1
EXHIBIT 1.1
2,500,000 SHARES
XXXXXXXXXX.XXX, INC.
COMMON STOCK
------------------------------
UNDERWRITING AGREEMENT
------------------------------
WHEAT FIRST SECURITIES, INC.
X.X. XXXXXXXX & CO.
INTERSTATE/XXXXXXX LANE CORPORATION
As Representatives of the Several
Underwriters Named in Schedule I
hereto
c/o Wheat First Securities, Inc.
Riverfront Plaza
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000 , 1998
---------------
Dear Sirs:
XxxxXxxxxx.XXX, Inc., a Georgia corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
underwriters named in Schedule I hereto (the "Underwriters"), for whom you are
acting as the representatives (the "Representatives"), an aggregate of 2,500,000
shares of Common Stock, $0.01 par value per share ("Common Stock"), of the
Company (the "Firm Shares") and, at the election of the Underwriters, up to an
aggregate of 375,000 additional shares of Common Stock (the "Optional Shares")
solely to cover over-allotments, if any. The Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof are
collectively called the "Shares."
2
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to,
and agrees with, the Underwriters that:
(i) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form
S-1 (File No. 333-59389) under the Securities Act of 1933, as amended
(the "Act"), and as a part thereof a preliminary prospectus, in respect
of the Shares, and has filed one or more amendments thereto. Such
registration statement, as amended, has been declared effective by the
Commission, and no stop order suspending the effectiveness of such
registration statement has been issued, and no proceeding for that
purpose has been instituted or threatened by the Commission. 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, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Act,
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 Act at the time when it
became effective, is herein referred to as the "Registration
Statement." The form of final prospectus that discloses all the
information that was omitted from the prospectus contained in the
Registration Statement on the effective date pursuant to Rule 430A of
the rules and regulations of the Commission under the Act and in the
form filed pursuant to Rule 424(b) under the Act is herein referred to
as the "Prospectus." The prospectus included in the Registration
Statement, and each prospectus included in any amendment thereto, prior
to the effective date of the Registration Statement, is referred to
herein as a "Preliminary Prospectus."
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued or is threatened, to the
Company's knowledge, by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters through you expressly for use therein therein.
(iii) The Registration Statement conforms, and the
Prospectus and any amendments or supplements thereto will conform, in
all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein (in
the light of the circumstances under which they were made, in the case
of the Prospectus and any amendments or supplements thereto) not
misleading;
-2-
3
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters through you expressly for use therein. The Company
acknowledges that the only information relating to the Underwriters
furnished in writing to the Company by the Representatives specifically
for inclusion in the Registration Statement, any Preliminary Prospectus
and the Prospectus is the information in the last paragraph on the
cover page, the paragraph relating to stabilization on the inside front
cover page and the first, second, third, seventh, eighth and ninth
paragraphs under the heading "Underwriting."
(iv) Neither the Company nor any of its subsidiaries
included on Exhibit 21.1 to the Registration Statement (the
"Subsidiaries") has sustained since the date of the latest audited
financial statements included in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
outstanding capital stock or long-term debt of the Company or any of
the Subsidiaries, or any issuance of options, warrants or rights to
purchase capital stock of the Company, or any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the general affairs, management, business, condition
(financial or otherwise) or results of operations of the Company and
the Subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(v) The Company and each of its Subsidiaries have good
and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and the Subsidiaries; and any real
property and buildings held under lease by the Company or any of the
Subsidiaries are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company or such Subsidiaries.
(vi) The Company and each of its Subsidiaries have been
duly incorporated or organized and are validly existing as a
corporation or other entity in good standing under the laws of their
respective jurisdictions of incorporation or organization, with
corporate or other organizational power and authority to own or lease
their respective properties and conduct their respective businesses as
described in the Prospectus, and each has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not result
in a material adverse effect on the business, condition (financial or
otherwise) or results of operations of the Company or the Company and
the Subsidiaries taken as a whole.
-3-
4
(vii) The Company has authorized and issued capital stock
as set forth in the Prospectus under the heading "Capitalization;" all
of the issued shares of capital stock of the Company have been duly and
validly authorized and issued, are fully paid and nonassessable and
conform to the description of the capital stock of the Company
contained in the Prospectus; there are no preemptive or other similar
rights to subscribe for or to purchase any securities of the Company;
except as described in the Prospectus, the Company has issued no
warrants, options or other rights to purchase any securities of the
Company; and except as disclosed in the Prospectus, neither the filing
of the Registration Statement nor the offering or sale of the Shares as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any securities of the Company with respect to
such filing, offering or sale. All offers and sales of securities of
the Company and its Subsidiaries have been at all relevant times duly
registered under or exempt from the registration requirements of the
Act and were duly registered or exempt from the registration
requirements of all applicable state securities or Blue Sky laws.
(viii) All of the issued and outstanding shares of, or
membership or other ownership interests in, capital stock of each of
the Subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable; and except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of each of the
Subsidiaries are owned directly or indirectly, through a wholly-owned
subsidiary, by the Company free and clear of any perfected security
interest and any other security interests, claims, liens or
encumbrances.
(ix) The Shares have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein,
will be duly and validly issued and fully paid and nonassessable and
will conform to the description of the Shares contained in the
Prospectus as amended or supplemented.
