EXHIBIT 1.1
SHARES
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PREMIERE TECHNOLOGIES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
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December , 1997
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XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Certain stockholders of Premiere Technologies, Inc., a Georgia corporation
(the "COMPANY"), named in Schedule I hereto (the "SELLING STOCKHOLDERS")
severally propose to sell to you an aggregate of _______________ shares of the
$0.01 par value Common Stock of the Company (the "SHARES"), each Selling
Stockholder selling the amount set forth opposite such Selling Stockholder's
name in Schedule I hereto. The shares of common stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "COMMON STOCK."
Section 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-3, including a
prospectus, relating to the Shares. The registration statement, as amended at
the time it became effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the Act, is hereinafter referred to as the "REGISTRATION STATEMENT";
and the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "PROSPECTUS" (including, in the case of all
references to the Registration Statement or the Prospectus, documents
incorporated therein by reference). If the Company has filed or is required
pursuant to the terms hereof to file a registration statement pursuant to Rule
462(b) under the Act registering additional shares of Common Stock (a "RULE
462(B) REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such Rule
462(b) Registration Statement. The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND"
as used in this Underwriting Agreement (the "AGREEMENT") with respect to the
Registration Statement or the Prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "EXCHANGE ACT") that are deemed to be
incorporated by reference in the Prospectus.
Section 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, each Selling Stockholder agrees, severally
and not jointly, to sell the number of Shares set forth opposite such Selling
Stockholder's name in Schedule I hereto, and you agree to purchase from each
Selling Stockholder at a price per Share of $______ (the "PURCHASE PRICE") the
number of Shares set forth opposite each Selling Shareholder's name in Schedule
I hereto.
The Company and each Selling Stockholder hereby agrees not to (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into, or exercisable or
exchangeable for, Common Stock (including, without limitation, shares of Common
Stock or securities convertible into, or exercisable or exchangeable for, Common
Stock which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the Securities and Exchange
Commission) or (ii) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the ownership of any
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) for a period of 90 days after the date of the
Prospectus without your prior written consent. Notwithstanding the foregoing,
during such period, (i) the Selling Stockholders may make sales of Shares to you
pursuant to this Agreement, (ii) the Company may grant stock options pursuant to
the Company's existing stock option plans, including pursuant to the Company's
existing stock option plans as they are contemplated to be amended as described
in the Xpedite S-4 (as hereinafter defined), (iii) the Company may issue shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof, and (iv) the Company may issue shares
of its Common Stock, and securities convertible or exchangeable into shares of
its Common Stock, pursuant to that certain registration statement on Form S-4
that was filed by the Company on November 5, 1997 (the "XPEDITE S-4") in
connection with the Company's proposed acquisition of Xpedite Systems, Inc. The
Company also agrees not to file any registration statement with respect to any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock for a period of 90 days after the date of the
Prospectus without your prior written consent (any such registration that is
undertaken with your prior written consent being hereinafter called a "Permitted
Registration"). In addition, each Selling Stockholder agrees that, for a period
of 90 days after the date of the Prospectus without your prior written consent,
it will not make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible into,
or exercisable or exchangeable for, Common Stock, except that if the Company
undertakes a Permitted Registration during such period, and the Selling
Stockholder has the right to include securities in the registration statement
filed in connection with such Permitted Registration pursuant to agreements that
were in force prior to the date of the lock-up letter executed by such Selling
Stockholder in connection with this offering and that remain in force as of the
date of the filing of such registration statement, then the Selling Stockholder
shall be permitted to exercise any such registration right with respect to such
Permitted Registration; and, provided, that registration statements filed by the
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Company pursuant to that certain Registration Rights Agreement dated June 15,
1997 with respect to the resale by certain securityholders of the Company's
5-3/4% Convertible Subordinated Notes due 2004 and pursuant to paragraph (B) of
that certain letter agreement dated
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October 2, 1997 between certain Selling Stockholders and the Company to
effectuate the "VOICE-TEL SHELF" (as such term is defined therein) shall be
deemed a Permitted Registration.
The Company shall, prior to or concurrently with the execution of this
Agreement, deliver an agreement executed by (i) each Selling Stockholder, (ii)
each of the directors and executive officers of the Company who is not a Selling
Stockholder and (iii) each stockholder listed on Annex I hereto to the effect
that such person will not, during the period commencing on the date such person
signs such agreement and ending 90 days after the date of the Prospectus,
without your prior written consent, (A) engage in any of the transactions
described in the first sentence of the foregoing paragraph or (B) except
pursuant to a Permitted Registration as described in the preceding paragraph,
make any demand for, or exercise any right with respect to, the registration of
any shares of Common Stock or any securities convertible into, or exercisable or
exchangeable for, Common Stock. Notwithstanding the foregoing restrictions on
transfer, the undersigned shall be permitted to make the following transfers:
(i) transfers made to you pursuant to this Agreement; (ii) transfers made by
gift, provided the donee thereof agrees in writing to be bound by the terms
hereof; (iii) transfers to the transferor's affiliates, as such term is defined
by Rule 405 promulgated under the Act, provided that each transferee agrees in
writing to be bound by the terms hereof; (iv) transfers made pursuant to a
Permitted Registration; and (v) transfers made with your prior written consent.
Section 3. Terms of Public Offering. The Selling Stockholders are advised
by you that you propose (i) to make a public offering of the Shares as soon
after the execution and delivery of this Agreement as in your judgment is
advisable and (ii) initially to offer the Shares upon the terms set forth in the
Prospectus at a price as may be determined by you in your sole discretion.
