<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 27, 1998.
REGISTRATION NO. 333-48985
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
AARON RENTS, INC.
(Exact name of issuer as specified in its charter)
<TABLE>
<S> <C>
GEORGIA 58-0687630
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
309 E. PACES FERRY ROAD
ATLANTA, GEORGIA 30305-2377
(404) 231-0011
(Address, including zip code, and telephone number, including area code, of
issuer's principal executive offices)
KEITH C. GROEN
VICE PRESIDENT, LEGAL AND SECRETARY
AARON RENTS, INC.
309 E. PACES FERRY ROAD, ATLANTA, GEORGIA 30305-2377
(404) 231-0011
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
<TABLE>
<S> <C>
MICHAEL H. TROTTER DAVID M. CARTER
KILPATRICK STOCKTON LLP HUNTON & WILLIAMS
1100 PEACHTREE STREET 951 EAST BYRD STREET
ATLANTA, GEORGIA 30309-4530 RICHMOND, VIRGINIA 23219-4074
TELEPHONE: (404) 815-6500 TELEPHONE: (804) 788-8200
</TABLE>
---------------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
---------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
---------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE COMPANY HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE COMPANY SHALL FILE A
FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
1 -- Form of Underwriting Agreement
4(a) -- Amended and Restated Articles of Incorporation of the
Company, filed as Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996,
which exhibit is by this reference incorporated herein.
4(b) -- Amended and Restated By-Laws of the Company, filed as
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1997, which exhibit is by this
reference incorporated herein.
5 -- Opinion of Kilpatrick Stockton LLP.*
23(a) -- Consent of Ernst & Young LLP.*
23(b) -- Consent of Kilpatrick Stockton LLP (included in Exhibit 5).
24 -- Power of Attorney (set forth on signature page).
</TABLE>
- ---------------
* Previously filed.
II-1
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-3 and has duly caused this Amendment to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Atlanta, State of Georgia, on April 27, 1998.
AARON RENTS, INC.
By: /s/ KEITH C. GROEN
------------------------------------
Keith C. Groen
Vice President
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on the 27th day of April, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chief Executive Officer and Chairman of the
- ----------------------------------------------------- Board of Directors(Principal Executive
R. Charles Loudermilk, Sr. Officer)
* President, Chief Operating Officer and
- ----------------------------------------------------- Director
Robert C. Loudermilk, Jr.
* Vice President, Finance and Director
- ----------------------------------------------------- (Principal Financial Officer)
Gilbert L. Danielson
* Controller
- ----------------------------------------------------- (Principal Accounting Officer)
Robert P. Sinclair, Jr.
Director
- -----------------------------------------------------
Ronald W. Allen
Director
- -----------------------------------------------------
Leo Benatar
* Director
- -----------------------------------------------------
Earl Dolive
Director
- -----------------------------------------------------
J. Rex Fuqua
/s/ KEITH C. GROEN Vice President, Legal and Director
- -----------------------------------------------------
Keith C. Groen
Director
- -----------------------------------------------------
Ingrid Saunders Jones
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director
- -----------------------------------------------------
LTG M. Collier Ross
Director
- -----------------------------------------------------
R.K. Sehgal
By: /s/ KEITH C. GROEN
-------------------------------------------------
Keith C. Groen
Pursuant to Power of Attorney
</TABLE>
II-3
<PAGE> 5
EXHIBIT LIST
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT PAGE
- ------- ---------------------- ----
<C> <C> <S> <C>
1 -- Form of Underwriting Agreement..............................
4(a) -- Amended and Restated Articles of Incorporation of the
Company, filed as Exhibit 3 to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996
which exhibit is by this reference incorporated herein......
4(b) -- Amended and Restated By-Laws of the Company, filed as
Exhibit 3(b) to the Company's Annual Report on Form 10-K for
the year ended December 31, 1997, which exhibit is by this
reference incorporated herein...............................
5 -- Opinion of Kilpatrick Stockton LLP*.........................
23(a) -- Consent of Ernst & Young LLP*...............................
23(b) -- Consent of Kilpatrick Stockton LLP (included in Exhibit
5)..........................................................
24 -- Power of Attorney (set forth on signature page).............
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
2,500,000 SHARES
AARON RENTS, INC.
COMMON STOCK
------------------------------
UNDERWRITING AGREEMENT
------------------------------
WHEAT FIRST SECURITIES, INC.
INTERSTATE/JOHNSON LANE CORPORATION
SUNTRUST EQUITABLE SECURITIES CORPORATION
As Representatives of the Several
Underwriters Named in Schedule I
hereto
c/o Wheat First Securities, Inc.