(x) The Company has full legal right, power and authority
to enter into this Agreement and to issue, sell and deliver the Shares
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. The issue and sale of the Shares
by the Company and the performance of this Agreement and the
consummation by the Company of the other transactions herein
contemplated will not conflict with or result in a breach or violation
of any terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of the Subsidiaries is a
party or is otherwise bound or to which any of the property or assets
of the Company or any of the Subsidiaries is subject. To the knowledge
of the Company and each Subsidiary, as of the date of this Agreement,
no other party under any contract or other instrument to which it is a
party is in material
-4-
5
default thereunder. The issue and sale of the shares by the Company and
the performance of this Agreement will not result in any violation of
the provisions of the articles of incorporation or bylaws of the
Company (each as amended to date the "Articles" and "Bylaws,"
respectively) or the articles of incorporation, bylaws or other
organizational documents of any of the Subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries or
any of its or their properties or assets; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under
the Act and under state securities or Blue Sky laws in connection with
the purchase and distribution of the Shares by the Underwriters and the
clearance of such offering with the National Association of Securities
Dealers, Inc. (the "NASD").
(xi) There are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or
of which any property or assets of the Company or any of its
Subsidiaries is the subject, which, if determined adversely to the
Company or any of the Subsidiaries, would individually or in the
aggregate, have a material adverse effect on the business, condition
(financial or otherwise), or results of operations of the Company or of
the Company and the Subsidiaries taken as a whole and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or by others.
(xii) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company and the Subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder.
(xiii) All employee benefit plans (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) established, maintained or contributed to by the Company or
any of the Subsidiaries comply in all material respects with the
requirements of ERISA and no employee pension benefit plan (as defined
in Section 3(2) of ERISA) has incurred or assumed an "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or has
incurred or assumed any material liability (other than for the payment
of premiums) to the Pension Benefit Guaranty Corporation.
(xiv) The consolidated financial statements of the Company
and the Subsidiaries, together with the related notes, as set forth in
the Registration Statement present fairly the consolidated financial
position and the results of operations of the Company and the
Subsidiaries at the indicated dates and for the indicated periods; such
financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied throughout the
periods presented except as noted in the notes thereon, and all
adjustments necessary for a fair presentation of results for such
periods have been made. The financial and statistical information
included in
-5-
6
the Prospectus under the headings "Summary Financial and Operating
Data," "Use of Proceeds," "Capitalization," "Selected Financial and
Operating Data," "Management's Discussion and Analysis of Financial
Condition and Results of Operations," "Business," and "Management,"
presents fairly the information shown therein and has been compiled on
a basis consistent with the financial statements presented therein.
(xv) Neither the Company nor any of the Subsidiaries is in
violation of any international, federal, state or local law,
regulation, or treaty relating to the storage, handling,
transportation, treatment or disposal of hazardous substances (as
defined in 42 U.S.C. Section 9601) or hazardous materials (as defined
by any international, federal, state or local law or regulation) or
other waste products, which violation is reasonably likely to result in
a material adverse effect on the financial condition, business
operations or properties of the Company and the Subsidiaries taken as a
whole, and the Company and each of the Subsidiaries have received all
material permits, licenses or other approvals as may be required of
them under applicable international, federal, state or local
environmental laws and regulations to conduct their business as
described in the Prospectus; and the Company and each of the
Subsidiaries are in compliance in all material respects with the terms
and conditions of any such permit, license or approval; neither the
Company nor any of the Subsidiaries has received any notices or claims
that it is a responsible party or a potentially responsible party in
connection with any claim or notice asserted pursuant to 42 U.S.C.
Section 9601 et seq. or any state superfund law; and the disposal by
the Company or any Subsidiary of any of the Company's and each
Subsidiary's hazardous substances, hazardous materials and other waste
products, if any, has been lawful.
(xvi) No relationship, direct or indirect, exists between
or among the Company or any of the Subsidiaries, on the one hand, and
the directors, officers, shareholders, customers or suppliers of the
Company or any of the Subsidiaries on the other hand, that is required
by the Act or by the rules and regulations under the Act to be
described in the Registration Statement and the Prospectus.
(xvii) The Company and each of the Subsidiaries have filed all
federal, state, local and foreign income, franchise and excise tax
returns which have been required to be filed (or have received an
extension with respect thereto), and have paid or made adequate
reserves for, all taxes indicated by said returns and all assessments
received by them to the extent that such taxes have become due and are
not being contested in good faith; to the best knowledge of the Company
there is no tax deficiency that has been or might be asserted against
the Company that would have a material adverse effect on the business,
properties, financial condition, or results of operations of the
Company and the Subsidiaries taken as a whole.
(xviii) Neither the Company nor any of the Subsidiaries has
taken and none of such entities will take, directly or indirectly, any
action that is designed to or that has constituted or that might
reasonably be expected to cause or result in stabilization or
-6-
7
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares;
(xix) The Shares have been approved for listing, subject to
notice of issuance, on the Nasdaq Stock Market's National Market (the
"Nasdaq National Market").
