execute this Agreement, the Custody Agreement, the Power of
Attorney, and the Tax Indemnification Agreement.
(d) The performance of this Agreement, the Custody Agreement,
the Power of Attorney, and the Tax Indemnification Agreement and the
consummation of the transactions contemplated hereby and thereby by each
of the Selling Shareholders will not result in a breach or violation of,
or conflict with, any of the terms or provisions of, or constitute a
default by such Selling Shareholder under, any indenture, mortgage, deed
of trust, trust (constructive or other), loan agreement, lease,
franchise, license or other agreement or instrument to which such
Selling Shareholder or any of his properties is bound, or any statute,
judgment, decree, order, rule or regulation of any court or governmental
agency or body applicable to such Selling Shareholder or any of his
properties.
(e) Such Selling Shareholder has not distributed nor will
distribute any prospectus or other offering material in connection with
the offer and sale of the Shares other than any Preliminary Prospectus
filed with the Commission or the Final Prospectus or other material
permitted by the Securities Act.
(f) To the knowledge of such Selling Shareholder, the
representations and warranties of the Company contained in Section 1 of
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this Agreement are true and correct; such Selling Shareholder has
reviewed and is familiar with the Registration Statement as originally
filed with the Commission and the Preliminary Prospectus. To the
knowledge of such Selling Shareholder, the Preliminary Prospectus does
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
such Selling Shareholder is not prompted to sell the Shares to be sold
by such Selling Shareholder's knowledge of any material non-public
information concerning the Company or any of its subsidiaries.
(g) At the time the Registration Statement becomes effective (i)
such parts of the Registration Statement and any amendments and
supplements thereto as specifically refer to such Selling Shareholder
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 not misleading, and (ii) such parts of the Effective
Prospectus and Final Prospectus as specifically refer to such Selling
Shareholder will not include an 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.
(h) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative or
other governmental body is necessary in connection with the execution
and delivery of this Agreement by such Selling Shareholder, and the
consummation by him of the transactions herein contemplated (other than
as required by the Securities Act, state securities laws and the
NASD).
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(i) Any certificates signed by or on behalf of such Selling
Shareholder as such and delivered to the Representatives or to counsel
for the Representatives shall be deemed a representation and warranty by
such Selling Shareholder to each Underwriter as to the matters covered
thereby.
(j) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder agrees to deliver to you prior to
or at the First Closing Date (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
(k) Such Selling Shareholder will not take, directly or
indirectly, any action designed to cause or result in, or which might
constitute or be expected to constitute, stabilization or manipulation
of the price of the Common Stock.
3. Purchase, Sale and Delivery of the Shares.
-----------------------------------------
(a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions
herein set forth, the Company and the Selling Shareholders, as set forth
on Schedule I, agree to sell to the several Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase at a
purchase price of $__.__ per share, the number of Firm Shares set forth
opposite such Underwriter's name in Schedule II hereto, plus such
-----------
additional number of Firm Shares which such Underwriter may become
obligated to purchase pursuant to Section 9 hereof.
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(b) The Company also grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the sale
of Firm Shares, all or any portion of the Option Shares at the purchase
price per share set forth above. The option granted hereby may be
exercised as to all or any part of the Option Shares at any time (but
only once) within 30 days after the date the Registration Statement
becomes effective. The Underwriters shall not be under any obligation to
purchase any Option Shares prior to the exercise of such option. The
option granted hereby may be exercised by the Underwriters by giving
written notice to the Company setting forth the number of Option Shares
to be purchased and the date and time for delivery of and payment for
such Option Shares and stating that the Option Shares referred to
therein are to be used for the purpose of covering over-allotments in
connection with the distribution and sale of the Firm Shares. If such
notice is given prior to the First Closing Date (as defined herein), the
date set forth therein for such delivery and payment shall not be
earlier than two full business days thereafter or the First Closing
Date, whichever occurs later. If such notice is given on or after the
First Closing Date, the date set forth therein for such delivery and
payment shall not be earlier than three full business days thereafter.
In either event, the date so set forth shall not be more than 15 full
business days after the date of such notice. The date and time set forth
in such notice is herein called the "Option Closing Date." Upon exercise
of the option, the Company shall become obligated to sell to the
Underwriters, and, subject to the terms and conditions herein set forth,
the Underwriters shall become obligated to purchase, for the account of
10
each Underwriter, from the Company, the number of Option Shares
specified in such notice. Option Shares shall be purchased for the
accounts of the Underwriters in proportion to the number of Firm Shares
set forth opposite such Underwriter's name in Schedule II hereto, except
that the respective purchase obligations of each Underwriter shall be
adjusted so that no Underwriter shall be obligated to purchase
fractional Option Shares.
(c) Certificates in definitive form for the Firm Shares which
each Underwriter has agreed to purchase hereunder shall be delivered by
or on behalf of the Company and the Selling Shareholders to the
Underwriters for the account of such Underwriter against payment by such
Underwriter or on its behalf of the purchase price therefor by
certified, official bank check or checks payable in same day funds to
the order of the Company and the custodian for the Selling Shareholders
at the offices of X.X. Xxxxxxxx & Co. ("Bradford"), 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxx 00000, or at such other place as may be agreed upon
by Bradford and the Company, at 10:00 A.M., Nashville time, on the third
full business day after this Agreement becomes effective, or at such
other time not later than the seventh full business day thereafter as
the Representatives and the Company may determine, such time of delivery
against payment being herein referred to as the "First Closing Date."