Section 4. Delivery and Payment. Delivery to you of and payment for the
Shares shall be made at 9:00 A.M., New York City time (the "CLOSING TIME"), on
__________________ , 199__ (the "CLOSING DATE") at such place as you shall
designate. The Closing Date and the location of delivery of and payment for
the Shares may be varied by agreement between you and the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two full
business days prior to the Closing Date. Such certificates shall be made
available to you for inspection not later than 9:30 A.M., New York City time, on
the business day prior to the Closing Date. Certificates in definitive form
evidencing the Shares shall be delivered to you on the Closing Date, with any
transfer taxes thereon duly paid by the respective Selling Stockholders, for
your account, against payment to the Selling Stockholders of the Purchase Price
therefor by wire transfer of Federal or other funds immediately available in New
York City.
Section 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective,
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(iv) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, when the Rule 462(b) Registration
Statement has become effective and (v) of the happening of any event during the
period referred to in Section 5(d) below which makes any statement of a material
fact made in the Registration Statement or the Prospectus untrue or which
requires any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at any
time the Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish you five signed copies of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits and documents incorporated therein by reference, and to furnish to you
such number of conformed copies of the Registration Statement as so filed and of
each amendment to it, without exhibits but including documents incorporated
therein by reference, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been advised
or to which you shall reasonably object after being so advised; and, during such
period, to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or supplement
to the Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of your counsel a prospectus is required by law to be
delivered in connection with sales by you or a dealer, to furnish in New York
City to you and any dealer as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) and any documents incorporated
therein by reference as you or such dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of your
counsel, it becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of
your counsel, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with applicable law, and to furnish to you and to any dealer as many
copies thereof as you or such dealer may reasonably request.
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(f) Prior to any public offering of the Shares, to cooperate with you
and your counsel in connection with the registration or qualification of the
Shares for offer and sale by you and by dealers under the state securities or
Blue Sky laws of such jurisdictions as you may reasonably request, to continue
such registration or qualification in effect so long as required for
distribution of the Shares and to file such consents to service of process or
other documents as may be necessary in order to effect such registration or
qualification; provided, however, that the Company shall not be required in
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connection therewith to register or qualify as a foreign corporation in any
jurisdiction in which it is not now so registered or qualified or to take any
action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Prospectus,
the Registration Statement, any preliminary prospectus or the offering or sale
of the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon as
practicable an earnings statement covering the twelve-month period ending
December 31, 1998 that shall satisfy the provisions of Section 11(a) of the Act,
and to advise you in writing when such statement has been so made available.
(h) During the period of three years after the date of this Agreement,
to furnish to you as soon as available copies of all reports or other
communications furnished to the record holders of Common Stock or furnished to
or filed with the Commission or any national securities exchange on which any
class of securities of the Company is listed and such other publicly available
information concerning the Company and its subsidiaries as you may reasonably
request.
(i) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Company's obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration and delivery of the
Shares under the Act and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to you and dealers in the
quantities specified herein, (ii) all costs of printing or producing this
Agreement and any other agreements or documents in connection with the offering,
purchase, sale or delivery of the Shares, (iii) all expenses in connection with
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of your counsel
in connection with such registration or qualification and memoranda relating
thereto), (iv) the filing fees and disbursements of your counsel in connection
with the review and clearance of the offering of the Shares by the National
Association of Securities Dealers, Inc., (v) all costs and expenses incident to
the listing of the Shares on the Nasdaq National Market, (vi) the costs and
charges of any transfer agent, registrar and/or depositary, and (vii) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this Section. The
provisions of this Section shall not supersede or otherwise affect any agreement
that the Company and the Selling Stockholders may otherwise have for allocation
of such expenses among themselves.
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(j) To use its best efforts to maintain the listing for quotation of the
Shares on the Nasdaq National Market and to maintain the listing of the Shares
on the Nasdaq National Market for a period of three years after the date of this
Agreement.
(k) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the
Shares.
(l) Not to rescind, revoke, modify or otherwise amend its election to
postpone the filing of the registration statement for the Voice-Tel Shelf until
March 15, 1998.
(m) If the Registration Statement at the time of the effectiveness of
this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so covered
in compliance with Rule 462(b) by 10:00 P.M., New York City time, on the date of
this Agreement and to pay to the Commission the filing fee for such Rule 462(b)
Registration Statement at the time of the filing thereof or to give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b) under the Act.
Section 6. Representations and Warranties of the Company. The Company
represents and warrants to you that:
(a) The Registration Statement has become effective (other than any Rule
462(b) Registration Statement to be filed by the Company after the effectiveness
of this Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or, to the Company's knowledge, threatened
by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act, (ii) the
Registration Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement), when it became
effective, did not contain and, as amended, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement (other than any Rule 462(b) Registration
Statement to be filed by the Company after the effectiveness of this Agreement)
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the requirements of the Act, (iv) if the
Company is required to file a Rule 462(b) Registration Statement after the
effectiveness of this Agreement, such Rule 462(b) Registration Statement and any
amendments thereto, when they become effective (A) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(B) will comply in all material respects with the requirements of the Act and
(v) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
6
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph (b) do not
apply to statements or omissions in the Registration Statement or the Prospectus
based upon information relating to you furnished to the Company in writing by
you expressly for use therein.
(c) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the requirements of the Act, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in any preliminary prospectus based upon information
relating to you furnished to the Company in writing by you expressly for use
therein or relating to any Selling Stockholder furnished to the Company in
writing by such Selling Stockholder expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and authority to carry
on its business as described in or the Prospectus and to own, lease and operate
its properties, and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole or
on the Company's ability or right to perform its obligations under this
Agreement or to consummate the transactions contemplated hereby. Except for the
subsidiaries listed on Annex III hereto (the "SIGNIFICANT SUBSIDIARIES"), the
Company does not have any subsidiary which is individually a "significant
subsidiary" (as defined in Item 1-02 of Regulation S-X). For purposes of this
Agreement, the term "subsidiary" includes any corporation, partnership,
association or other entity in which the Company or any subsidiary, directly or
indirectly, has a controlling ownership interest.
(e) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens granted or issued by
the Company or any of its subsidiaries relating to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of the Company
or any of its subsidiaries, except as otherwise disclosed in the Registration
Statement.