(xx) The Company operates its business in each
jurisdiction in which it is doing business in conformity with all
applicable statutes, ordinances, decrees, orders, rules and regulations
of all applicable governmental bodies, including federal, state and
local governing bodies in the United States and all foreign governments
in areas outside of the United States. The Company and each of the
Subsidiaries holds and are operating in compliance, in all material
respects, with all franchises, grants, authorizations, licenses,
permits, easements, consents, certificates and orders of any
governmental or self-regulatory body required for the conduct of their
respective businesses as presently being conducted ("licenses"), and
the Company, and each of the Subsidiaries are in compliance, in all
material respects, with all laws, regulations, orders and decrees
applicable to them except where the failure to be in compliance would
not have a material adverse effect on the Company and the Subsidiaries,
taken as a whole.
(xxi) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary, to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; and (iii) assets are properly accounted for and safeguarded
against errors or loss from unauthorized use. Neither the Company nor
any director, officer, agent, employee or other person acting, with the
Company's knowledge, on behalf of the Company has, directly or
indirectly, used any funds of the Company for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity, made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from funds of the Company, violated any provision of the
Foreign Corrupt Practices Act of 1977, as amended, or made any bribe,
rebate, payoff, influence payment, kickback or other payment, or
received or retained any funds, in violation of any law, rule or
regulation.
(xxii) The Company has filed with or submitted to the
applicable regulatory authorities each statement, report, information
or form required by any applicable law, regulation or order; all such
filings or submissions were in 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. The Company maintains in full force and effect all
licenses and permits necessary for the conduct of its business and has
not received any notification that any revocation or limitation thereof
is threatened or pending. To the knowledge of the Company, there is not
pending any change under any law, regulation, license or permit which
could have a material adverse effect on the business, condition
(financial or otherwise) or results of operations of the
-7-
8
Company. The Company has not received any notice of violation of or
been threatened with a charge of violating and, to the knowledge of the
Company, is not under investigation with respect to a possible
violation of any provision of any law, regulation or order.
(xxiii) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required. All documents or contracts
required to be filed as exhibits to the Registration Statement to which
the Company or any Subsidiary is a party have been filed as exhibits to
the Registration Statement and have been duly authorized, executed and
delivered by the Company or such Subsidiary, constitute valid and
binding agreements of the Company or such Subsidiary and are
enforceable against the Company or such Subsidiary in accordance with
the terms thereof, except where the lack of authorization, execution,
delivery or enforceability of any such contract would not materially
and adversely affect the Company, the Subsidiaries or their business,
condition (financial or otherwise) or results of operations or prevent
or materially hinder the consummation of this Agreement.
(xxiv) No labor dispute exists with the Company's employees
or is imminent which could have a material adverse effect on the
business, (financial or otherwise) condition or results of operations
of the Company. The Company is not aware of any existing or imminent
labor disturbance by its employees which could be expected to have a
material adverse effect on the business, condition (financial or
otherwise) or results of operations of the Company.
(xxvii) 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, as amended (the
"1940 Act");
(xxviii) The Company has not violated any applicable laws
relating to immigration and has employed only individuals authorized to
work in the United States and has never been the subject of any
inspection or investigation relating to its compliance with or
violation of the Immigration Reform and Control Act of 1986 and all
Regulations promulgated thereunder.
(xxix) Other than as set forth in the Prospectus, the
Company's internal systems and software and the network connections it
maintains are adequately programmed to address the Year 2000 issue.
(xxx) The Company has not received any communication
(written or oral) relating to the termination or modification or
threatened termination or modification of any of the agreements named
or referred to in the Prospectus, nor has it received any communication
(written or oral) relating to any determination not to renew or extend
any
-8-
9
such agreement at the end of the current term of any such agreement,
except where any such termination, modification, non-renewal or
non-extension would not have a material adverse effect on the business,
condition (financial or otherwise) or results of operations of the
Company.
(xxxi) Any certificate signed by any officer of the Company
and delivered to the Representatives or counsel for the Underwriters
shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
(xxv) The filing of the Registration Statement has been
duly authorized by the Board of Directors of the Company. This
Agreement has been duly authorized, executed and delivered by the
Company.
(xxvi) There are no outstanding loans, advances (except
normal advances for business expenses in the ordinary course of
business) or guarantees of indebtedness by the Company to or for the
benefit of any of the officers or directors of the Company or any of
the members of the families of any of them, except as disclosed in the
Registration Statement and the Prospectus.
(xxvii) The Company and the Subsidiaries own or possess
adequate rights to use all patents, patent rights, inventions, trade
secrets, know-how, trademarks, service marks, trade names and
copyrights which are necessary to conduct their businesses as described
in the Registration Statement and Prospectus; neither the Company nor
the Subsidiaries have received any notice of, and have no knowledge of,
any infringement of or conflict with asserted rights of the Company of
the Subsidiaries by others with respect to any patent, patent rights,
inventions, trade secrets, know-how, trademarks, service marks, trade
names of copyrights, and the Company and the Subsidiaries have not
received any notice of, and have no knowledge of, any infringement of
or conflict with asserted rights of others with respect to any patent,
patent rights, inventions, trade secrets, know-how, trademarks, service
marks, trade names or copyrights owned or used by the Company or the
Subsidiaries, which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, could have a material adverse
effect on the business, condition (financial or otherwise) or results
of operations of the Company and the Subsidiaries taken as a whole.
(xxviii)The Company and the Subsidiaries maintain insurance
with insurers of recognized financial responsibility against such
losses and risks and in such amounts as management believes it
appropriate to the business of the Company and all such policies are in
full force and effect. The Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the business, condition
(financial or otherwise) or results of operations of the Company and
its Subsidiaries taken as a whole.