The First Closing Date and the Option Closing Date are herein
individually referred to as the "Closing Date" and collectively referred
to as the "Closing Dates." Certificates in definitive form for the
Option Shares which each Underwriter shall have agreed to purchase
hereunder shall be similarly delivered by or on behalf of the Company on
the Option Closing Date. The certificates in definitive form for the
Shares to be delivered will be in good delivery form and in such
denominations and registered in such names as Xxxxxxxx xxx request not
less than 48 hours prior to the First Closing Date or the Option Closing
Date, as the case may be. Such certificates will be made available for
checking and packaging at a location designated by Bradford, at least 24
hours prior to the First Closing Date or the Option Closing Date, as the
case may be. It is understood that Xxxxxxxx xxx (but shall not be
obligated to) make payment on behalf of any Underwriter or Underwriters
for the Shares to be purchased by such Underwriter or Underwriters. No
such payment shall relieve such Underwriter or Underwriters from any of
its or their obligations hereunder.
4. Offering by the Underwriters. After the Registration
----------------------------
Statement becomes effective, the several Underwriters propose to offer for sale
to the public the Firm Shares and any Option Shares that may be sold at the
price and upon the terms set forth in the Final Prospectus.
5. Covenants of the Company. The Company covenants and agrees
------------------------
with each of the Underwriters that:
(a) The Company shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rules 424 and 430A of
the Rules and Regulations and notify the Representatives promptly (in
writing, if requested) of all such filings. The Company shall notify the
Representatives promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus or for additional information; the
Company shall prepare and file with the Commission, promptly upon the
Representatives' request, any amendments of or supplements to the
Registration Statement, the Effective Prospectus or the Final Prospectus
which, in the Representatives' opinion, may be necessary or advisable in
connection with the distribution of the Shares; and the Company shall
11
not file any amendment of or supplement to the Registration Statement,
the Effective Prospectus or the Final Prospectus which is not approved
by the Representatives after reasonable notice thereof. The Company
shall advise the Representatives promptly of the issuance by the
Commission or any jurisdiction or other regulatory body of any stop
order or other order suspending the effectiveness of the Registration
Statement, suspending or preventing the use of any Preliminary
Prospectus, the Effective Prospectus or the Final Prospectus or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution of any proceedings for any such
purpose; and the Company shall use its best efforts to prevent the
issuance of any stop order or other such order and, should a stop order
or other such order be issued, to obtain as soon as possible the lifting
thereof.
(b) The Company will take or cause to be taken, all necessary
action and furnish to whomever the Representatives direct such
information as may be reasonably required in qualifying the Shares for
offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will continue such
qualifications in effect for as long as may be reasonably necessary to
complete the distribution of the Shares provided, however, that in
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connection therewith, the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction in which the Company is not currently so subject.
(c) Within the time during which a Final Prospectus relating to
the Shares is required to be delivered under the Securities Act, the
Company shall comply with all requirements imposed upon it by the
Securities Act, as now and hereafter amended, and by the Rules and
Regulations, as from time to time in force, so far as is necessary to
permit the continuance of sales of or dealings in the Shares as
contemplated by the provisions hereof and the Final Prospectus. If
during such period any event occurs as a result of which the Final
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances then
existing, not misleading, or if during such period it is necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Securities Act, the Company shall promptly notify the
Representatives and shall amend the Registration Statement or supplement
the Final Prospectus (at the expense of the Company) so as to correct
such statement or omission or effect such compliance.
(d) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies of the
Registration Statement (four of which shall be signed and shall be
accompanied by all exhibits, including any that are incorporated by
reference, which have not previously been furnished), each Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus, and all
amendments and supplements thereto, including any prospectus or
supplement prepared after the effective date of the Registration
Statement, in each case as soon as available and in such quantities as
the Underwriters may reasonably request.
(e) The Company will (i) deliver to the Representatives at such
office or offices as the Representatives may designate as many copies of
the Preliminary Prospectus and Final Prospectus as the Representatives
may reasonably request, and (ii) for a period of not more than nine
months after the Registration Statement becomes effective, send to the
12
Underwriters as many additional copies of the Final Prospectus and any
supplement thereto as the Representatives may reasonably request.
(f) The Company shall make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the Securities
Act, as promptly as practicable and in any event no later than 45 days
after the end of its fiscal quarter in which the first anniversary of
the effective date of the Registration Statement occurs, an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act covering a period of at least 12 consecutive months beginning after
the effective date of the Registration Statement.
(g) The Company will apply the net proceeds from the sale of the
Shares as set forth under the caption "Use of Proceeds" in the Final
Prospectus and will timely file reports with the Commission in
accordance with Rule 463 of the Securities Act or any successor
provision.
(h) During a period of three years from the effective date of
the Registration Statement, or such longer period as the Representatives
may reasonably request, the Company will furnish to the Representatives
copies of all reports and other communications (financial or other)
furnished by the Company to its shareholders and, as soon as available,
copies of any reports or financial statements furnished or filed by the
Company to or with the Commission or any national securities exchange on
which any class of securities of the Company may be listed.
(i) The Company will, from time to time, after the effective
date of the Registration Statement file with the Commission such reports
as are required by the Securities Act, the Exchange Act and the Rules
and Regulations, and shall also file with state securities commissions
in states where the Shares have been sold by you (as the Representatives
shall have advised the Company in writing) such reports as are required
to be filed by the securities acts and the regulations of those
states.
(j) Except pursuant to this Agreement or with the prior written
consent of the Representatives, for a period of 180 days from the
effective date of the Registration Statement, the Company will not, and
the Company has provided agreements executed by each of its executive
officers and directors and all other beneficial owners of the Company's
outstanding Common Stock, the form of which is attached hereto as
Exhibit A, providing that for a period of 180 days from the effective
date of the Registration Statement, such person or entity will not,
directly or indirectly, offer for sale, sell, grant any options (other
than pursuant to existing employee benefit plans and agreements, other
existing compensation agreements and existing stock options), rights or
warrants with respect to any shares of Common Stock, securities
convertible into Common Stock or any other capital stock of the Company,
or otherwise dispose of any shares of Common Stock or such other
securities or capital stock; provided, however, that the Company may
-------- -------
during such period offer and issue shares of its Common Stock in
connection with acquisitions approved by the Board of Directors,
including but not limited to shares issued under the Company's shelf
registration of 2,000,000 shares of Common Stock as described in the
Effective Prospectus and Final Prospectus.