(f) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been duly
authorized and validly issued and are fully paid, non-assessable and not subject
to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned
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by the Company, directly or indirectly through one or more subsidiaries, free
and clear of any security interest, claim, lien, encumbrance or adverse interest
of any nature.
(h) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Prospectus.
(i) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound except for such violations or
defaults which would not individually or in the aggregate have a material
adverse effect on the business, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, or on the Company's ability
or right to perform its obligations under this Agreement or to consummate the
transactions contemplated hereby.
(j) The execution, delivery and performance of this Agreement by the
Company, the compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required in order to
register the sale of the Shares pursuant to the Act or as may be required under
the securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound except for such
conflicts, breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on the business, financial condition
or results of operations of the Company and its subsidiaries taken as a whole,
or on the Company's ability or right to perform its obligations under this
Agreement or to consummate the transactions contemplated hereby, (iii) violate
or conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property, except for
such violations or conflicts which would not, individually or in the aggregate,
have a material adverse effect on the business, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole, or on the
Company's ability or right to perform its obligations under this Agreement or to
consummate the transactions contemplated hereby, or (iv) result in the
suspension, termination or revocation of any Authorization (as defined below) of
the Company or any of its subsidiaries or any other impairment of the rights of
the holder of any such Authorization.
(k) Except as disclosed in the Prospectus (or incorporated by reference
therein), there are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any of its subsidiaries
is or could reasonably be expected to be a party or to which any of their
respective property is or could reasonably be expected to be subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described; nor are there
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any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required.
(l) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS") or any provisions of
the Employee Retirement Income Security Act of 1974, as amended, or the rules
and regulations promulgated thereunder, except for such violations which, singly
or in the aggregate, would not have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company and its
subsidiaries, taken as a whole.
(m) Each of the Company and its subsidiaries has such permits, licenses,
consents, exemptions, franchises, authorizations and other approvals (each, an
"AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. Each such Authorization is valid and in full
force and effect and each of the Company and its subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries; except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(n) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, all material patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("intellectual property") currently
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole; and except as
disclosed in the Prospectus 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 such intellectual property which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have
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a material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as a whole.
(o) The Company and each of its Significant Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Company nor any of its Significant Subsidiaries (i)
has received notice from any insurer or agent of such insurer that substantial
capital improvements or other material expenditures will have to be made in
order to continue such insurance or (ii) has any 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 at a cost that would
not have a material adverse effect on the business, prospects, financial
conditions or results of operations of the Company and its subsidiaries, taken
as a whole.
(p) There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole.
(q) This Agreement has been duly authorized, executed and delivered by the
Company.
(r) Xxxxxx Xxxxxxxx LLP are independent public accountants with respect to
the Company and its subsidiaries as required by the Act.
(s) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present fairly
the consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis stated
therein at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed therein; the supporting
schedules, if any, included or incorporated by reference in the Registration
Statement present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
(t) The pro forma financial statements of the Company and its subsidiaries
--- -----
and the related notes thereto set forth or incorporated by reference in the
Registration Statement and the Prospectus (and any supplement or amendment
thereto) have been prepared on a basis consistent with the historical financial
statements of the Company and its subsidiaries, give effect to the assumptions
used in the preparation thereof on a reasonable basis and in good faith and
present fairly the historical and proposed transactions described in or
contemplated by the Registration Statement and
10
the Prospectus. Such pro forma financial statements have been prepared in
--- -----
accordance with the applicable requirements of Rule 11-02 of Regulation S-X
promulgated by the Commission. The other pro forma financial and statistical
--- -----
information and data set forth in the Registration Statement and the Prospectus
(and any supplement or amendment thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with the pro forma
--- -----
financial statements.
(u) The Company and each of its subsidiaries 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
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(v) All material tax returns required to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(w) The Company is not an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(x) Except as specifically disclosed in the Registration Statement, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement.
(y) Since the respective dates as of which information is given in the
Prospectus, other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there has not occurred any material adverse change or any development involving
a prospective material adverse change in the condition, financial or otherwise,
or the earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries, taken as a whole and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(z) Each certificate signed by any officer of the Company and delivered to
you or your counsel shall be deemed to be a representation and warranty by the
Company to you as to the matters covered thereby.
11
Section 7. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder represents and warrants to you that:
(a) Such Selling Stockholder is the lawful owner of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement (or, in the case of
Selling Stockholders who hold convertible securities (the "HOLDERS OF
CONVERTIBLE SECURITIES"), is the holder of securities that are immediately
convertible into the Shares to be sold by such Selling Stockholders) and each
Selling Stockholder (excluding the Holders of Convertible Securities) has, and
on the Closing Date each Selling Stockholder (including the Holders of
Convertible Securities) will have, good and clear title to such Shares, free of
all restrictions on transfer, liens, encumbrances, security interests and claims
whatsoever.
(b) Such Selling Stockholder has, and on the Closing Date will have, full
legal right, power and authority, and all authorization and approval required by
law, to enter into this Agreement, the Custody Agreement signed by such
Selling Stockholder and SunTrust Bank, as Custodian, relating to the deposit of
the Shares to be sold by such Selling Stockholder (the "CUSTODY AGREEMENT") and
the Power of Attorney of such Selling Stockholder appointing certain individuals
as such Selling Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent
set forth therein, relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and
to sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided herein and therein.
(c) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder.
(d) The Custody Agreement of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance and other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles, including, without limitation, the possible unavailability
of specific performance and injunctive relief, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and except
that rights to indemnification and contribution thereunder may be limited under
applicable securities laws.