-9-
10
(xxix) The Company has not distributed and will not
distribute prior to the later of (i) the First Delivery Date or the
Second Delivery Date, as the case may be, or (ii) completion of the
distribution of the Shares, any offering material in connection with
the offering and sale of the Shares other than any preliminary
prospectuses, the Prospectus, the Registration Statement and other
materials, if any, permitted by the Act.
2. PURCHASE AND SALE.
Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price of
$_______ per share, the number of Firm Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase the Optional Shares as provided below, the
Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the purchase
price set forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional securities) determined by
multiplying such number of Optional Shares by a fraction, the numerator of which
is the maximum number of Optional Shares that such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I
hereto, and the denominator of which is the maximum number of the Optional
Shares that all of the Underwriters are entitled to purchase.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 375,000 Optional Shares, at the purchase price per share
set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Shares. Any Optional Shares purchased by
the Underwriters shall be purchased from the Company. Any such election to
purchase Optional Shares may be exercised no more than once by written notice
from you to the Company, given within a period of 30 days after the date of this
Agreement, setting forth the aggregate amount of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Delivery Date (as defined in Section
4 hereof) or, unless you otherwise agree in writing, earlier than two or later
than 10 business days after the date of such notice.
3. OFFERING BY THE UNDERWRITERS.
Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. DELIVERY AND PAYMENT.
Certificates in definitive form for the Shares to be purchased by each
Underwriter hereunder, and in such denominations and registered in such names as
Wheat First Securities, Inc. may request upon at least two business days prior
notice to the Company shall be delivered by or on behalf of the Company to you
for the account of each Underwriter, against payment by
-10-
11
such Underwriter or on its behalf of the purchase price therefor. Payment of the
purchase price for the Shares shall be made by wire transfer of immediately
available funds, all at the offices of Wheat First Securities, Inc., Riverfront
Plaza, 000 X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000. The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 10:00 a.m.,
Richmond, Virginia time, on ___________, 1998 or at such other time and date as
you and the Company may agree upon in writing, and, with respect to the Optional
Shares, 10:00 a.m., Richmond, Virginia time, on the date specified by you in the
written notice given by you (consistent with Section 2 hereof) of the
Underwriters' election to purchase such Optional Shares, or at such other time
and date as you and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "First Delivery Date," such
time and date for delivery of the Optional Shares, if not the First Delivery
Date, is herein called the "Second Delivery Date," and each such time and date
for delivery is herein called a "Delivery Date." Such certificates will be made
available for checking and packaging at least 24 hours prior to each Delivery
Date at the offices of Wheat First Securities, Inc., Riverfront Plaza, 000 X.
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 or such other location designated by the
Underwriters to the Company.
5. AGREEMENTS OF THE COMPANY.
The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and
to file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as
may be required by Rule 430A under the Act; to make no amendment or supplement
to the Registration Statement or Prospectus prior to any Delivery Date which
shall be reasonably disapproved by you promptly after reasonable notice thereof;
to advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to file promptly all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and for so long as the
delivery of a Prospectus is required in connection with the offering or sale of
the Shares; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal.
(b) Promptly from time to time to take such actions as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings
-11-
12
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in 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.
(c) To furnish the Underwriters with copies of the Registration
Statement and the Prospectus in such quantities as you may from time to time
reasonably request during such period following the date hereof that a
prospectus is required to be delivered in connection with offers or sales of
Shares, and, if the delivery of a prospectus is required during this period and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus to comply with the Act, to notify you and upon your request to file
such document and to prepare and furnish without charge to you and to any dealer
in securities as many copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance.
(d) To make generally available to its shareholders and to deliver to
you, an earnings statement of the Company, conforming with the requirements of
Section 11(a) of the Act and Rule 158 under the Act, covering a period of at
least 12 months beginning after the effective date of the Registration
Statement;
(e) For a period of 180 days from the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of any securities of the
Company (other than the Shares or pursuant to employee stock option plans or
pursuant to options, warrants or rights outstanding on the date of this
Agreement or pursuant to bona fide gifts to persons who agree in writing with
the donor to be bound by this restriction), without your prior written consent.
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission, the Nasdaq Stock Market or
any national securities exchange on which any class of securities of the Company
is listed; and (ii) such additional information concerning the business and
financial condition of the Company as you may from time to time reasonably
request.
(g) To apply the net proceeds from the sale of the Shares for the
purposes set forth in the Prospectus and report the use of such proceeds in
accordance with Rule 463 under the Act.
(h) The Company will comply with all of the provisions of any
undertakings contained in the Registration Statement. 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 Act, the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations of
the Commission thereunder, and shall also file with state securities commissions
in states where the Shares have been sold by you (as you shall have advised us
in writing) any such reports as are required to be filed by the securities acts
and the regulations of those states.
-12-
13
(i) 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 your opinion, the
market price for the Common Stock has been or is likely to be materially
affected (regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after written
notice from you advising it to do so, prepare, consult with you concerning the
substance of, and disseminate a press release or other public statement,
reasonably satisfactory to you, responding to or commenting on such rumor,
publication or event.
(j) 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.