13
(k) If at any time during the 25 day period after the
Registration Statement is declared 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 for the 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 Final Prospectus), the Company will, after written
notice from you advising it as to the effect set forth above, 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.
(l) Neither the Company nor any of its officers, directors or
affiliates will take, directly or indirectly, any action designed to
cause or result in, or which might constitute or be expected to
constitute, stabilization or manipulation of the price of the Common
Stock.
6. Expenses. Each of the Company and the Selling Shareholders
--------
agrees with the Underwriters that (a) whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is terminated, the Company will pay all fees and expenses incident
to the performance of the obligations of the Company and the Selling
Shareholders hereunder, including, but not limited to, (i) the Commission's
registration fee, (ii) the expenses of printing (or reproduction) and
distributing the Registration Statement (including the financial statements
therein and all amendments and exhibits thereto), each Preliminary Prospectus,
the Effective Prospectus, the Final Prospectus, any amendments or supplements
thereto, and this Agreement and other underwriting documents, including
Underwriters' Questionnaires, Underwriters' Powers of Attorney, Blue Sky
Memoranda, Agreements Among Underwriters and Selected Dealer's Agreement, (iii)
fees and expenses of accountants and counsel for the Company and the Selling
Shareholders, (iv) expenses of registration or qualification of the Shares under
state Blue Sky and securities laws, including the fees and disbursements of
counsel to the Underwriters in connection therewith, (v) filing fees paid or
incurred by the Underwriters and related fees and expenses of counsel to the
Underwriters in connection with filings with the NASD, (vi) expenses of
registration of the outstanding shares of Common Stock on the Nasdaq National
Market, (vii) all travel, lodging and reasonable living expenses incurred by the
Company in connection with marketing, dealer and other meetings attended by the
Company and the Underwriters in marketing the Shares, (viii) the costs and
charges of the Company's transfer agent and registrar and the cost of preparing
the certificates for the Shares, and (ix) all other costs and expenses incident
to the performance of their obligations hereunder not otherwise provided for in
this Section; and (b) all of the out-of-pocket expenses, including counsel fees,
disbursements and expenses, incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this Agreement, will be borne and paid
by the Company if the sale of the Shares provided for herein is not consummated
(i) by reason of the termination of the Agreement by the Company pursuant to
Section 14(a)(i), or (ii) by reason of the termination of the Agreement by the
Representatives pursuant to Section 14(b)(ii) or because of any failure or
refusal on the part of the Company or any Selling Shareholder to comply with the
terms or fulfill any of the conditions of this Agreement.
The provisions of this Section shall not affect any agreement
that the Company and the Selling Shareholders may have for the sharing of such
costs and expenses; provided, however, that the Underwriters may deem the
Company to be the primary obligor with respect to all costs, fees, and expenses
to be paid by the Company and the Selling Shareholders.
14
7. Conditions of the Underwriters' Obligations. The respective
-------------------------------------------
obligations of the Underwriters to purchase and pay for the Firm Shares and
Option Shares shall be subject, in their discretion, to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein as of the date hereof and as of the Closing Date as if made on and as of
the Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company and
the Selling Shareholders of all of their covenants and agreements hereunder and
to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 5:30 P.M.,
Washington, D.C. time, on the day following the date of this Agreement,
or such later time and date as shall have been consented to by the
Representatives and all filings required by Rules 424 and 430A of the
Rules and Regulations shall have been made; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or threatened
or, to the knowledge of the Company or the Underwriters, shall be
contemplated by the Commission; any request of the Commission for
additional information (to be included in the Registration Statement or
the Final Prospectus or otherwise) shall have been complied with to your
satisfaction; and the NASD, upon review of the terms of the public
offering of the Shares, shall not have objected to such offering, such
terms or the Underwriters' participation in the same.
(b) No Underwriter shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective Prospectus
or Final Prospectus, or any amendment or any supplement thereto,
contains an untrue statement of fact which, in your judgment, is
material, or omits to state a fact which, in the Representatives'
judgment, is material and is required to be stated therein or necessary
to make the statements therein not misleading and the Company shall not
have cured such untrue statement of fact or stated a statement of fact
required to be stated therein.
(c) The Representatives shall have received an opinion, dated
the Closing Date, from Nelson, Mullins, Xxxxx & Xxxxxxxxxxx, L.L.P.,
counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of the State of
Georgia, with corporate power and authority to own, lease and operate
its properties and conduct its business as now conducted, and is duly
qualified to do business as a foreign corporation in good standing in
all jurisdictions where failure to so qualify would have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
The Company holds all material licenses, certificates, permits,
franchises and authorizations from governmental authorities that are
material to the conduct of its business in all locations in which such
business is currently being conducted; provided, however, this opinion
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shall be limited to the federal laws of the United States and the
internal laws of the States in which such counsel is licensed to
practice law.
(ii) Each of the Company's subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation, with the corporate power and
authority to own, lease and operate its properties and conduct its
business as now conducted, and is duly qualified to do business as a
foreign corporation in good standing in all jurisdictions where the
15
failure to so qualify would have a material adverse effect upon the
Company and its subsidiaries, taken as a whole. Each subsidiary holds
all material licenses, certificates, permits, franchises and
authorizations from governmental authorities that are material to the
conduct of its business in all locations in which such business is
currently being conducted; provided, however, this opinion shall be
-------- -------
limited to the federal laws of the United States and the internal laws
of the States in which such counsel is licensed to practice law. All of
the issued and outstanding shares of capital stock of the Company's
corporate subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable, and are owned beneficially and of record
by the Company, and, except as described in the Effective Prospectus and
Final Prospectus, free and clear of liens, claims, encumbrances,
security interests, voting trusts or other defects of title
whatsoever.