(e) The Power of Attorney of such Selling Stockholder has been duly
authorized, executed and delivered by such Selling Stockholder and is a valid
and binding instrument of such Selling Stockholder, enforceable in accordance
with its terms, except as such enforcement may be limited by bankruptcy,
insolvency, moratorium, reorganization, fraudulent conveyance and other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles, including, without limitation, the possible unavailability
of specific performance and injunctive relief, regardless of whether such
enforceability is considered in a proceeding in equity or at law, and except
that rights to indemnification and contribution thereunder may be limited under
applicable securities laws; and, pursuant to such Power of Attorney, such
Selling Stockholder has,
12
among other things, authorized the Attorneys, or any one of them, to execute and
deliver on such Selling Stockholder's behalf this Agreement and any other
document that they, or any one of them, may deem necessary or desirable in
connection with the transactions contemplated hereby and thereby and to deliver
the Shares to be sold by such Selling Stockholder pursuant to this Agreement.
(f) Upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement, good and clear title to such
Shares will pass to you, free of all restrictions on transfer, liens,
encumbrances, security interests and claims whatsoever.
(g) The execution, delivery and performance of this Agreement and the
Custody Agreement and Power of Attorney of such Selling Stockholder by or on
behalf of such Selling Stockholder, the compliance by such Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require such Selling
Stockholder to obtain any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
may be required in order to register the sale of the Shares pursuant to the Act
or as may be required under the securities or Blue Sky laws of the various
states), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the organizational documents of such Selling
Stockholder, if such Selling Stockholder is not an individual, or any indenture,
loan agreement, mortgage, lease or other agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder or any
property of such Selling Stockholder is bound or (iii) violate or conflict with
any applicable law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction over such Selling
Stockholder or any property of such Selling Stockholder.
(h) The information in the Registration Statement under the caption
"Principal and Selling Stockholders" which relates specifically to such Selling
Stockholder and has been provided in writing to the Company for use in the
Registration Statement does not, and will not on the Closing Date, contain 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.
(i) At any time during the period described in Section 5(d), if there is
any change in the information referred to in Section 7(h), such Selling
Stockholder will immediately notify you of such change.
(j) Each certificate signed by or on behalf of such Selling Stockholder
and delivered to you or your counsel shall be deemed to be a representation and
warranty by such Selling Stockholder to you as to the matters covered thereby.
(k) Such Selling Stockholder has not taken, and will not take, directly or
indirectly, any action designed to, or which might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares pursuant to the
distribution contemplated by the Underwriting Agreement, and other than as
13
permitted by the Act, such Selling Stockholder has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares.
Section 8. Indemnification. (a) The Company and Premiere Communications,
Inc., Voice-Tel Enterprises, Inc. and VoiceCom Systems Inc., each a subsidiary
of the Company, jointly and severally, agree to indemnify and hold harmless each
Selling Stockholder, its directors, its officers and each person, if any, who
controls such Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act and you, your directors, your officers and each
person, if any, who controls you within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), the Prospectus (or any amendment or supplement thereto)
or any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading or caused by any violation by the Company
of the Act or the Exchange Act or any rule or regulation thereunder applicable
to the Company and relating to any action or inaction required of the Company in
connection with the transactions contemplated hereunder, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to you or any Selling Stockholder furnished in writing to
the Company by you or such Selling Stockholder, respectively, expressly for use
therein. Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each of its directors and officers,
you, your directors, your officers, each person, if any, who controls you,
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each of the other Selling Stockholders and each of their officers, directors,
members, partners or control persons to the same extent as the indemnity set
forth in the first sentence of Section 8(a) but only with reference to
information relating specifically to such Selling Stockholder furnished in
writing to the Company by such Selling Stockholder expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus. Notwithstanding
the foregoing, the aggregate liability of any Selling Stockholder pursuant to
this Section 8(a) shall be limited to an amount equal to the total proceeds
(after deducting discounts and commissions payable to you but before deducting
any other expenses) received by such Selling Stockholder from you for the sale
of the Shares sold by such Selling Stockholder hereunder.
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, each Selling Stockholder and each person, if any, who
controls such Selling Stockholder within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
the first sentence of Section 8(a) but only with reference to information
relating to you furnished in writing to the Company by you expressly for use in
the Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus.
14
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), you shall not be required to assume the defense
of such action pursuant to this Section 8(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of such
separate counsel, except as provided below, shall be at your expense). Any
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
separate counsel shall be at the expense of the indemnified party unless (i) the
employment of such separate counsel shall have been specifically authorized in
writing by the indemnifying party, (ii) the indemnifying party shall have failed
to assume the defense of such action or employ counsel reasonably satisfactory
to the indemnified party or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised by such
separate counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the indemnifying
party (in which case the indemnifying party shall not have the right to assume
the defense of such action on behalf of the indemnified party). In any such
case, the indemnifying party shall not, in connection with any one 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 (i)
the fees and expenses of more than one separate firm of attorneys (in addition
to any local counsel) for you, your officers and directors and all persons, if
any, who control you within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, (ii) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for the Company,
its directors, its officers who sign the Registration Statement and all persons,
if any, who control the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all Selling Stockholders and all persons, if
any, who control any Selling Stockholder within the meaning of either such
Section, and all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for you, your officers and
directors and such control persons of you, such firm shall be designated in
writing by you. In the case of any such separate firm for the Company and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case of any such separate firm
for the Selling Stockholders and such control persons of any Selling
Stockholders, such firm shall be designated by the written consent of Selling
Stockholders representing a majority of the Shares sold pursuant to the
transactions contemplated hereunder. The indemnifying party shall indemnify and
hold harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than twenty business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. No indemnifying party shall,
15
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this Section 8 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand from the offering of the Shares or (ii) if the
allocation provided by clause 8(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause 8(d)(i) above but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative benefits received by
the Selling Stockholders on the one hand and you on the other hand shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Selling Stockholders on the one hand
and the total underwriting discounts and commissions received by you, on the
other hand, bear to the total price to the public of the Shares, in each case as
set forth in the table on the cover page of the Prospectus. Notwithstanding the
immediately preceding sentence, if the losses, claims, damages or liabilities in
respect of which contribution is being sought are caused by any untrue statement
or alleged untrue statement of a material fact other than any such statements or
omissions made in reliance upon and in conformity with information furnished to
the Company in writing by (i) you expressly for use in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus or (ii) any Selling
Stockholder expressly for use in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, then the relative benefits received by the Company on
the one hand and you on the other hand in connection with the offering of the
Shares shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Shares (before deducting expenses) received by
the Selling Stockholders (notwithstanding that the Company receives none of such
proceeds) and the total underwriting discounts and commissions received by you,
in each case as set forth in the table on the cover of the Prospectus, bear to
the total price to the public of the Shares; and in such case, the parties
hereto agree that for purposes of this sentence only, the Selling Stockholder
would be deemed to receive no benefits from the offering of the Shares. The
relative faults, if any, of the Company, the Selling Stockholders and you 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, the Selling
Stockholders or you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
16
The Company, the Selling Stockholders and you agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses incurred by
such indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, you shall not 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 any
damages which you have 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.