(k) The Company will cause the Shares to be listed on the Nasdaq Stock
Market's National Market (or such other trading market as shall be approved by
you) at each Delivery Date and will use its best efforts to cause the Shares to
be so listed for at least three years from the date hereof.
(l) The Company will not invest or otherwise use the proceeds received
by the Company from its sale of the Shares in such a manner as would require the
Company to register as an investment company under the 1940 Act.
(m) The Company will maintain a transfer agent and, if necessary under
the laws of the State of Georgia, a registrar for the Common Stock.
(n) Prior to the Closing Date (and, if applicable, the Option Closing
Date), the Company will furnish to you, as soon as they have been prepared,
copies of any unaudited interim consolidated financial statements of the Company
and its Subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.
(o) The Company will file a registration statement on Form 8-A with the
Commission providing for the registration of the Shares under the Exchange Act.
6. PAYMENT OF EXPENSES.
The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or reproducing any Agreement Among
Underwriters, Selected Dealers
-13-
14
Agreement, this Agreement, Blue Sky Memoranda and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection
therewith; (iv) filing fees paid or incurred by the Underwriters and related
reasonable fees and expenses of counsel to the Underwriters in connection with
filings with the NASD; (v) the cost of preparing stock certificates; (vi) the
costs or expenses of any transfer agent or registrar; (vii) any expenses for
travel, lodging and meals 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 quotation of the Shares on the Nasdaq National
Market and (ix) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. It is understood, however, that except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Shares by them, and any advertising expenses connected with
any offers they may make.
7. CONDITIONS TO OBLIGATIONS OF UNDERWRITERS.
The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Delivery Date, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of such Delivery Date, true and correct, and the
condition that the Company shall have performed all of its respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 4:00 p.m., Washington, D.C.
time, on 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 Rule 424,
Rule 430A, Rule 434 or Rule 462(b), if applicable, of the rules and regulations
of the Commission shall have been made; no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or, to the knowledge of
the Company, threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction and no Underwriter shall have advised the Company that
the Registration Statement or any amendment thereto contains an untrue statement
of fact which, in your judgment, is material or omits to state a fact which, in
your judgment, is material and is required to be stated therein or necessary to
make the statements therein not misleading, or that any Preliminary Prospectus,
the Prospectus or any supplement thereto contains an untrue statement of fact
which, in your judgment, is material, or omits to state a fact which, in your
judgment, is material and is 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;
(b) Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P., counsel for the
Underwriters, shall have furnished to you such opinion or opinions, dated such
Delivery Date, with respect to the incorporation of the Company, the validity of
the Shares being issued at such Delivery Date, the Registration Statement, the
Prospectus, and other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
-14-
15
(c) Xxxxxx & Bird LLP, counsel for the Company, shall have furnished to
you their written opinion, dated such Delivery Date, in form and substance
reasonably satisfactory to you, to the effect set forth in Exhibit A attached
hereto.
(d) At 10:00 a.m., Atlanta, Georgia time, on the date of this Agreement
and the effective date of the most recently filed post-effective amendment to
the Registration Statement and also at each Delivery Date, Xxxxxx Xxxxxxxx LLP
shall have furnished to you a letter or letters, dated the respective date of
delivery thereof, in form and substance reasonably satisfactory to you,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information relating to the Company and its
Subsidiaries contained in the Registration Statement and the Prospectus;
(e) (i) Neither the Company nor any of the Subsidiaries shall have
sustained, since the date of the latest audited financial statements included in
the Prospectus, any loss or interference with their business taken as a whole
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus, and (ii)
since the respective dates as of which information is given in the Prospectus
there shall not have been any change in the outstanding capital stock or
long-term debt of the Company or any of the Subsidiaries or any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company and the Subsidiaries taken as a whole otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii) is in your reasonable judgment so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered at such Delivery Date on the terms
and in the manner contemplated by the Prospectus;
(f) On or after the date hereof there shall not have occurred any of
the following: (i) trading in securities of the Company shall have been
suspended (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or the National Association of
Securities Dealers, Inc. Automated Quotation System; (iii) a general moratorium
on commercial banking activities in New York, Virginia or Georgia declared by
either federal or New York, Virginia or Georgia authorities; (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if any such event specified in
this clause (iv) would have such a materially adverse effect, in your reasonable
judgment, as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares being delivered at such Delivery Date on
the terms and in the manner contemplated in the Prospectus; or (v) such a
material adverse change in general economic, political, financial or
international conditions affecting financial markets in the United States having
a material adverse impact on trading prices of securities in general, as, in
your reasonable judgment, makes it inadvisable to proceed with the payment for
and delivery of the Shares;
-15-
16
(g) The Company shall have furnished to you copies of agreements
between the Company and the directors, executive officers and certain
shareholders of the Company specified by you, in form and content reasonably
satisfactory to you, pursuant to which such persons agree that for a period
beginning on the date of the Prospectus and ending 180 days thereafter, they
will not, except pursuant to this Agreement, directly or indirectly (i) make,
agree to or cause any offer, sale (including short sale), loan, pledge, or other
disposition of, or grant any options, rights or warrants to purchase with
respect to, or otherwise transfer or reduce any risk of ownership of, directly
or indirectly, any shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock or other capital stock of the
Company or (ii) enter into any swap or other arrangement that transfers all or a
portion of the economic consequences associated with the ownership of the Common
Stock (regardless of whether any of the transactions described in clause (i) or
(ii) is to be settled by the delivery of Common Stock, or such other securities,
in cash or otherwise), or make any demand for or exercise any right with respect
to the registration of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, without the prior written consent
of Wheat First Securities, Inc.; provided, however, that nothing contained
therein shall prohibit (x) the exercise of stock options or other purchases of
Common Stock under stock option plans or other incentive compensation
arrangements for employees or directors previously approved by the Company's
Board of Directors or (y) the gift, pledge or assignment of any such securities
without the prior consent of Wheat First Securities, Inc. if the donee, pledgee
or assignee agrees, in writing delivered to Wheat First Securities, Inc. within
five days after such gift, pledge or assignment, to be bound by the terms of
such agreement;
(h) Each of the representations and warranties of the Company contained
herein shall be true and correct in all material respects at appropriate
Delivery Date, as if made at such Delivery Date, and all covenants and
agreements herein contained to be performed on the part of the Company and all
conditions herein contained to be fulfilled or compiled with by the Company at
or prior to the appropriate Delivery Date shall have been duly performed,
fulfilled or complied with.