(iii) As of the dates specified therein, the Company
had authorized and issued capital stock as set forth under the caption
"Capitalization" in the Final Prospectus. All of the outstanding shares
of Common Stock (including the shares to be sold by the Selling
Shareholders) have been duly authorized and are validly issued, fully
paid and nonassessable, and the Shares to be sold by the Company have
been duly authorized, and upon issuance thereof and payment therefor as
provided herein, will be validly issued, fully paid and nonassessable;
none of the issued shares have been issued in violation of or subject to
any preemptive rights provided for by law or by the Company's articles
of incorporation. Except as described in the Effective Prospectus and
Final Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the transfer of,
the Shares pursuant to the Company's articles of incorporation, bylaws
or other governing documents or pursuant to any agreement or other
instrument to which the Company is a party or by which it may be bound.
Neither the filing of the Registration Statement nor the offer or sale
of the Shares as contemplated by this Agreement gives rise to any rights
other than those which have been waived or satisfied, for or relating to
the registration of any shares of Common Stock or any other securities
of the Company. The Underwriters will receive good and marketable title
to the Shares to be issued and delivered by the Company pursuant to this
Agreement, free and clear of all liens, encumbrances, claims, security
interests, restrictions, shareholders agreements and voting trusts
whatsoever. The capital stock of the Company and the Shares conform to
the description thereof contained in the Final Prospectus.
(iv) No consent, approval, authorization or order of
any court or governmental agency or body or to the knowledge of such
counsel, any third party is required for the performance of this
Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained
under the Securities Act and such as may be required by the NASD and
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the several Underwriters, as to which
such counsel need not express an opinion. The performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby will not conflict with or result in a
breach or violation by the Company of any of the terms or provisions of,
or constitute a default by the Company under, any material indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument known to such counsel to which the Company is a party or to
16
which the Company or its properties is subject, the articles of
incorporation or bylaws of the Company, any statute, or any judgment,
decree, order, rule or regulation of any court or governmental agency or
body known to such counsel to be applicable to the Company or any of its
subsidiaries or their properties; provided, however, that such counsel
-------- -------
need not express any opinion under this paragraph as to compliance with
federal securities laws (certain aspects of which are covered elsewhere
in this Agreement) or as to compliance with the Securities or Blue Sky
laws of any jurisdiction.
(v) The Company has full corporate, power and authority
to enter into this Agreement and to issue, sell and deliver the Shares
to be sold by it to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the
Company and constitutes the valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable equitable
principles or by bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer, fraudulent conveyance or similar laws from time to
time in effect affecting the enforcement of creditors' rights.
(vi) To the knowledge of such counsel, except as
described in the Final Prospectus, there is not pending or threatened,
any action, suit, proceeding, inquiry or investigation, to which the
Company is a party, or to which the property of the Company is subject,
before or brought by any court or governmental agency or body, which, if
determined adversely to the Company, could result in any material
adverse change in the business, financial position, net worth or results
of operations, or could materially adversely affect the properties or
assets, of the Company and its subsidiaries, taken as a whole.
(vii) To the knowledge of such counsel, no default
exists, and no event has occurred which with notice or after the lapse
of time to cure or both, would constitute a default, in the due
performance and observance of any term, covenant or condition of any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument known to such counsel to which the Company is a
party or to which it or its properties are subject, or of the articles
of incorporation or bylaws of the Company, which default a event would
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(viii) To the knowledge of such counsel, the Company is
not in violation of any law, ordinance, administrative or governmental
rule or regulation of Georgia or the United States applicable to the
Company or any decree of any court or governmental agency or body having
jurisdiction over the Company which would have a material adverse effect
on the Company.
(ix) The Registration Statement and all post-effective
amendments thereto have become effective under the Securities Act, and,
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or are threatened,
pending or contemplated by the Commission. All filings required by Rules
424 and 430A of the Rules and Regulations have been made; the
Registration Statement, the Effective Prospectus and Final Prospectus,
17
and any amendments or supplements thereto, as of their respective
effective or issue dates, complied as to form in all material respects
with the requirements of the Securities Act and the Rules and
Regulations (other than the financial statements, data and schedules and
the content of the written information furnished to the Company pursuant
to Section 9(g) of this Agreement contained therein, as to which counsel
need not express any opinion); the descriptions in the Registration
Statement, the Effective Prospectus and the Final Prospectus of
statutes, regulations, legal and governmental proceedings, and contracts
and other documents are accurate in all material respects and present
fairly the information required to be stated; and such counsel does not
know of any pending or threatened legal or governmental proceedings,
statutes or regulations required to be described in the Final Prospectus
which are not described as required nor of any contracts or documents of
a character required to be described in the Registration Statement or
the Final Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made
(except that such counsel need express no view as to financial statements,
schedules and other financial information included therein).
(d) The Representatives shall have received an opinion, dated
the Closing Date, of Nelson, Mullins, Xxxxx & Xxxxxxxxxxx, L.L.P.
counsel for the Selling Shareholders, to the effect that:
(i) This Agreement, the Custody Agreement, the Power of
Attorney and the Tax Indemnification Agreement have been duly executed
and delivered by or on behalf of each of the Selling Shareholders and
constitute valid and binding agreements of such Selling Shareholders in
accordance with their terms, except as enforceability may be limited by
applicable equitable principles or by bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in effect
affecting the enforcement of creditors' rights.
(ii) The sale of the Shares to be sold by each Selling
Shareholder hereunder and the compliance by such Selling Shareholder
with all of the provisions of this Agreement, the Custody Agreement, the
Power of Attorney and the Tax Indemnification Agreement, and the
consummation of the transactions herein and therein contemplated, will
not conflict with or result in a breach or violation of any terms or
provisions of, or constitute a default under any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
known to such counsel to which such Selling Shareholder is a party or by
which such Selling Shareholder is bound or to which any of the property
or assets of such Selling Shareholder is subject, or any statute, order,
rule or regulation of any court or governmental agency or body known to
such counsel to be applicable to such Selling Shareholder or the
property of such Selling Shareholder; provided, however, that such
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counsel need not express any opinion under this paragraph as to
compliance with federal securities laws (certain aspects of which are
covered elsewhere in this Agreement) or as to compliance with the
Securities or Blue Sky laws of any jurisdiction.