Riverfront Plaza
901 East Byrd Street
Richmond, Virginia 23219 , 1998
Dear Sirs:
Aaron Rents, Inc., a Georgia corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
2,100,000 shares of Common Stock, $0.50 par value per share, of the Company
("Common Stock") and, at the election of the Underwriters, up to an aggregate of
375,000 additional shares of Common Stock, and R. Charles Loudermilk, Sr., in
his individual capacity, (in such capacity, the "Selling Shareholder"),
proposes, subject to the terms and conditions stated herein, to sell to the
Underwriters an aggregate of 400,000 shares of Common Stock. The aggregate of
2,500,000 shares to be sold by the Company and the Selling Shareholder are
herein called the "Firm Securities," and the aggregate of 375,000 additional
shares to be sold by the Company are herein called the "Optional Securities."
The Firm Securities and the Optional Securities that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively called the "Securities."
<PAGE> 2
1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to, and agrees with, the
Underwriters that:
(i) A registration statement in respect of the Securities on
Form S-3 (File No. 333-48985) under the Securities Act of 1933, as
amended (the "Act"), and as a part thereof a preliminary prospectus, in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission") in the form heretofore delivered
to you, and, excluding exhibits thereto, but including all documents
incorporated by reference in the Prospectus contained therein, to you
for each of the other Underwriters; the Company meets the requirements
for the use of Form S-3 under the Act and such registration statement,
as amended, has been declared effective by the Commission; no other
document with respect to such registration statement (other than those
documents incorporated into such registration statement by reference)
has heretofore been filed with the Commission other than in accordance
with Section 5(a) of this Agreement; and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424 of the
rules and regulations of the Commission under the Act being hereinafter
called a "Preliminary Prospectus", the various parts of such
registration statement, including (i) all exhibits thereto, and
including the information contained in the form of final prospectus
filed with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) of this Agreement and deemed by virtue of
Rule 430A under the Act to be part of the registration statement at the
time it was declared effective, together with any related registration
statement filed with the Commission for registration of a portion of
the Securities, which registration became effective pursuant to Rule
462(b) under the Act, and (ii) the documents incorporated by reference
in the registration statement at the time it was declared effective,
each as amended at the time such part became effective, being herein
called collectively the "Registration Statement," and the final
prospectus, in the form first filed pursuant to Rule 424(b), being
hereinafter called the "Prospectus", provided, that if the Company
elects to rely on Rule 434 under the Act, all references to the
Prospectus shall be deemed to include, without limitation, the form of
prospectus and the abbreviated term sheet, taken together, provided to
the Underwriters by the Company in reliance on Rule 434; any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein
pursuant to Form S-3 under the Act; and the terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), that are deemed to be incorporated by reference in the
Prospectus;
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to
-2-
<PAGE> 3
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters through you
expressly for use therein or by the Selling Shareholder expressly for
use in the preparation of the answers therein to Item 7 of Form S-3;
(iii) Each document incorporated by reference in the
Prospectus when they were filed, or to be filed, with the Commission,
conformed in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as
applicable, and the rules and regulations of the Commission thereunder,
and none of such documents 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;
(iv) The Registration Statement conforms, and the Prospectus
and any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and do not and will not as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto contain 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
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by the
Underwriters through you expressly for use therein or by the Selling
Shareholder expressly for use in the preparation of the answers therein
to Item 7 of Form S-3;
(v) Neither the Company nor any of its subsidiaries, a
complete and correct list of which is attached hereto as Schedule II
(the "Subsidiaries"), has sustained since the date of the latest
audited financial statements included or incorporated by reference in
the Prospectus any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any change in the outstanding capital stock or long-term debt of
the Company or any of the Subsidiaries or any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and the
Subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(vi) The Company and each of its Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all material items of personal property owned by
them, in each case free and clear of all liens, encumbrances
-3-
<PAGE> 4
and defects except such as are described in the Prospectus or such as
do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by
the Company and the Subsidiaries; and any real property and buildings
held under lease by the Company or any of the Subsidiaries are held by
it under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company or such
Subsidiaries;
(vii) The Company and each of its Subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, with
power and authority (corporate and other) to own or lease their
respective properties and conduct their respective businesses as
described in the Prospectus, and each has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not result
in a material adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the Company or the
Company and the Subsidiaries taken as a whole;
(viii) The Company has an authorized capitalization as set
forth in the Prospectus under the term "Capitalization" and otherwise;
all of the issued shares of capital stock of the Company have been duly
and validly authorized and issued, are fully paid and nonassessable and
conform to the description of the capital stock of the Company
contained in the Prospectus; there are no preemptive or other similar
rights to subscribe for or to purchase any securities of the Company;
except as described in the Prospectus, there are no warrants, options
or other rights to purchase any securities of the Company; neither the
filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any securities of the Company
with respect to such filing, offering or sale;
(ix) All of the issued and outstanding shares of capital
stock of each of the Subsidiaries have been duly and validly authorized
and issued and are fully paid and nonassessable; and except otherwise
set forth in the Prospectus, all outstanding shares of capital stock of