(h) The Company shall have furnished or caused to be furnished to you
at such Delivery Date certificates of officers of the Company reasonably
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Delivery Date, as to the performance by the
Company of all of its respective obligations hereunder to be performed at or
prior to such Delivery Date, as to the matters set forth in subsections (a) and
(g) of this Section and as to such other matters as you may reasonably request.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or
-16-
17
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are 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, and will promptly
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating, preparing to defend or
defending, or appearing as a third-party witness in connection with, any such
action or claim; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, the
Registration Statement or Prospectus or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by the Underwriters through you expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are 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,
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 any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you expressly
for use therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating, preparing
to defend or defending, or appearing as third-party witness in connection with,
any such action or claim. The Company acknowledges that the statements set forth
in the last paragraph on the inside front cover page and the first, second,
third, seventh, eighth and ninth paragraphs under the caption "Underwriting" in
the Preliminary Prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the Preliminary Prospectus or the Prospectus, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if the
defendants in any
-17-
18
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have been advised by counsel that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to defend such
action on behalf of such indemnified party or parties. It is understood that the
indemnifying party shall, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of only one separate firm of attorneys together with appropriate
local counsel at any time for all indemnified parties unless such firm of
attorneys shall have reasonably concluded that one or more indemnified parties
has actual differing interests with any other indemnified party. Upon receipt of
notice from the indemnifying party to such indemnified party of its election so
to appoint counsel to defend such action and approval by the indemnified party
of such counsel, the indemnifying party will not be liable for any settlement
entered into without its written consent and will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). Notwithstanding the immediately preceding sentence
and the first sentence of this paragraph, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant
-18-
19
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (after deducting the
total underwriting discount, but before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations under this
subsection (d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. DEFAULT OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to purchase the
Shares that it has agreed to purchase hereunder at a Delivery Date, you may in
your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within 36 hours after such default
by any Underwriter you do not arrange for the purchase of such Shares, then the
Company shall be entitled to a further period of 36 hours within which to
procure another party or other parties satisfactory to you to purchase such
Shares on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Shares, or the Company notifies you that it has so arranged for
-19-
20
the purchase of such Shares, you or the Company shall have the right to postpone
such Delivery Date for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion, exercised in consultation with Xxxxxx Xxxxxxx
Xxxxx & Xxxxxxxxxxx, L.L.P., may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares that
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Delivery Date, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares that such Underwriter agreed to purchase hereunder at such Delivery Date
and, in addition, to require each non-defaulting Underwriter to purchase its pro
rata share (based on the number of Shares that such Underwriter agreed to
purchase hereunder at such Delivery Date) of the share of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Delivery Date, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Delivery Date, the
obligation of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriters or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE.
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any termination
or cancellation of this Agreement or any investigation (or any statement as to
the results thereof) made by or on behalf of the Underwriters or any controlling
person of any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment for
the Shares.
-20-
21
11. TERMINATION AND PAYMENT OF EXPENSES.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Section 6 and Section 8 hereof; but if for any other reason any
Shares are not delivered by or on behalf of the Company as provided herein, the
Company will reimburse the Underwriters through you for all out-of-pocket
expenses, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery of
the Shares not so delivered, but the Company shall then be under no further
liability to any Underwriter except as provided in Section 6 and Section 8
hereof.
12. NOTICES.
In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
reliable courier, first-class mail, telex or facsimile transmission to Wheat
First Securities, Inc., at Riverfront Plaza, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Finance Department with a copy (which shall
not constitute notice) to Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P., counsel
for the Underwriters; if to the Company shall be sufficient in all respects if
delivered or sent by reliable courier, first-class mail, telex, or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Xxxxxx X. Xxxx with a copy (which shall not constitute
notice) to Xxxxxx & Bird LLP; provided, however, that any notice to any
Underwriter pursuant to Section 8 hereof shall be delivered or sent by reliable
courier, first-class mail, telex or facsimile transmission to such Underwriter
at its address set forth in the Underwriters' Questionnaire, which address will
be supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. SUCCESSORS.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters and the Company and, to the extent provided in Sections 8
and 10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. TIME OF THE ESSENCE.
Time shall be of the essence in this Agreement.