18
(iii) To the knowledge of such counsel, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the consummation of the transactions contemplated
by this Agreement in connection with the Shares to be sold by each
Selling Shareholder hereunder, except such as have been obtained under
the Securities Act and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of such
Shares by the Underwriters, as to which such counsel need express no
opinion.
(iv) To the knowledge of such counsel, there are no
facts which would cause any Selling Shareholder to lack the legal
capacity and the full right, power and authority to sell, transfer and
deliver such Shares pursuant to this Agreement. Each of the Selling
Shareholders is the registered holder of the Shares as described in the
Registration Statement. Upon delivery of the Shares and payment of the
consideration therefore pursuant to this Agreement, the Underwriters
will acquire all the rights of the Selling Shareholders in such Shares
free of: (A) any adverse claim, any lien in favor of the Company, and
any restrictions of transfer imposed by the Company, assuming the
Underwriters purchase such Shares in good faith and without notice of
any adverse claim (within the meaning of Section 8-302 of the Uniform
Commercial Code as in effect in the State of Georgia (the "UCC")); (B)
any perfected security interest under the UCC; and (C) to the best
knowledge of such counsel, any other security interest, claims, liens,
equities and other encumbrances.
The opinions to be rendered pursuant to paragraphs (c) and (d)
may be limited to federal law, and as to state law matters, to the laws of the
states in which such counsel is admitted to practice.
(e) The Underwriters shall have received an opinion or opinions,
dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel for the
Underwriters, with respect to the Registration Statement and the Final
Prospectus, and such other related matters as the Underwriters may
require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling
them to pass upon such matters.
(f) The Representatives shall have received from Xxxxxx Xxxxxxxx
LLP, a letter dated the date hereof and, at the Closing Date, a second
letter dated the Closing Date, in form and substance satisfactory to the
Representatives, stating that they are independent public accountants
with respect to the Company within the meaning of the Securities Act and
the applicable Rules and Regulations, and to the effect that:
(i) In their opinion, the consolidated financial
statements examined by them and included in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the published Rules
and Regulations and are presented in accordance with generally accepted
accounting principles; and they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of selected financial data and/or condensed financial
statements derived from audited financial statements of the Company;
19
(ii) The unaudited selected financial information
included in the Preliminary Prospectus and the Final Prospectus under
the captions "PROSPECTUS SUMMARY" and "SELECTED CONSOLIDATED FINANCIAL
DATA" for each of the fiscal years ended December 31, 1992, 1993 and
1994 and for the nine months ended September 30, 1996 and September 30,
1997, agrees with the corresponding amounts in the unaudited
consolidated financial statements from which data was derived;
(iii) On the basis of a reading of the latest available
interim consolidated financial statements (unaudited) of the Company, a
reading of the minute books of the Company, inquiries of officials of
the Company responsible for financial and accounting matters and other
specified procedures, all of which have been agreed to by the
Representatives, nothing came to their attention that caused them to
believe that:
(A) the amounts included in the Preliminary
Prospectus and the Final Prospectus under the captions "PROSPECTUS
SUMMARY" and "SELECTED CONSOLIDATED FINANCIAL DATA" for the three fiscal
years ended December 31, 1992, 1993 and 1994 and for the nine months
ended September 30, 1996 and September 30, 1997, do not agree with the
corresponding amounts in the unaudited consolidated financial statements
from which data was derived;
(B) the unaudited pro forma financial
information included in the Registration Statement do not comply as to
form in all material respects with the applicable accounting
requirements of the Securities Act and the Rules and Regulations or that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of the pro forma information.
(C) at a specified date not more than five days
prior to the date of delivery of each respective letter, there was any
change in the capital stock, decline in shareholders' equity or increase
in long-term debt and capital lease obligations of the Company, in each
case as compared with amounts shown in the latest consolidated balance
sheet included in the Final Prospectus, except in each case for changes,
decreases or increases which the Final Prospectus discloses have
occurred or may occur or which are described in such letters; and
(D) for the period from the closing date of the
latest consolidated statements of operations included in the Effective
Prospectus and the Final Prospectus to a specified date not more than
five days prior to the date of delivery of each respective letter, there
were any decreases in total revenues, net income, pro forma net income,
and pro forma net income per share of the Company, in each case as
compared with the corresponding period of the preceding year, except in
each case for decreases which the Final Prospectus discloses have
occurred or may occur or which are described in such letter.
(iv) They have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information specified by you which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Effective Prospectus and the Final Prospectus and have
compared and agreed such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries or to
20
analyses and schedules prepared by the Company from its detailed
accounting records.
In the event that the letters to be delivered referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that the Underwriters shall have determined,
after discussions with officers of the Company responsible for financial and
accounting matters and with Xxxxxx Xxxxxxxx LLP, that such changes, decreases or
increases as are set forth in such letters do not reflect a material adverse
change in the shareholders' equity or long-term debt of the Company as compared
with the amounts shown in the latest consolidated balance sheets of the Company
included in the Final Prospectus, or a material adverse change in total net
revenues or net income of the Company, in each case as compared with the
corresponding period of the prior year.
(g) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and by the Chief Financial Officer of the
Company to the effect that:
(i) the representations and warranties of the Company in
Section 1 of this Agreement are true and correct, as if made at and as
---------
of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been initiated or are pending, or to their knowledge,
threatened under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A of
the Rules and Regulations have been made;
(iv) they have carefully examined the Registration
Statement, the Effective Prospectus and the Final Prospectus, and any
amendments or supplements thereto, and such documents do not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
(v) since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus which has not been so set forth.