(e) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) Each Selling Stockholder hereby designates CT Corporation System,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as its authorized agent, upon which
process may be served in any action which may be instituted in any state or
federal court in the State of New York by you, any of your directors or officers
or any person controlling you asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and each Selling Stockholder
will accept the jurisdiction of such court in such action, and waives, to the
fullest extent permitted by applicable law, any defense based upon lack of
personal jurisdiction or venue. A copy of any such process shall be sent or
given to such Selling Stockholder, at the address for notices specified in
Section 12 hereof.
Section 9. Conditions of Your Obligations. Your obligation to purchase
the Shares under this Agreement are subject to the satisfaction of each of the
following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxx, in their
capacities as the Chairman of the Board and Chief
17
Executive Officer and Senior Vice President Finance and Legal of the Company,
confirming the matters set forth in Sections 6(t), 9(a) and 9(b) and that the
Company has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied by the
Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in the
Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement), (i)
there shall not have occurred any change or any development involving a
prospective change in the condition, financial or otherwise, or the earnings,
business, management or operations of the Company and its subsidiaries, taken as
a whole, (ii) there shall not have been any change or any development involving
a prospective change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(d)(i),
9(d)(ii) or 9(d)(iii), in your judgment, is material and adverse to the Company
and its subsidiaries, taken as a whole, and, in your judgment, makes it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
(e) All the representations and warranties of each Selling Stockholder
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date, and you
shall have received on the Closing Date a certificate executed by the Attorneys
on behalf of each Selling Stockholder dated the Closing Date from each Selling
Stockholder to such effect and to the effect that such Selling Stockholder has
complied with all of the agreements and satisfied all of the conditions herein
contained and required to be complied with or satisfied by such Selling
Stockholder on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion (satisfactory
to you and your counsel, dated the Closing Date, of Xxxxxx & Bird LLP, counsel
for the Company, to the effect that:
(i) each of the Company and its Significant Subsidiaries has been
duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the corporate
power and authority to carry on its business as described in the Prospectus
and to own, lease and operate its properties;
(ii) each of the Company and its Significant Subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction listed on a schedule to be attached to such
opinion, which schedule shall be reasonably acceptable to you and your
counsel;
(iii) to such counsel's knowledge, the Company does not own or
control, directly or indirectly, any corporation, association or other
entity other than the subsidiaries listed on Annex II hereto;
(iv) all the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholders) have been
duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights under the
18
Company's Articles of Incorporation, under Georgia law or under any
agreement known to such counsel;
(v) all of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the authorized capital stock of the Company conforms in all
material respects as to legal matters to the description thereof contained
in the Prospectus;
(viii) the Registration Statement has become effective under the
Act and, to the knowledge of such counsel, after due inquiry, no stop order
suspending its effectiveness has been issued and no proceedings for that
purpose are pending before or contemplated by the Commission;
(ix) the statements under the captions "Description of Capital
Stock," "Business Legal Proceedings," "Price Range of Common Stock and
Dividend Policy" and "Business Government Regulation", insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings;
(x) the descriptions in the Prospectus of the Articles of
Incorporation and Bylaws of the Company and of statutes and contracts are
accurate in all material respects;
(xi) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to such counsel's
knowledge, neither the Company nor any of its subsidiaries is in default in
the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
or their respective property is bound;
(xii) the execution, delivery and performance of this Agreement by
the Company, will not (A) require any consent, approval, authorization or
other order of, or qualification with, any court or governmental body or
agency (except such as may be required under the Act or the securities or
Blue Sky laws of the various states), (B) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
charter or by-laws of the Company or any of its subsidiaries or any
agreement described in the Registration Statement or previously filed (or
incorporated by reference) as an exhibit to the Company's filings under the
Securities Exchange Act of 1934 (collectively, "MATERIAL CONTRACTS"), (C)
violate
19
or conflict with any applicable law or any rule, regulation, judgment or,
to such counsel's knowledge, any order, writ or decree of any court or any
governmental body or agency having jurisdiction over the Company, any of
its subsidiaries or their respective property;
(xiii) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective property is
subject that are required to be described in the Registration Statement or
the Prospectus and are not so described, or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not so described or filed as required;
provided, however, that such counsel need express no opinion with respect
to any federal or state law or regulation involving the regulation of
telecommunications or licensure thereunder;
(xiv) the Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(xv) to such counsel's knowledge, except as described in the
Registration Statement or with respect to rights that have been waived,
there are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities
of the Company or to require the Company to include such securities with
the Shares registered pursuant to the Registration Statement; and
(xvi) (A) each document, if any, filed pursuant to the Exchange Act
and incorporated by reference in the Prospectus (except for financial
statements and other financial and statistical data included therein as to
which no opinion need be expressed) complied when so filed as to form in
all material respects with the Exchange Act, (B) the Registration Statement
and the Prospectus and any supplement or amendment thereto (except for the
financial statements and other financial data included therein as to which
no opinion need be expressed) comply as to form with the Act.