-21-
22
15. BUSINESS DAY.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. APPLICABLE LAW.
This Agreement shall be construed in accordance with the laws of the
Commonwealth of Virginia.
17. CAPTIONS.
The captions included in this Agreement are included solely for
convenience of reference and shall not be deemed to be a part of this Agreement.
18. COUNTERPARTS.
This Agreement may be executed by any one or more of the parties in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
19. PRONOUNS.
All pronouns used herein shall be deemed to refer to the masculine,
feminine or neuter gender as the context requires.
-22-
23
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
among each of the Underwriters and the Company. It is understood that your
acceptance of this Agreement on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement Among Underwriters, the form
of which will be submitted to the Company for examination, upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
XXXXXXXXXX.XXX, INC.
By:
----------------------
Name:
Title:
Accepted as of the date hereof at Richmond, Virginia:
WHEAT FIRST SECURITIES, INC.
X.X. XXXXXXXX & CO.
INTERSTATE/XXXXXXX LANE CORPORATION
As Representatives of the several Underwriters
By: WHEAT FIRST SECURITIES, INC.
By:
--------------------------------
Name:
Title:
-23-
24
SCHEDULE I
OPTIONAL
SECURITIES
TO BE PURCHASED
FIRM SHARES IF MAXIMUM
UNDERWRITER TO BE PURCHASED OPTION EXERCISED
----------- --------------- ----------------
Wheat First Securities, Inc................
X. X. Xxxxxxxx & Co. ......................
Interstate/Xxxxxxx Lane Corporation........
25
EXHIBIT A
Opinion of Counsel for the Company
(i) The Company is a corporation in good standing under the
laws of the State of Georgia, with corporate power under such laws to
own, lease and operate its properties and conduct its business as
described in the Prospectus. The Company is qualified to transact
business as a foreign corporation in all states in which it is required
to be so qualified, except where the failure to be so qualified would
not have a material adverse effect on the Company and its Subsidiaries
taken as a whole.
(ii) Each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation or organization, as the case may be; each Subsidiary has
the corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and each Subsidiary is
qualified to do business as a foreign corporation in good standing in
each jurisdiction in which such qualification is required, except where
the failure to so qualify would not have a material adverse effect upon
the Company and its Subsidiaries taken as a whole.
(iii) As of the dates specified therein, the Company has
authorized and issued capital stock as set forth in the Prospectus.
(iv) All of the outstanding shares of capital stock of, or
membership or other ownership interests in, the Company and the
Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable; and none of the outstanding shares of capital
stock were issued in violation of the preemptive rights of any
shareholder of the Company. All outstanding shares of capital stock of
each of the Subsidiaries are owned by the Company free and clear of any
perfected security interest and any other security interests, claims,
liens or encumbrances.
(v) The Shares have been duly authorized for issuance and sale
to the Underwriters pursuant to this Agreement and, when issued and
delivered by the Company against payment of the consideration set forth
herein, will be validly issued, fully paid and nonassessable and no
holder thereof will be subject to personal liability by reason of being
such a holder; and the Shares are not subject to the preemptive rights
of any shareholder of the Company.
(vi) Upon issuance and delivery of the Shares to or for the
account of the Underwriters and payment therefor as provided herein
(assuming the Underwriters are purchasing such Shares in good faith and
without notice of any adverse claim), the Underwriters will receive
good and marketable title to the Shares, free and clear of all liens,
pledges, charges, encumbrances, equities, claims, security interests,
restrictions, shareholders agreements and voting trusts whatsoever.
A-1
26
(vii) The Shares conform in all material respects as to legal
matters to the description thereof in the Prospectus under the caption
"Description of Capital Stock."
(viii) The form of certificate evidencing the Shares complies
in all material respects with all applicable statutory requirements,
any applicable requirements of the Articles and Bylaws of the Company
and the requirements of the Nasdaq Stock Market's National Market.
(ix) To the knowledge of such counsel, all sales of the
Company's securities prior to the date hereof were at all relevant
times duly registered under the Act or exempt from the registration
requirements of the Act, or if such securities were not registered or
exempt in compliance with the Act, any private rights of action for
rescission or damages arising from the failure to register any such
securities are time barred by applicable statutes of limitations or
equitable principles, including laches.
(x) To the knowledge of such counsel, neither the filing of
the Registration Statement nor the offer or sale of the Shares as
contemplated thereby gives rise to any rights for or related to the
registration of any shares of Common Stock or any other securities of
the Company which have not been waived by the holder or holders thereof
prior to the date of this Agreement.
(xi) The Company has duly authorized the execution and
delivery of this Agreement and the performance by the Company hereunder
and has duly executed and delivered this Agreement, and assuming the
due authorization, execution and delivery of this Agreement by the
other parties hereto, this Agreement is a valid and legally binding
obligation of the Company enforceable in accordance with its terms
except to the extent that (a) enforceability may be limited by
applicable bankruptcy, insolvency, liquidation, reorganization,
moratorium and other laws relating to or affecting the rights and
remedies of creditors generally, (b) the remedy of specific performance
and other forms of equitable relief may be subject to certain defenses
and to the discretion of the court before which a proceeding may be
brought, and (c) the enforcement of rights to indemnity and
contribution under this Agreement may be limited by federal and state
securities laws or principles of public policy underlying such laws.