(h) The representations and warranties of each Selling
Shareholder in Section 2 of this Agreement shall be true and correct as
---------
of the Closing Date and such Selling Shareholders shall deliver to the
Representatives a certificate to that effect, dated the Closing Date,
signed by each such Selling Shareholder or such Selling Shareholder's
duly appointed Attorney-in-Fact.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Final Prospectus, and
except as stated therein, neither the Company nor any of its
subsidiaries has sustained any material loss or interference with its
business or properties from fire, flood, hurricane, earthquake, accident
or other calamity, whether or not covered by insurance, or from any
21
labor dispute or any court or governmental action, order or decree, or
become a party to or the subject of any litigation which is material to
the Company and its subsidiaries taken as a whole, nor shall there have
been any material adverse change, or any development involving a
prospective material adverse change, in the business, properties, key
personnel, capitalization, net worth, results of operations or condition
(financial or other) of the Company and its subsidiaries taken as a
whole, which loss, interference, litigation or change, in the
Representatives' judgment shall render it unadvisable to commence or
continue the offering of the Shares at the offering price to the public
set forth on the cover page of the Prospectus or to proceed with the
delivery of the Shares.
(j) The Shares shall have been approved for listing upon notice
of issuance on the Nasdaq National Market.
(k) At or prior to the First Closing Date, the Tax
Indemnification Agreement, by and among the Company and each of the
Selling Shareholders, in the form included as an exhibit to the
Registration Statement at the time the Registration Statement was
declared effective by the Commission, or in such other form as shall be
acceptable to the Representatives, shall have been executed and
delivered by the parties thereto.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Representatives and their counsel. The
Company shall furnish to the Representatives such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Representatives shall reasonably request.
The respective obligations of the Underwriters to purchase and
pay for the Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the "Closing Date" shall be deemed to refer to the Option Closing Date, if it
shall be a date other than the Closing Date.
8. Condition of the Company's and the Selling Shareholders'
--------------------------------------------------------
Obligations. The obligations hereunder of the Company and the Selling
-----------
Shareholders are subject to the condition set forth in Section 7(a) hereof.
9. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless you and
each Underwriter, the directors, officers, employees and agents of each
Underwriter, and each person, if any, who controls any Underwriter
within the meaning of the Act or the Exchange Act (such directors,
officers, employees and agents of, and persons who control, any
Underwriters are individually referred to herein as a "controlling
person" and collectively referred to herein as "controlling persons"),
from and against any and all losses, claims, damages, liabilities or
expenses (including reasonable attorneys' fees and reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
or in any application filed under any Blue Sky Law or other document
executed by the Company for that purpose or based upon written
22
information furnished by the Company and filed in any state or other
jurisdiction in order to qualify any or all of the Shares under the
securities laws thereof (any such document, application or information
being hereinafter called a "Blue Sky Application"), or arising out of or
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses arise out of or are based upon an untrue
statement or omission or alleged untrue statement or omission which has
been made in the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or Final Prospectus or any amendment or supplement
thereto or in any Blue Sky Application, or omitted therefrom, in
reliance upon and in conformity with written information furnished to
the Company pursuant to Section 9(g) of this Agreement.
(b) Each of the Selling Shareholders, severally and not jointly,
agrees to indemnify and hold harmless you and each controlling person,
from and against any and all losses, claims, damages, liabilities or
expenses (including reasonable attorneys' fees and reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
or in any Blue Sky Application, or arising out of or based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that a Selling Shareholder shall only be
-------- -------
liable in his capacity as a Selling Shareholder pursuant to the
foregoing portion of this clause 9(b) to the extent that any statements
in or omissions or alleged omissions to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or Final
Prospectus, or any amendment or supplement thereto, are based upon
information furnished to the Company by such Selling Shareholder
specifically for use therein or to the extent that such Selling
Shareholder has failed to bring to the attention of the Underwriters
anything that has come to the attention of such Selling Shareholder (or
solely with respect to Xx. Xxxxxx-Xxxxx and Xx. Xxxxxxxxx, any matter
that either such person knew or should have known in such person's
capacity as a principal shareholder and director of the Company) to
cause such Selling Shareholder to believe that there is any untrue
statement relating to the Company required to be stated therein or
necessary to make the statements therein not misleading; and further
-------
provided, that the Selling Shareholders shall not be liable pursuant to
--------
the foregoing portion of this clause 9(b) to the extent that such
losses, claims, damages, liabilities or expenses arise out of or are
based upon an untrue statement or omission or alleged untrue statement
or omission which has been made in the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or Final Prospectus or
any amendment or supplement thereto or in any Blue Sky Application, or
omitted therefrom, in reliance upon and in conformity with (x) written
information furnished to the Company pursuant to Section 9(g) of this
Agreement, and (y) with respect only to the liability of any Selling
Shareholder under this Section 9, written information furnished to the
---------
Company by and on behalf of another Selling Shareholder for use in
connection with the preparation of the Registration Statement and the
Prospectus; and provided further, that the indemnity obligation of each
-------- -------
Selling Shareholders shall not exceed the net proceeds received by such
Selling Shareholder in the Offering from the sale by such Selling
Shareholder of the Shares set forth in Schedule I.