In addition, such counsel shall state that such counsel has participated in
conferences with officials and other representatives of the Company, you, your
counsel and the independent certified public accountants of the Company, at
which such conferences the contents of the Registration Statement and related
matters were discussed, and although they have not verified the accuracy or
completeness of the statements contained in the Registration Statement and the
Prospectus included therein (except for the financial statements, supporting
schedules and other financial and statistical data as to which such counsel need
not express any belief), nothing has come to the attention of such counsel which
leads them to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or the Prospectus (except for the financial
statements, supporting schedules and other financial and statistical data as to
which such counsel need not express any belief), as of its date and as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary
20
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In giving its opinion, such counsel may rely, (A) as to all matters of
fact, upon certificates and written statements of officers and employees of the
Company and its subsidiaries, and (B) as to the qualification and good standing
of the Company and any subsidiaries to do business in any jurisdiction, upon
certificates of appropriate government officials in such jurisdictions. Counsel
rendering the foregoing opinion may rely as to questions of law not involving
the laws of the United States or the State or Georgia upon opinions of local
counsel.
The opinion of Xxxxxx & Bird LLP described in Section 9(f) above shall be
rendered to you at the request of the Company and shall so state therein.
(g) With respect to each Selling Stockholder, you shall have received on
the Closing Date an opinion (satisfactory to you and your counsel), dated the
Closing Date, from counsel for each of the Selling Stockholders, to the effect
that:
(i) this Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder;
(ii) such Selling Stockholder has full legal right, power and
authority, and all authorization and approval required by law, to enter
into this Agreement and the Custody Agreement and the Power of Attorney of
such Selling Stockholder and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder in the manner provided herein
and therein;
(iii) the Custody Agreement of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is
a valid and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance
and other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles, including, without
limitation, the possible unavailability of specific performance and
injunctive relief, regardless of whether such enforceability is considered
in a proceeding in equity or at law, and except that rights to
indemnification and contribution thereunder may be limited under applicable
securities laws;
(iv) the Power of Attorney of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and is
a valid and binding instrument of such Selling Stockholder, enforceable in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance
and other similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles, including, without
limitation, the possible unavailability of specific performance and
injunctive relief, regardless of whether such enforceability is considered
in a proceeding in equity or at law, and except that rights to
21
indemnification and contribution thereunder may be limited under applicable
securities laws, and, pursuant to such Power of Attorney, such Selling
Stockholder has, among other things, authorized the Attorneys, or any one
of them, to execute and deliver on such Selling Stockholder's behalf this
Agreement and any other document they, or any one of them, may deem
necessary or desirable in connection with the transactions contemplated
hereby and thereby and to deliver the Shares to be sold by such Selling
Stockholder pursuant to this Agreement;
(v) upon delivery of and payment for the Shares to be sold by such
Selling Stockholder pursuant to this Agreement and assuming you take the
Shares without notice of any adverse claim, good and valid title to such
Shares will pass to you, free of all restrictions on transfer, liens,
encumbrances, security interests and adverse claims whatsoever; and
(vi) the execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of such Selling Stockholder by
such Selling Stockholder, the compliance by such Selling Stockholder with
all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (A) require such
Selling Stockholder to obtain any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue Sky laws of
the various states), (B) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the organizational documents of
such Selling Stockholder, if such Selling Stockholder is not an individual,
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which such Selling Stockholder is a party or by which any
property of such Selling Stockholder is bound or (C) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree
of any court or any governmental body or agency having jurisdiction over
such Selling Stockholder or any property of such Selling Stockholder.
The opinions of counsel for the Selling Stockholders described in Section
9(g) above shall be rendered to you at the request of each respective Selling
Stockholder and shall so state therein.
(h) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P., your counsel, as to
the matters referred to in Sections 9(f)(ix) (but only with respect to the
statements under the caption "Underwriting") and clause 9(f)(xvi)(B).
In addition, such counsel shall state that such counsel has participated in
conferences with officials and other representatives of the Company, you,
counsel for the Company and the independent certified public accountants of the
Company, at which such conferences the contents of the Registration Statement
and related matters were discussed, and although they have not verified the
accuracy or completeness of the statements contained in the Registration
Statement and the Prospectus included therein (except for the financial
statements, supporting schedules and other financial and statistical data as to
which such counsel need not express any belief), nothing has come to the
attention of such counsel which leads them to believe that the Registration
Statement, at the time it became effective, contained an untrue statement of a
material fact or omitted to state a
22
material fact required to be stated therein or necessary to make the statements
therein not misleading, or the Prospectus (except for the financial statements,
supporting schedules and other financial and statistical data as to which such
counsel need not express any belief), as of its date and as of the Closing Date,
contained or contains an 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.
(i) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from (A) Xxxxxx Xxxxxxxx LLP,
independent public accountants with respect to the Company and its subsidiaries,
(B) Ernst & Young LLP, independent public accountants with respect to Xpedite
Systems, Inc., and (C) Price Waterhouse, independent public accountants with
respect to Xpedite Systems Limited, containing the information and statements of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference into the Registration Statement and
the Prospectus.
(j) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Xxxxx, Friend & Spronov LLP, special Federal Communications
Commission counsel for the Company, in the form attached hereto as Exhibit A.
(k) The Company shall have delivered to you the agreements specified in
Section 2 hereof which agreements shall be in full force and effect on the
Closing Date.
(l) The Shares shall have been duly listed for quotation on the Nasdaq
National Market.
(m) The Company and the Selling Stockholders shall not have failed on or
prior to the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company or the
Selling Stockholders, as the case may be, on or prior to the Closing Date.