each of the Subsidiaries are directly owned by the Company free and
clear of any perfected security interest and any other security
interests, claims, liens or encumbrances;
(x) The Securities have been duly and validly authorized
and, when issued and delivered against payment therefor as provided
herein, will be duly and validly issued and fully paid and
nonassessable and will conform to the description of the Securities
contained in the Prospectus as amended or supplemented;
(xi) The issue and sale of the Securities by the Company and
the performance of this Agreement and the consummation by the Company
of the other transactions herein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the
-4-
<PAGE> 5
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the Articles of Incorporation or By-laws of the Company (each as
amended to date the "Charter" and "Bylaws," respectively) or the
Articles of Incorporation or bylaws of any of the Subsidiaries or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries or any of its or their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of
the transactions contemplated by this Agreement, except such as may be
required under the Act and such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters and the clearance of
such offering with the National Association of Securities Dealers,
Inc.;
(xii) There are no legal or governmental proceedings pending
to which the Company or any of its Subsidiaries is a party or of which
any property of the Company or any of its Subsidiaries is the subject,
which, if determined adversely to the Company or any of the
Subsidiaries, would individually or in the aggregate, have a material
adverse effect on the consolidated financial position, shareholders'
equity or results of operations of the Company or of the Company and
the Subsidiaries taken as a whole and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or by others;
(xiii) Ernst & Young LLP who have certified certain financial
statements of the Company and the Subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xiv) All employee benefit plans (as defined in Section 3(3)
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) established, maintained or contributed to by the Company or
any of the Subsidiaries comply in all material respects with the
requirements of ERISA and no employee pension benefit plan (as defined
in Section 3(2) of ERISA) has incurred or assumed an "accumulated
funding deficiency" within the meaning of Section 302 of ERISA or has
incurred or assumed any material liability (other than for the payment
of premiums) to the Pension Benefit Guaranty Corporation;
(xv) The consolidated financial statements of the Company
and the Subsidiaries, together with related notes, as set forth in the
Registration Statement present fairly the consolidated financial
position and the results of operations of the Company and the
Subsidiaries at the indicated dates and for the indicated periods; such
financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied throughout the
periods presented except as noted in the notes thereon, and all
adjustments necessary for a fair presentation of results for such
periods have been made; and the selected financial information included
in the Prospectus presents
-5-
<PAGE> 6
fairly the information shown therein and has been compiled on a basis
consistent with the financial statements presented therein;
(xvi) Neither the Company nor any of the Subsidiaries is in
violation of any international, federal or state law, regulation, or
treaty relating to the storage, handling, transportation, treatment or
disposal of hazardous substances (as defined in 42 U.S.C. Section 9601)
or hazardous materials (as defined by any international, federal or
state law or regulation) or other waste products, which violation is
reasonably likely to result in a material adverse effect on the
financial condition or business operations or properties of the Company
and the Subsidiaries taken as a whole, and the Company and each of the
Subsidiaries have received all material permits, licenses or other
approvals as may be required of them under applicable international,
federal and state environmental laws and regulations to conduct their
business as described in the Prospectus; and the Company and each of
the Subsidiaries are in compliance in all material respects with the
terms and conditions of any such permit, license or approval; neither
the Company nor any of the Subsidiaries has received any notices or
claims that it is a responsible party or a potentially responsible
party in connection with any claim or notice asserted pursuant to 42
U.S.C. Section 9601 et seq. or any state superfund law; and the
disposal by the Company or any Subsidiary of any of the Company's and
each Subsidiary's hazardous substances, hazardous materials and other
waste products has been lawful;
(xvii) No relationship, direct or indirect, exists between or
among the Company or any of the Subsidiaries, on the one hand, and the
directors, officers, shareholders, customers or suppliers of the
Company or any of the Subsidiaries on the other hand, that is required
by the Act or the Exchange Act, or by the rules and regulations under
either of such Acts to be described in the Registration Statement and
the Prospectus or documents incorporated by reference therein that is
not so described;
(xviii) The Company and each of the Subsidiaries have filed
all federal, state and foreign income, franchise and excise tax returns
which have been required to be filed (or have received an extension
with respect thereto), and have paid or made adequate reserves for, all
taxes indicated by said returns and all assessments received by them to
the extent that such taxes have become due and are not being contested
in good faith; to the best knowledge of the Company there is no tax
deficiency that has been or might be asserted against the Company that
would have a material adverse effect on the business, properties,
financial condition, earnings or results of operations of the Company
and the Subsidiaries taken as a whole;
(xix) Neither the Company nor any of the Subsidiaries has
taken and none of such entities will take, directly or indirectly, any
action that is designed to or that has constituted or that might
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities;
(xx) The Securities have been approved for listing, subject
to notice of issuance, on the New York Stock Exchange;
-6-
<PAGE> 7
(xxi) The Company and each of the Subsidiaries holds and are
operating in compliance, in all material respects, with all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of their respective businesses as presently
being conducted ("licenses"), and the Company, and each of the
Subsidiaries are in compliance, in all material respects, with all
laws, regulations, orders and decrees applicable to them except where
the failure to be in compliance would not have a material adverse
effect on the Company and the Subsidiaries taken as a whole;
(xxii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary, to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences;
(xxiii) There is no document or contract of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
which is not described or filed as required.