----------
23
(c) This indemnity agreement is subject to the condition that,
insofar as such losses, claims, damages, liabilities or expenses relate
to any such untrue statement, alleged untrue statement, omission or
alleged omission made in a Preliminary Prospectus that is corrected in
the Final Prospectus, such indemnity agreement shall not inure to the
benefit of any Underwriter from whom the person asserting such losses,
liabilities, claims, damages or expenses purchased the Shares in the
offering (or to the benefit of any controlling person of such
Underwriter), if (i) such Underwriter failed to deliver a copy of the
Prospectus to such person at or prior to the time such delivery is
required by the Act, unless such failure was due to the failure by the
Company to provide copies of the Prospectus to such Underwriter; and
(ii) the delivery of such Prospectus would have constituted a complete
defense to the losses, claims, damages, liabilities or expenses asserted
by such person. Notwithstanding the foregoing provisions of this
Section 9, the parties agree that the indemnification obligations of
---------
each Selling Shareholder under this Section 9, with respect to any
---------
matter that such Selling Shareholder and the Company are both required
to indemnify the Underwriters hereunder, shall be subject to the
determination by you, on behalf of the Underwriters, that in your
reasonable commercial judgment, the Company is or may be unable to
discharge fully its obligations to the Underwriters hereunder. To the
extent the Company is or may be able, in your reasonable commercial
judgment, to discharge the Company's obligations to the Underwriters
with respect to any matter that the Company is required to indemnify the
Underwriters hereunder, the Underwriters shall to such extent, first
seek indemnification from the Company.
(d) Each Underwriter will indemnify and hold harmless the
Selling Shareholders and the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the Securities Act
against any losses, claims, damages or liabilities to which the Company,
the Selling Shareholders, or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto,
or any Blue Sky Application, or arise out of or are based upon the
omission or the alleged omission to state in the Registration Statement,
any Preliminary Prospectus, the Effective Prospectus or Final Prospectus
or any amendment or supplement thereto or any Blue Sky Application 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 reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the last
paragraph on the cover page and in the first and third paragraphs under
the caption "Underwriting" in any Preliminary Prospectus and in the
Effective Prospectus and the Final Prospectus);
(e) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, including
---------
governmental proceedings, such indemnified party will, if a claim in
24
respect thereof is to be made against the indemnifying party under this
Section 9 notify the indemnifying party of the commencement thereof; but
---------
the omission so to notify the indemnifying party will not relieve it
from any liability which it may have to any indemnified party otherwise
than under this Section 9. In case any such action is brought against
---------
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
and after notice from the indemnifying party to such indemnified party
of its election to so assume the defense thereof, the indemnifying party
will not be liable to such indemnified party under this Section 9 for
---------
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs
of investigation except that the indemnified party shall have the right
to employ separate counsel if, in its reasonable judgment, it is
advisable for the indemnified party to be represented by separate
counsel, and in that event the fees and expenses of separate counsel
shall be paid by the indemnifying party, provided, however, that in no
-------- -------
event shall the indemnifying parties be required to pay legal fees and
expenses under this indemnity agreement for more than one firm of
attorneys (in addition to local counsel) for the indemnified parties in
any one legal action or group of related legal actions.
(f) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 9 is for any reason held to be
---------
unavailable to the Underwriters, the Company, or the Selling
Shareholders or is insufficient to hold harmless an indemnified party,
then the Company and the Selling Shareholders shall contribute to the
damages paid by the Underwriters, and the Underwriters shall contribute
to the damages paid by the Company and the Selling Shareholders
provided; however, that 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. In determining the amount of contribution
to which the respective parties are entitled, there shall be considered
the relative benefits received by each party from the offering of the
Shares (taking into account the portion of the proceeds of the offering
realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or
omission, and any other equitable considerations appropriate under the
circumstances. The Company, the Selling Shareholders and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated to
make contribution hereunder which in the aggregate exceeds the
underwriting discount applicable to the Shares purchased by such
Underwriter under this Agreement, less the aggregate amount of any
damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar
claim. The Underwriters' obligations to contribute hereunder are several
in proportion to their respective underwriting obligations and not
joint. For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as such Underwriter, and each
25
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act, shall
have the same rights to contribution as the Company.
(g) The information set forth in the first sentence of the last
paragraph on the outside front cover page of the Preliminary Prospectus,
the Effective Prospectus and the Final Prospectus concerning the terms
of the offering by the Underwriters; the last paragraph on page 2 of the
Preliminary Prospectus, the Effective Prospectus and the Final
Prospectus concerning stabilization and over-allotment by the
Underwriters; the list of names of the Underwriters and the number of
shares of Common Stock to be purchased by each such Underwriter
appearing on page 50 of the Final Prospectus; and the third and eighth
paragraphs of text under the caption "Underwriting" in the Preliminary
Prospectus, the Effective Prospectus and the Final Prospectus concerning
the terms of offering by the Underwriters, constitute all of the
information furnished to the Company by and on behalf of the
Underwriters for use in connection with the preparation of the
Registration Statement, the Preliminary Prospectus, the Effective
Prospectus and the Final Prospectus, as such information is referred to
in this Agreement.
10. Default of Underwriters. If any Underwriter defaults in its
-----------------------
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or less
of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each non-
defaulting Underwriter in Schedule II hereto bears to the total number of Shares
-----------
set forth opposite the names of all the non-defaulting Underwriters), the Shares
which such defaulting Underwriter or Underwriters agreed but failed to purchase.
If any Underwriter so defaults and the total number of Shares with respect to
which such default or defaults occur is more than ten percent of the total
number of Shares to be sold hereunder, and arrangements satisfactory to the
other Underwriters, the Company and the Selling Shareholders for the purchase of
such Shares by other persons (who may include the non-defaulting Underwriters)
are not made within 36 hours after such default, this Agreement, insofar as it
relates to the sale of the Shares, will terminate without liability on the part
of the non-defaulting Underwriters, the Company, or the Selling Shareholders
except for (i) the provisions of Section 9 hereof, and (ii) the expenses to be
---------
paid or reimbursed by the Company pursuant to Section 6. As used in this
---------
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10. Nothing herein shall relieve a defaulting
----------
Underwriter from liability for its default.
11. Default by the Selling Shareholders. If the Selling
-----------------------------------
Shareholders shall fail to sell and deliver the number of Firm Shares that the
Selling Shareholders are obligated to sell, the Representatives may, at their
option, by notice to the Company, either (a) require the Company to sell and
deliver such number of shares of Common Stock as to which the Selling
Shareholders have defaulted, or (b) elect to purchase the Firm Shares and the
Option Shares that the Company and the non-defaulting Selling Shareholders have
agreed to sell pursuant to this Agreement.