(n) You shall have received on the Closing Date, a certificate of each
Selling Stockholder who is not a U.S. Person (as defined under applicable U.S.
federal tax legislation) to the effect that such Selling Stockholder is not a
U.S. Person, which certificate may be in the form of a properly completed and
executed United States Treasury Department Form W-8 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
Section 10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company and the Selling Stockholders if any
of the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in your judgment, is material and adverse and, in your judgment, makes it
impracticable to market the
23
Shares on the terms and in the manner contemplated in the Prospectus; (ii) the
suspension or material limitation of trading in securities or other instruments
on the New York Stock Exchange, the American Stock Exchange, the Chicago Board
of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade
or the Nasdaq National Market or limitation on prices for securities or other
instruments on any such exchange or the Nasdaq National Market; (iii) the
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole; (v) the declaration of a banking moratorium by
either federal or New York State authorities; or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
Section 11. Agreements of the Selling Stockholders. Each Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in connection
with the transfer of the Shares to be sold by such Selling Stockholder to you.
(g) To do and perform all things to be done and performed by such Selling
Stockholder under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
Section 12. Miscellaneous.
(a) Notices given pursuant to any provision of this Agreement shall be
addressed as follows: (i) if to the Company, to Premiere Technologies, Inc.,
Attn: President, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000, (ii) if to the Selling Stockholders, to Xx. Xxx Xxxxx and Xx.
Xxxxxx Xxxxxx c/o Xx. Xxx Xxxxx, Xxxxxxxx Xxxxxxxxx & Xxxx, P.C., 0000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 and Xxx Xxxxxxx, Amway Corporation, 0000
Xxxxxx Xxxxxx Xxxx, Xxx, Xxxxxxxx 00000, (iii) if to you, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, or in any case to such other address as the
person to be notified may have requested in writing.
(b) In the event of a default by a Selling Stockholder as referred to in
this Section, you and the non-defaulting Selling Stockholders shall have the
right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements.
No action taken pursuant to this Section shall relieve any Selling
Stockholder or Selling Stockholders so defaulting from liability, if any, in
respect of such default.
(c) The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholders and you
set forth in or made pursuant to
24
this Agreement shall remain operative and in full force and effect, and will
survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
you, your officers or directors, any person controlling you, the Company, its
officers or directors, any person controlling the Company, any Selling
Stockholder or any person controlling such Selling Stockholder, (ii) acceptance
of the Shares and payment for them hereunder and (iii) termination of this
Agreement.
(d) Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it has agreed to pay pursuant to Section 5(i)
hereof. The Company also agrees to reimburse you, your directors and officers
and any persons controlling you for any and all fees and expenses (including,
without limitation, the fees disbursements of counsel) incurred by them in
connection with enforcing their rights hereunder (including, without limitation,
pursuant to Section 8 hereof).
(e) Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, you, your directors and officers, any controlling persons referred
to herein, the Company's directors and the Company's officers who sign the
Registration Statement and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from you merely
because of such purchase.
(f) The parties hereto acknowledge that: (i) each person who is executing
this Agreement as Attorney on behalf of a Selling Stockholder other than himself
is executing this Agreement pursuant to the authority granted to him in the
Powers of Attorney; (ii) no Attorney has made any inquiry or investigation with
respect to any Selling Stockholder other than himself (if such Attorney is also
a Selling Stockholder), and shall not be deemed to be personally making any
representations or warranties with respect to any Selling Stockholder other than
himself (if such Attorney is also a Selling Stockholder); and (iii) the
restrictions set forth in the third paragraph of Section 2 of this Agreement
shall only be applicable to any Attorney to the extent of such Attorney's
ownership of the Company's securities.
(g) This Agreement shall be governed and construed in accordance with the
laws of the State of New York, without giving effect to principles of conflicts
of laws.
(h) This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
25
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Selling Stockholders and you.
Very truly yours,
PREMIERE TECHNOLOGIES, INC.
By:
--------------------------------------
Title:
AS TO SECTION 8 OF THE AGREEMENT:
PREMIERE COMMUNICATIONS, INC.
By:
--------------------------------------
Title:
VOICE-TEL ENTERPRISES, INC.
By:
--------------------------------------
Title:
VOICECOM SYSTEMS, INC.
By:
--------------------------------------
Title:
26
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE I HERETO, EXCLUDING AMWAY
CORPORATION, ACTING SEVERALLY
By:
--------------------------------------
Attorney-in-fact
AMWAY CORPORATION
By:
--------------------------------------
Attorney-in-Fact
By:
--------------------------------------
Attorney-in-Fact
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
------------------------
Title:
-----------------
27
SCHEDULE I
----------
Selling Stockholders
--------------------
NUMBER OF
NAME SHARES BEING SOLD
---- -----------------
Xxxxx, Xxxxxxx Xxxx 32,811
Xxxxx, Xxxxxxx Xxxx 7,153
Xxxxx, Xxxxx 32,944
[Amway Corporation] [254,919]
Automated Messaging, Inc. 20,000
Xxxxxxxx, Xxxxxxx X. and Xxxxx X. 10,417
Xxxxxxxxx, Xxxxx 12,000
Xxxxxx, Xxxxxxx X. 6,000
Xxxxxx, Xxxxxx X. 3,000
Clarke IV, Xxxxxxxxx X. 3,000
Xxxxx, Xxxxx X. 30,000
Xxxxxx, Xxxx & Xxxxxx 12,000
Xxxxxxx, Xxxxxx 7,323
[Eil, Xxxxxxxx X.] [2,500]
Xxxxxxxxx, Xxxxx X. 7,000
[Estate of Xxxxxx X. XxXxxxxx] [34,400]
Xxxxxxxxx, Xxxxx 1,700
[Field Jr., Xxxxxxxx] [31,825]
Xxxxxxx, Xxxxxx 74,115
Xxxxxxx, Xxxx 5,000
Gold, Xxxx X. 6,000
Xxxxxx, Xxxx X. 3,000
Xxxxxx, Xxxx X. 32,500
Xxxxxxxx, Xxxxx X. and Xxxxx X. 5,000
Xxxxxxx, Xxxxx X. and Xxxx X. Jt.Ten. 10,000
Jewish, Home of Cincinnati 500
Jewish Federation of Cincinnati 500
Kalankiewicz, Xxxxxx X. 2,800
Xxxxxx, Xxxxxx (trust) 20,000
Xxxxxx, Xxxxx 8,000
Xxxxxx, Xxxxxx X. 11,000
Xxx Xxxxx Family 21,989
Xxx Xxxxx Charitable Remainder Unitrust 20,000
Xxxxx, Xxxxx X. 3,700
[Xxxx, Xxxxxxx and Xxxx Xx.Ten.] [32,197]
XxXxxxxx, Xxxx 6,000
Xxxxx, Xxxxxx X. 5,486
Xxxxxxx, Xxxxxx X. 13,645
NUMBER OF
NAME SHARES BEING SOLD
---- -----------------
Xxxx, Xxxxxxx 3,000
Papagan, Alex 4,000
Xxxxxxx, Xxxxx 15,312
Xxxxxxxx, Xxxxxx X. 9,341
Xxxxxxx, Xxxxx X. (trust) 7,500
[Xxxxx, Xxxxx] [5,000]
Xxxxxx, W. Xxxxx 7,569
Xxxxxxx, Xxxxxxx 3,000
Xxxxxxx, Xxxx X. 40,000
Xxxxxx, Xxxxx X. 10,000
Xxxxxxx Enterprises 16,695
Xxxxxxxx, Xxxxxxx X. 1,000
Xxxxxxx, Xxxxxx X. 6,977
Zee Corp. 2,000
---------
Total
=========
Annex I
D. Xxxxxxx Xxxxx
Xxxxxxx X. XxXxxxxx
Worldcom, Inc.