(xxiv) The conditions for use of registration statements on
Form S-3 by the Company set forth in the General Instructions on Form
S-3 have been satisfied and the Company is entitled to use such form
for the transaction contemplated herein; and
(xxv) This Agreement has been duly authorized, executed and
delivered by the Company.
(b) The Selling Shareholder represents and warrants to, and agrees
with, the Underwriters and the Company that:
(i) No consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation
of the transactions contemplated by this Agreement in connection with
the execution and delivery by the Selling Shareholder of this Agreement
and for the sale and delivery of the Securities to be sold by the
Selling Shareholder hereunder, except such as may be required under the
Act or state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters and the
clearance of such offering with the National Association of Securities
Dealers, Inc.; and the Selling Shareholder has full right, power and
authority to enter into this Agreement and to sell, assign, transfer
and deliver the Securities to be sold by him hereunder;
(ii) The sale of the Securities to be sold by the Selling
Shareholder hereunder and the performance of this Agreement and the
consummation by the Selling Shareholder
-7-
<PAGE> 8
of the transactions herein contemplated will not conflict with or
result in a breach or violation of any terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed of
trust, loan agreement, guarantee or other agreement or instrument to
which he is a party or by which he is bound or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over him or his property;
(iii) At such Delivery Date (as hereinafter defined), the
Selling Shareholder will have good and valid title to the Securities to
be sold by him hereunder, free and clear of all liens, encumbrances,
equities or claims; and, upon delivery of such Securities and payment
therefor pursuant hereto, good and valid title to all of such
Securities, free and clear of all liens, encumbrances, equities or
claims, will pass to the Underwriters;
(iv) No offering, sale or other disposition of any equity
securities of the Company (or any securities convertible into or
exercisable for equity securities of the Company) will be made within
120 days after the date of the Prospectus, directly or indirectly, by
the Selling Shareholder, otherwise than hereunder or with your written
consent, or pursuant to bona fide gifts to persons who agree in writing
with him to be bound by the provisions of this clause;
(v) The Selling Shareholder has not taken and will not
take, directly or indirectly, any action which is designed to or which
has constituted 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 Securities;
(vi) The Selling Shareholder is familiar with the
Registration Statement and the Prospectus and verifies that the
information set forth therein respecting him is true and complete and
that he knows of no material adverse information with respect to the
current and prospective business operations of the Company and the
Subsidiaries that is not disclosed in the Prospectus;
(vii) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982, as amended, with respect to the
transactions herein contemplated, the Selling Shareholder agrees to
deliver to you prior to or at the First Delivery Date (as hereinafter
defined) a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof);
(viii) The Selling Shareholder specifically agrees that the
Securities are subject to the interests of the Underwriters hereunder.
The Selling Shareholder agrees that its obligations hereunder shall not
be terminated by operation of law, whether by death or incapacity,
liquidation or dissolution, or by the occurrence of any other event
that is not by the terms of this Agreement a condition to the Selling
Shareholder's obligations hereunder;
(ix) This Agreement has been duly executed and delivered by
or on behalf of the Selling Shareholder; and
-8-
<PAGE> 9
(x) The Selling Shareholder does not believe that any of
the representations and warranties of the Company contained in Section
1(a) hereof are not true and correct in all material respects.