(xii) The execution and delivery by the Company of this
Agreement did not, and the performance by the Company hereunder, the
consummation by the Company of the transactions contemplated hereby,
the issuance and sale of the Shares by the Company pursuant hereto and
the compliance by the Company with all of the provisions hereof will
not (with or without the giving of notice or the passage of time or
both), result in any violation by the Company of the Articles or Bylaws
of the Company or any breach of or default under any indenture,
mortgage, deed of trust, loan agreement, lease or other written
agreement or instrument to which the Company is a party or by which it
or any of its properties or assets is bound except for any such breach
or default which would not have a material adverse effect on the
business, condition (financial or otherwise) or results of operations
of the Company, and, to the knowledge of such counsel, will not
A-2
27
result in any creation or imposition of a contractual lien or security
interest in, on or against any property or assets of the Company or
violate in any material respect any existing federal or state
constitution, statute, regulation, rule, order or law (assuming
compliance with all applicable state securities or "blue sky" laws, as
to which such counsel need express no opinion), or any judicial or
administrative decree, writ, judgment or order to which, to the
knowledge of such counsel, the Company or any of its properties or
assets is subject.
(xiii) No consent, approval, authorization or other action by,
or filing with, any governmental authority of the United States or the
State of Georgia is required on the part of the Company for the
performance by the Company of this Agreement and the offering, issuance
and sale of the Shares, except such as have been obtained under the Act
and the Exchange Act and the rules and regulations of the Commission
thereunder and such as may be required under state securities or "blue
sky" laws in connection with the offer, sale and distribution of the
Shares by the Underwriters (as to which such counsel need express no
opinion).
(xiv) The Registration Statement and each amendment or
supplement to the Registration Statement and the Prospectus, as of
their respective effective or issue dates (other than the financial
statements and the notes thereto and the related schedules and other
financial and statistical data included therein or omitted therefrom
and the section therein captioned "Underwriting," as to all of which
such counsel need express no opinion), complied as to form in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission thereunder. All required
filings pursuant to Rules 424 and 430A have been made in the manner and
within the time period required.
(xv) To the knowledge of such counsel, there is no litigation
or governmental proceeding pending or overtly threatened by a written
communication against the Company, or to which the Company or any of
its properties or assets is subject, that is required to be described
in the Prospectus but is not described as required.
(xvi) The Company is not in violation of its Articles of
Incorporation or Bylaws or, to the knowledge of such counsel, in
violation of any law, administrative rule or regulation or arbitrators'
or administrative or court decree, judgment or order or, to the
knowledge of such counsel, in violation or default (there being no
existing state of facts, to the knowledge of such counsel, which with
notice or lapse of time or both would constitute a default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company
is a party or to which the Company or its properties are subject and
that is an exhibit to the Registration Statement where such violation
or default could have a material adverse effect on the business,
financial condition or results of operations of the Company, taking
into account any enforceable and valid indemnity that the Company may
have from a third party.
A-3
28
(xvii) Such counsel has reviewed all contracts and other
documents referred to in the Registration Statement and the Prospectus,
and the summaries of and other disclosures regarding such contracts and
other documents included in the Registration Statement and the
Prospectus fairly present the information required to be disclosed with
respect thereto; and, to the knowledge of such counsel, there are no
additional contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required.
(xviii) All descriptions in the Registration Statement and the
Prospectus of statutes, regulations or legal or governmental
proceedings are fair summaries thereof and fairly present the
information required to be shown with respect to such matters.
(xix) The Registration Statement has been declared effective
under the Act, and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act and no proceedings for that purpose have been
instituted or are pending or threatened by the Commission.
(xx) The Shares have been authorized for quotation on the
Nasdaq Stock Market's National Market, subject to notice of issuance;
and the Common Stock has been registered under the Exchange Act.
(xxi) The Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an
"investment company" or an entity "controlled" by an "investment
company" within the meaning of the 1940 Act.
In addition, such counsel shall state it has reviewed certain
corporate records and other documents of the Company and has
participated in conferences with officers and other representatives of
the Company, the Company's independent public accountants, and your
representatives and your counsel at which the contents of the
Registration Statement and the Prospectus were discussed and revised.
Such counsel shall state that although it has not independently
verified, is not passing upon and does not assume any responsibility
for the accuracy, completeness or fairness of the information and
statements contained in the Registration Statement and the Prospectus,
other than as mentioned in paragraphs (xvi) and (xvii) above, on the
basis of the foregoing, no facts have come to such counsel's attention
that lead such counsel to believe that the Registration Statement or
any amendment thereto, at the time such Registration Statement or any
such amendment became effective, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any amendment or supplement
thereto, at the time the Prospectus was issued, at the time any such
amended or supplemented prospectus was issued or on the date such
opinion is issued, included or includes any untrue statement of a
material fact or omitted or omits 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; provided, however, that
such
A-4
29
counsel need not express any belief regarding the financial statements
and notes thereto and the related schedules and other financial and
statistical data contained in or omitted from the Registration
Statement or the Prospectus or any amendment or supplement thereto.
Such opinion may be furnished subject to such stated assumptions,
limitations and qualifications as shall be acceptable to Xxxxxx Xxxxxxx Xxxxx &
Xxxxxxxxxxx, L.L.P., counsel for the Underwriters.
A-5