Annex II
Premiere Communications, Inc. (FL)
Voice-Tel Enterprises, Inc. (DE)
VTN, Inc. (OH)
Premiere Acquisition Corporation (GA)
Voice-Tel Network Limited Partnership (DE General Partnership)
EBIS Communications, Inc. (GA)
Voice-Tel Canada Limited (Canada)
Voice-Tel Pty Ltd. (Australia & New Zealand)
In-Touch Technologies, Inc. (CA)
Car Zee, Inc. (CA)
VT of Long Island Inc. (NY)
Voice-Net Communications Systems, Inc. (NY)
Xxxxxx-Xxxxx, Inc. (AL)
AudioInfo, Inc. (TX)
Xxxx & Xxxxxx Xxxxxx, Inc. (CA)
MMP Communications, Inc. (CA)
Taft Communications, Inc. (CA)
Voice Partners Company (OH Limited Partnership)
Emjay Enterprises, Inc. (SC)
Program Marketing, Inc. (NC)
Voice Systems of Greater Dayton, Inc. (OH)
BV Communications, Inc. (NC)
Tel-Tek, Inc. (MI)
Service Communications, Inc. (GA)
Voice Mail Services, Inc. (CT)
Houston Telecommunications, Inc. (TX)
Indiana Communicator Incorporated (IN)
Lar-Lin Enterprises, Inc. (KS)
Lar-Lin Investments, Inc. (KS)
Voice-Mail Solutions, Inc. (KS)
Voice-Tel, Inc. (TN)
Inter-Net, Inc. (AK)
Voice Link, Inc. (LA)
Allagash Communications, Inc. (ME)
Stay-In-Touch Technologies, Inc. (CA)
Xxxxxx International, Inc. (MD)
Voice Technology, Inc. (MA)
Gulf States Communications Corporation (AL)
New West Communications, Inc. (NV)
Charp-Tel Enterprises, Inc. (RI)
Rambl Corporation (NH)
Voice-Tel of Northern New Jersey, Inc. (NJ)
DARP, Inc. (NJ)
Voice Telecommunications, Inc. (NY)
Tri-C Communications Corp. (NY)
RGB Enterprises, Inc. (OK)
Voice Message of Northeastern OK, Inc. (OK)
Voice Communications, Inc. (FL)
Interactive Communications Corp. (PA)
Tri-State VMS, Inc. (PA)
Simmoor Corp. (CA)
The Xxxxxx Company (GA)
Voice Management, Inc. (MO)
B & AH of Northwest Florida, Inc. (FL)
E & BH, Inc. (FL)
Voice Tel of South Texas, Inc. (TX)
Xxxxxxxx, Inc. (WV)
X.X. Enterprises-Wisconsin, Inc. (WI)
SKRAWKCAB Corporation (PA)
Xxxxxxxx X. Eil, Inc. (NY)
G. D. Enterprises, Inc. (MI)
Digicall Cellular Corporation (CA)
Digitele Corporation (CA)
Advanced Resource Technologies, Inc. (NY)
Voice-Tel of Oregon, Inc. (OR)
CommTel/USA, Inc. (FL)
WN Communication Systems, Inc. (TN)
Annex III
Significant Subsidiaries
Premiere Communications, Inc. (FL)
Voice-Tel Enterprises, Inc. (DE)
VTN, Inc. (OH)
Premiere Acquisition Corporation (GA)
EXHIBIT A
[FORM OF OPINION OF FCC COUNSEL]
1. The Company has obtained all authorizations, consents and approvals from the
FCC and from state public utility commissions ("PUCs") necessary for the
conduct of its business as described in the Registration Statement. All such
authorizations, consents and approvals have been duly and validly issued and
are in full force and effect and neither the Company, nor any of its
subsidiaries, are in violation of any of the terms an conditions of any such
authorizations, consents or approvals.
2. There is no outstanding adverse judgment, decree or order that has been
issued by the FCC or any state PUC against the Company or any of its
subsidiaries or any action, proceeding or investigation pending or
threatened by the FCC or any state PUC against the Company or its
subsidiaries that would materially and adversely affect the operation of the
Company's business as described in the Registration Statement.
3. The statements in the Registration Statement under the captions "Risk
Factors--_______________" and "Business--_____________," insofar as such
statements purport to describe certain provisions of the Communications Act
and rules and regulations of the FCC promulgated thereunder, have been
reviewed by us and are correct in all material respects.