2. PURCHASE AND SALE.
Subject to the terms and conditions herein set forth, (a) the Company
and the Selling Shareholder, severally and not jointly, agree to sell to the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and the Selling Shareholder, at a purchase price per
share of $ , the number of Firm Securities to be purchased by such Underwriter
as set forth opposite the name of such Underwriter in Schedule I hereto and (b)
in the event and to the extent that the Underwriters shall exercise the election
to purchase Optional Securities as provided below, the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in clause
(a) of this Section 2, that portion of the number of Optional Securities as to
which such election shall have been exercised (to be adjusted by you so as to
eliminate fractional securities) determined by multiplying such number of
Optional Securities by a fraction, the numerator of which is the maximum number
of Optional Securities that such Underwriter is entitled to purchase as set
forth opposite the name of such Underwriter in Schedule I hereto, and the
denominator of which is the maximum number of the Optional Securities that all
of the Underwriters are entitled to purchase.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 375,000 Optional Securities, at the purchase price per
share set forth in the paragraph above, for the sole purpose of covering
over-allotments in the sale of the Firm Securities. Any Optional Securities
purchased by the Underwriters shall be purchased from the Company. Any such
election to purchase Optional Securities may be exercised no more than once by
written notice from you to the Company, given within a period of 30 days after
the date of this Agreement, setting forth the aggregate amount of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by you but in no event earlier than the First
Delivery Date (as defined in Section 4 hereof) or, unless you otherwise agree in
writing, earlier than two or later than 10 business days after the date of such
notice.
3. OFFERING BY THE UNDERWRITERS.
Upon the authorization by you of the release of the Firm Securities,
the several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4. DELIVERY AND PAYMENT.
Certificates in definitive form for the Securities to be purchased by
each Underwriter hereunder, and in such denominations and registered in such
names as Wheat First Securities, Inc. may request upon at least two business
days' prior notice to the Company or the Selling Shareholder, as applicable,
shall be delivered by or on behalf of the Company and the Selling Shareholder to
you for the account of each Underwriter, against payment by such Underwriter or
-9-
<PAGE> 10
on its behalf of the purchase price therefor. Payment of the purchase price for
the Securities shall be made by wire transfer of immediately available funds,
all at the offices of Wheat First Securities, Inc., Riverfront Plaza, 901 E.
Byrd Street, Richmond, Virginia 23219. The time and date of such delivery and
payment shall be, with respect to the Firm Securities, 10:00 a.m., Richmond,
Virginia time, on __________ __, 1998 or at such other time and date as you and
the Company may agree upon in writing, and, with respect to the Optional
Securities, 10:00 a.m., Richmond, Virginia time, on the date specified by you in
the written notice given by you (consistent with Section 2 hereof) of the
Underwriters' election to purchase such Optional Securities, or at such other
time and date as you and the Company may agree upon in writing. Such time and
date for delivery of the Firm Securities is herein called the "First Delivery
Date," such time and date for delivery of the Optional Securities, if not the
First Delivery Date, is herein called the "Second Delivery Date," and each such
time and date for delivery is herein called a "Delivery Date." Such certificates
will be made available for checking and packaging at least 24 four hours prior
to each Delivery Date at the offices of Wheat First Securities, Inc., Riverfront
Plaza, 901 E. Byrd Street, Richmond, Virginia 23219 or such other location
designated by the Underwriters to the Company and the Selling Shareholder.
5. AGREEMENTS OF THE COMPANY.
The Company agrees with the Underwriters:
(a) To prepare the Prospectus in a form reasonably approved by you and
to file such Prospectus (or a term sheet as permitted by Rule 434(c)) pursuant
to Rule 424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no amendment or supplement to the Registration
Statement or Prospectus prior to any Delivery Date which shall be reasonably
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the Commission
subsequent to the date of the Prospectus and for so long as the delivery of a
Prospectus is required in connection with the offering or sale of the
Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, of any request by the Commission for the amending or supplementing of
the Registration Statement or Prospectus or for additional information and, in
the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such actions as you may
reasonably request to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings
-10-
<PAGE> 11
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Registration
Statement and the Prospectus in such quantities as you may from time to time
reasonably request during such period following the date hereof that a
prospectus is required to be delivered in connection with offers or sales of
Securities, and, if the delivery of a prospectus is required during this period
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such period to amend or supplement the
Prospectus to comply with the Act, to notify you and upon your request to file
such document and to prepare and furnish without charge to you and to any dealer
in securities as many copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) As soon as practicable after the effective date of the Registration
Statement, to make generally available to its shareholders and to deliver to
you, an earnings statement of the Company, conforming with the requirements of
Section 11(a) of the Act and Rule 158 under the Act, covering a period of at
least 12 months beginning after the effective date of the Registration
Statement;
(e) For a period of 120 days from the date of the Prospectus, not to
offer, sell, contract to sell or otherwise dispose of any securities of the
Company (other than the Securities or pursuant to employee stock option plans or
pursuant to options, warrants or rights outstanding on the date of this
Agreement or pursuant to bona fide gifts to persons who agree in writing with
the donor to be bound by this restriction), without your prior written consent;
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
such additional information concerning the business and financial condition of
the Company as you may from time to time reasonably request; and
(g) To apply the net proceeds from the sale of the Securities for the
purposes set forth in the Prospectus.