In the event of a default under this Section that does not
result in the termination of this Agreement, either the Representatives or the
Company shall have the right to postpone the First Closing Date or Option
Closing Date for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
26
documents or arrangements. No action taken pursuant to this Section shall
relieve the Company or the Selling Shareholder so defaulting from liability, if
any, in respect of such default.
12. Survival Clause. The respective representations, warranties,
---------------
agreements, covenants, indemnities and other statements of the Selling
Shareholders and the Company, its officers and the Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Company, any of its officers or
directors, any Underwriter or any controlling person, (ii) any termination of
this Agreement and (iii) delivery of and payment for the Shares.
13. Effective Date. This Agreement shall become effective at
--------------
whichever of the following times shall first occur: (i) at 11:30 A.M.,
Washington, D.C. time, on the next full business day following the date on which
the Registration Statement becomes effective or (ii) at such time after the
Registration Statement has become effective as the Representatives shall release
the Firm Shares for sale to the public; provided, however, that the provisions
of Sections 7, 9, 12 and 13 hereof shall at all times be effective. For purposes
---------- - -- --
of this Section 13, the Firm Shares shall be deemed to have been so released
----------
upon the release by the Representatives for publication, at any time after the
Registration Statement has become effective, of any newspaper advertisement
relating to the Firm Shares or upon the release by the Representatives of
telegrams offering the Firm Shares for sale to securities dealers, whichever may
occur first.
14. Termination.
-----------
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives (i) at any
time before it becomes effective in accordance with Section 13 hereof or
----------
(ii) in the event that the condition set forth in Section 8 shall not
have been satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 13 hereof; (ii) in the event that at or prior to
----------
the First Closing Date the Company or any Selling Shareholder shall have
failed, refused or been unable to perform any agreement on the part of
the Company or such Selling Shareholder to be performed hereunder or any
other condition to the obligations of the Underwriters hereunder is not
fulfilled; (iii) if at or prior to the Closing Date trading in
securities on the New York Stock Exchange, the American Stock Exchange
or the over-the-counter market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on
either of such Exchanges or such market, or a banking moratorium shall
have been declared by Federal or state authorities; (iv) if at or prior
to the Closing Date trading in securities of the Company shall have been
suspended; or (v) if there shall have been such a material change in
general economic, political or financial conditions or if the effect of
international conditions on the financial markets in the United States
shall be such as, in your reasonable judgment, makes it inadvisable to
commence or continue the offering of the Shares at the offering price to
the public set forth on the cover page of the Prospectus or to proceed
with the delivery of the Shares.
(c) Termination of this Agreement pursuant to this Section 13
----------
shall be without liability of any party to any other party other than as
provided in Sections 6 and 9 hereof.
---------- -
27
15. Notices. All communications hereunder shall be in writing
-------
and, if sent to any of the Underwriters, shall be mailed or delivered or
telegraphed and confirmed in writing to the Representatives in care of X.X.
Xxxxxxxx & Co., X.X. Xxxxxxxx Financial Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, XX, with a copy to Xxxx X. Xxxxx,
Esq., Xxxxxx & Xxxxxxx, 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000;
or if sent to the Company or the Selling Shareholders shall be mailed, delivered
or telegraphed and confirmed in writing to the Company at 0000 Xxxxxxxxxxxx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000 Attention: Xxxxxxx Xxxx, Xx.,
with a copy to Xxxxx X. Xxxxx, Esq., Nelson, Mullins, Xxxxx & Scarborough,
L.L.P., First Union Plaza, Suite 1400, 000 Xxxxxxxxx Xx., X.X. Xxxxxxx, Xxxxxxx
00000.
16. Miscellaneous. This Agreement shall inure to the benefit of
-------------
and be binding upon the several Underwriters, the Company, the Selling
Shareholders and their respective successors and legal representatives. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Company, the
Selling Shareholders and the several Underwriters and for the benefit of no
other person except that (i) the representations and warranties of the Company
and the Selling Shareholders contained in this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act, and (ii) the indemnities by the
Underwriters shall also be for the benefit of the directors of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act. No purchaser of Shares from any Underwriter will be deemed a
successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. You hereby represent and warrant to the Company and the Selling
Shareholders that you have authority to act hereunder on behalf of the several
Underwriters, and any action hereunder taken by you will be binding upon all the
Underwriters.
28
If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between the Company, each of the Selling Shareholders and each of the several
Underwriters.
Very truly yours,
ACSYS, INC.
By:
------------------------------------------
Xxxxxxx Xxxx, Xx., Chief Executive Officer
SELLING SHAREHOLDERS
By:
------------------------------------------
Attorney-in-Fact for each of the Selling
Shareholders listed in Schedule I hereto
Confirmed and accepted as of the
date first above written.
X.X. XXXXXXXX & CO.
XXXXXX XXXXXXXXXX XXXXX INC.
For themselves and as Representatives
of the several Underwriters
By:
------------------------
Title:
29
SCHEDULE I
SELLING SHAREHOLDERS
Number of Firm
Name Shares to be Sold
------------------------------- ---------------------
Selling Shareholders
Xxxx X. Xxxxxxxxx 90,000
Xxxx Xxxxxx-Xxxxx 20,000
Xxxxxxxxx Xxxxxxx 50,000
Xxxxx X. Xxxx 100,000
Xxxxxx Xxxxxx 15,000
Xxxxxx Xxxxxx 25,000
Xxxxxxx X. Xxxxxxxx 20,000
TOTAL 320,000
=======
30
SCHEDULE II
UNDERWRITERS
Number of Firm
Underwriter Shares to Be Purchased
----------------------------------- ----------------------
X.X. Xxxxxxxx & Co.
Xxxxxx Xxxxxxxxxx Xxxxx Inc.
TOTAL 2,750,000
=========
31
EXHIBIT A
(see attached)
32