6. PAYMENT OF EXPENSES.
The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all
-11-
<PAGE> 12
other expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers, provided, however, that with respect to
filing fees paid to the Commission in connection with the registration of
Securities under the Act, the Company shall pay only the portion of such fees
attributable to the Securities offered by the Company; (ii) the cost of printing
or reproducing any Agreement Among Underwriters, this Agreement, the Blue Sky
Survey and any other documents in connection with the offering, purchase, sale
and delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky Survey, provided, however, that with respect to any
filing fees paid to any state regulatory authority, the Company shall pay only
the portion of such fees attributable to Securities offered by the Company; (iv)
the portion of any filing fees incident to securing any required review by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Securities that is attributable to the Securities offered by the
Company; (v) the cost of preparing stock certificates; (vi) the costs or
expenses of any transfer agent or registrar; and (vii) all other costs and
expenses incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. The Selling Shareholder
covenants and agrees with the several Underwriters that he will pay or cause to
be paid his pro rata portion of any filing fees attributable to the Securities
offered by him (i) paid to the Commission in connection with the registration of
the Securities under the Act; (ii) paid to any state or regulatory authority in
connection with the qualification of the Securities for offering and sale under
state securities laws as provided in Section 5(b) hereof; and (iii) paid to the
NASD in connection with its required review of the terms of the sale of the
Securities. It is understood, however, that except as provided in this Section,
Section 8 and Section 11 hereof, the Underwriters will pay all of their own
costs and expenses, including the fees of their counsel, stock transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. CONDITIONS TO OBLIGATIONS OF UNDERWRITERS.
The obligations of the Underwriters hereunder, as to the Securities to
be delivered at each Delivery Date, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholder herein are, at and as of such
Delivery Date, true and correct, and the condition that the Company and the
Selling Shareholder shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 5(a) of this Agreement; no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
-12-
<PAGE> 13
(b) Hunton & Williams, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Delivery Date, with
respect to the incorporation of the Company, the validity of the Securities
being issued at such Delivery Date, the Registration Statement, the Prospectus,
and other related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Kilpatrick Stockton LLP, counsel for the Company, shall have
furnished to you their written opinion, dated such Delivery Date, in form and
substance reasonably satisfactory to you, to the effect set forth in Exhibit A
attached hereto.
(d) Kilpatrick Stockton LLP, counsel for the Selling Shareholder, shall
have furnished to you its written opinion with respect to the Selling
Shareholder, dated such Delivery Date, in form and substance reasonably
satisfactory to you, to the effect set forth in Exhibit B attached hereto.
(e) At 10:00 a.m., Atlanta, Georgia time, on the date of this Agreement
and the effective date of the most recently filed post-effective amendment to
the Registration Statement and also at each Delivery Date, Ernst & Young shall
have furnished to you a letter or letters, dated the respective date of delivery
thereof, in form and substance reasonably satisfactory to you, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information relating to the Company and its Subsidiaries
contained in the Registration Statement and the Prospectus;
(f) (i) Neither the Company nor any of the Subsidiaries shall have
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with their
business taken as a whole from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus, and (ii) since the respective dates as of which information is given
in the Prospectus there shall not have been any change in the outstanding
capital stock or long-term debt of the Company or any of the Subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and the Subsidiaries taken as a whole otherwise
than as set forth or contemplated in the Prospectus, the effect of which, in any
such case described in clause (i) or (ii) is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Securities being delivered at such
Delivery Date on the terms and in the manner contemplated by the Prospectus;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading of any of the
securities of the Company on the New York Stock Exchange or the National
Association of Securities Dealers, Inc. Automated Quotation System; (ii) a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange; (iii) a general moratorium on commercial banking activities
in New York or Georgia declared by either federal or New York or Georgia
authorities; (iv) the declaration by the
-13-
<PAGE> 14
United States of a national emergency or war, if any such event specified in
this clause (iv) would have such a materially adverse effect, in your reasonable
judgment, as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Delivery Date
on the terms and in the manner contemplated in the Prospectus; or (v) such a
material adverse change in general economic, political, financial or
international conditions affecting financial markets in the United States having
a material adverse impact on trading prices of securities in general, as, in
your reasonable judgment, makes it inadvisable to proceed with the payment for
and delivery of the Securities;
(h) The Company shall have furnished to you copies of agreements
between the Company and the directors and executive officers of the Company
specified by you, in form and content reasonably satisfactory to you, pursuant
to which such persons agree not to offer, sell, or contract to sell, or
otherwise dispose of, any equity securities of the Company beneficially owned by
them or any securities convertible into, or exchangeable for, equity securities
of the Company, on or before the 120th day after the date of this Agreement
without your prior written consent or pursuant to bona fide gifts to persons who
agree in writing with them to be bound by such restrictions; and
(i) The Company and the Selling Shareholder shall have furnished or
caused to be furnished to you at such Delivery Date certificates of officers of
the Company and the Selling Shareholder reasonably satisfactory to you as to the
accuracy of the respective representations and warranties of the Company and the
Selling Shareholder herein at and as of such Delivery Date, as to the
performance by the Company and the Selling Shareholder of all of their
respective obligations hereunder to be performed at or prior to such Delivery
Date, as to the matters set forth in subsections (a) and (f) of this Section and
as to such other matters as you may reasonably request.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will promptly reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating, preparing to defend or defending, or appearing as a
third-party witness in connection with, any such action or claim; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or Prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by the Underwriters through you expressly
for use therein.
-14-
<PAGE> 15
(b) Subject to subsection (f) of this Section, the Selling Shareholder
will indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
promptly reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating, preparing to
defend or defending, or appearing as a third-party witness in connection with,
any such action or claim; provided, however, that the Selling Shareholder shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information furnished
to the Company by the Underwriters through you expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the Company and
the Selling Shareholder against any losses, claims, damages or liabilities to
which the Company or the Selling Shareholder may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through you expressly for use
therein; and will reimburse the Company and the Selling Shareholder for any
legal or other expenses reasonably incurred by the Company and the Selling
Shareholder in connection with investigating, preparing to defend or defending,
or appearing as third-party witness in connection with, any such action or
claim. The Company and the Selling Shareholder acknowledge that the statements
set forth in the last paragraph of the cover page, the last paragraph on the
inside front cover page and the first, second, third, seventh and eighth
paragraphs under the heading "Underwriting" in the Preliminary Prospectus and
the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in the Preliminary Prospectus
or the Prospectus, and you, as the Representatives, confirm that such statements
are correct.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any
-15-
<PAGE> 16
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have been advised by counsel that representation of such
indemnified party and the indemnifying party may be inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, the indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. It is understood that the indemnifying party
shall, in connection with any such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys together with appropriate local counsel at
any time for all indemnified parties unless such firm of attorneys shall have
reasonably concluded that one or more indemnified parties has actual differing
interests with any other indemnified party. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable for any settlement entered
into without its written consent and will not be liable to such indemnified
party under this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). Notwithstanding the immediately preceding sentence and the first
sentence of this paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Selling Shareholder on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (d) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is
-16-
<PAGE> 17
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Shareholder on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (after
deducting the total underwriting discount, but before deducting expenses)
received by the Company and the Selling Shareholder bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Shareholder on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, the Selling
Shareholder and the Underwriters agree that it would not be just and equitable
if contributions pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (e). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations under this subsection (e) are
several in proportion to their respective underwriting obligations and not
joint.
(f) The liability of the Selling Shareholder under this Section 8 shall
be limited to an amount equal to the initial public offering price less the
underwriting discount of the Securities sold by the Selling Shareholder to the
Underwriters.
(g) The obligations of the Company and the Selling Shareholder under
this Section 8 shall be in addition to any liability which the Company and the
Selling Shareholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each person, if any, who controls the Company
within the meaning of the Act.
-17-
<PAGE> 18
9. DEFAULT OF UNDERWRITERS.
(a) If any Underwriter shall default in its obligation to purchase the
Securities that it has agreed to purchase hereunder at a Delivery Date, you may
in your discretion arrange for you or another party or other parties to purchase
such Securities on the terms contained herein. If within 36 hours after such
default by any Underwriter you do not arrange for the purchase of such
Securities, then the Company and the Selling Shareholder shall be entitled to a
further period of 36 hours within which to procure another party or other
parties satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Shareholder that you have so arranged for the purchase of such
Securities, or the Company and the Selling Shareholder notify you that they have
so arranged for the purchase of such Securities, you or the Company and the
Selling Shareholder shall have the right to postpone such Delivery Date for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus which in your
opinion, exercised in consultation with Hunton & Williams, may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Shareholder as provided in subsection (a) above, the aggregate
number of such Securities that remains unpurchased does not exceed one-eleventh
of the aggregate number of all the Securities to be purchased at such Delivery
Date, then the Company and the Selling Shareholder shall have the right to
require each non-defaulting Underwriter to purchase the number of Securities
that such Underwriter agreed to purchase hereunder at such Delivery Date and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Securities that such Underwriter agreed to
purchase hereunder at such Delivery Date) of the share of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company
and the Selling Shareholder as provided in subsection (a) above, the aggregate
number of such Securities which remains unpurchased exceeds one-eleventh of the
aggregate number of all the Securities to be purchased at such Delivery Date, or
if the Company and the Selling Shareholder shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to the Second Delivery Date, the obligation of the
Underwriters to purchase and of the Company to sell the Optional Securities)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriters or the Company and the Selling Shareholder, except for the expenses
to be borne by the Company and the Selling Shareholder and the Underwriters as
provided in Section 6 hereof and the indemnity and contribution agreements in
Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
-18-
<PAGE> 19
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE.
The respective indemnities, agreements, representations, warranties and
other statements of the Company, the Selling Shareholder and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation (or any statement as to the results thereof) made by or on behalf
of the Underwriters or any controlling person of any Underwriter, or the Company
or any of the Selling Shareholder, or any officer or director or controlling
person of the Company, and shall survive delivery of and payment for the
Securities.
11. TERMINATION AND PAYMENT OF EXPENSES.
If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company and the Selling Shareholder shall not then be under any liability to any
Underwriter except as provided in Section 6 and Section 8 hereof; but if for any
other reason any Securities are not delivered by or on behalf of the Company or
the Selling Shareholder as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Company and the Selling Shareholder shall then be under no
further liability to any Underwriter except as provided in Section 6 and Section
8 hereof.
12. NOTICES.
In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
reliable courier, first-class mail, telex or facsimile transmission to Wheat
First Securities, Inc., at Riverfront Plaza, 901 East Byrd Street, Richmond,
Virginia 23219, Attention: Corporate Finance Department; if to the Selling
Shareholder or the Company shall be sufficient in all respects if delivered or
sent by reliable courier, first-class mail, telex, or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
R. Charles Loudermilk, Sr. with a copy (which shall not constitute notice) to
Kilpatrick Stockton LLP; provided, however, that any notice to any Underwriter
pursuant to Section 8 hereof shall be delivered or sent by reliable courier,
first-class mail, telex or facsimile transmission to such Underwriter at its
address set forth in the Underwriters' Questionnaire, which address will be
supplied to the Company or the Selling Shareholder by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
-19-
<PAGE> 20
13. SUCCESSORS.
This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Selling Shareholder and the Company and, to the extent
provided in Sections 8 and 10 hereof, the officers and directors of the Company
and the Selling Shareholder and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. TIME OF THE ESSENCE.
Time shall be of the essence in this Agreement.
15. BUSINESS DAY.
As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. APPLICABLE LAW.
This Agreement shall be construed in accordance with the laws of the
State of New York.
17. CAPTIONS.
The captions included in this Agreement are included solely for
convenience of reference and shall not be deemed to be a part of this Agreement.
18. COUNTERPARTS.
This Agreement may be executed by any one or more of the parties in any
number of counterparts, each of which shall be deemed to be an original, but all
such counterparts shall together constitute one and the same instrument.
19. PRONOUNS.
All pronouns used herein shall be deemed to refer to the masculine,
feminine or neuter gender as the context requires.
-20-
<PAGE> 21
If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
among each of the Underwriters, the Company and the Selling Shareholder. It is
understood that your acceptance of this Agreement on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement Among
Underwriters, the form of which will be submitted to the Company and the Selling
Shareholder for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
AARON RENTS, INC.
By:
-------------------------------------
Name:
Title:
R. CHARLES LOUDERMILK, SR., in his
individual capacity
By:
-------------------------------------
Accepted as of the date hereof
at Richmond, Virginia:
WHEAT FIRST SECURITIES, INC.
INTERSTATE/JOHNSON LANE CORPORATION
SUNTRUST EQUITABLE SECURITIES CORPORATION
Representatives of the Underwriters
By: WHEAT FIRST SECURITIES, INC.
By:
--------------------------------------
Name: Bruce Durkee
Title: Managing Director
-21-
<PAGE> 22
SCHEDULE I
<TABLE>
<CAPTION>
OPTIONAL
SECURITIES
TO BE PURCHASED
FIRM SECURITIES IF MAXIMUM
UNDERWRITER TO BE PURCHASED OPTION EXERCISED
- ----------- --------------- ----------------
<S> <C> <C>
Wheat First Securities, Inc.
Interstate/Johnson Lane Corporation
SunTrust Equitable Securities Corporation
------------- -----------
Total.......................................
============= ===========
</TABLE>
<PAGE> 23
SCHEDULE II
SUBSIDIARIES OF AARON RENTS, INC.
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY STATE OR COUNTRY OF INCORPORATION
- ------------------ ---------------------------------
<S> <C>
Aaron Investment Company Delaware
</TABLE>
B-1
