<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1996
REGISTRATION NO. 333-07087
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
WORLD ACCESS, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 65-0044209
(State or other jurisdiction of incorporation or (IRS Employer Identification Number)
organization)
</TABLE>
4501 VINELAND ROAD, ORLANDO, FLORIDA 32811
(407) 843-7031
(Address and telephone number of Registrant's principal executive offices)
MARK A. GERGEL
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
WORLD ACCESS, INC.
4501 VINELAND ROAD
ORLANDO, FLORIDA 32811
(407) 843-7031
(Name, address and telephone number of agent for service)
---------------------
COPIES OF ALL COMMUNICATIONS, INCLUDING ALL COMMUNICATIONS SENT TO THE AGENT FOR
SERVICE, SHOULD BE SENT TO:
<TABLE>
<S> <C>
STEVEN E. FOX, ESQ. DAVID M. CARTER, ESQ.
ROGERS & HARDIN HUNTON & WILLIAMS
2700 INTERNATIONAL TOWER, PEACHTREE CENTER RIVERFRONT PLAZA, EAST TOWER
229 PEACHTREE STREET, N.E. 951 EAST STREET
ATLANTA, GEORGIA 30303 RICHMOND, VIRGINIA 23219
(404) 522-4700 (804) 788-8200
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of this Registration Statement.
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, 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, please 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 number of the earlier effective registration statement for the same
offering. / /
---------------
If the delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
---------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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.
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<PAGE> 2
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be paid in connection with
the issuance and distribution of the securities being registered hereby, other
than underwriting discounts and commissions, and all such expenses will be borne
by the Registrant. All amounts are estimates except for the SEC registration fee
and the NASD filing fee. It is estimated that the Registrant will incur the
following expenses in connection with the offering of the securities being
registered.
<TABLE>
<S> <C>
SEC Registration Fee.............................................................. $ 16,751
NASD Filing Fee................................................................... 5,358
Nasdaq National Market Listing Fee................................................ 17,500
Accounting Fees and Expenses...................................................... 85,000
Blue Sky Fees and Expenses........................................................ 5,000
Legal Fees and Expenses........................................................... 125,000
Printing and Mailing Expenses..................................................... 75,000
Transfer Agent Fees and Expenses.................................................. 5,000
Miscellaneous Expenses............................................................ 50,391
--------
Total................................................................... $385,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102 of the Delaware General Corporation Law ("DGCL") allows a
corporation to eliminate or limit the personal liability of directors of a
corporation to the corporation or to any of its stockholders for monetary
damages for a breach of fiduciary duty as a director, except (i) for breach of
the director's duty of loyalty, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
certain unlawful dividends and stock repurchases, or (iv) for any transaction
from which the director derived an improper personal benefit.
Section 145 of the DGCL provides that in the case of any action other than
one by or in the right of the corporation, a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
in such capacity on behalf of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful.
Section 145 of the DGCL provides that in the case of an action by or in the
right of a corporation to procure a judgment in its favor, a corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any action or suit by reason of the fact that such person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation in such capacity on behalf of another corporation
or enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted under standards similar to those set forth in the
proceeding paragraph, except that no indemnification may be made in respect of
any action or claim as to which such person shall have been adjudged to be
liable to the corporation unless a court determines that such person is fairly
and reasonably entitled to indemnification.
Articles VIII and IX of the Company's Restated Certificate of
Incorporation, as amended, provides for indemnification of directors, officers
and employees to the fullest extent permissible under the DGCL.
II-1
<PAGE> 3
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
- ------- -----------------------------------------------------------------------------------
<C> <S> <C>
1.1 -- Form of Underwriting Agreement.*
4.1 -- Restated Certificate of Incorporation of the Registrant and Amendment to Restated
Certificate of Incorporation incorporated herein by reference to the Registrant's
Registration Statement on Form S-18, Registration No. 33-41255-1, Exhibits 2 and
2.1, respectively, and Second Amendment to Restated Certificate of Incorporation
incorporated herein by reference to Exhibit 3.2 to the Registrant's Form 10-K for
the year ended December 31, 1992.
4.1-1 -- Third Amendment to Restated Certificate of Incorporation, incorporated herein by
reference to Exhibit 4.1-1 to the Registrant's Amendment No. 1 to its Registration
Statement on Form S-2, Registration No. 33-87026.
4.1-2 -- Certificate of Amendment to Restated Certificate of Incorporation, as amended.
4.2 -- Copy of Bylaws of the Registrant, as amended, incorporated herein by reference to
Registrant's Registration Statement on Form S-18 Registration, No. 33-41255-A,
Exhibit 3 and First Amendment to Bylaws incorporated herein by reference to Exhibit
3.4 to the Registrant's Form 10-K for the year ended December 31, 1992.
5.1 -- Opinion and Consent of Rogers & Hardin.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Tedder, Grimsley & Company, P.A.
24 -- Power of attorney (Included in the Signature Pages Hereto).
</TABLE>
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* Filed herewith.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 15, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer of controlling
person of the Registrant in the successful defense of any action, suit or
proceedings) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
II-2
<PAGE> 4
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Registrant 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 the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in Orlando, Florida, on
this 23rd day of September, 1996.
WORLD ACCESS, INC.
By: /s/ STEVEN A. ODOM
------------------------------------
Steven A. Odom
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act, this Amendment to the
Registration Statement of World Access, Inc. has been signed below by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------------- -------------------
<C> <S> <C>
/s/ STEVEN A. ODOM Chairman of the Board and September 23, 1996
- --------------------------------------------- Chief Executive Officer
Steven A. Odom
* Vice President and Chief September 23, 1996
- --------------------------------------------- Financial Officer
Mark A. Gergel (Principal Financial
Officer)
* Director and President September 23, 1996
- --------------------------------------------- (Chief Operating Officer)
Hensley E. West
* Controller and Secretary September 23, 1996
- --------------------------------------------- (Principal Accounting
Martin D. Kidder Officer)
* Director September 23, 1996
- ---------------------------------------------
Stephen J. Clearman
* Director September 23, 1996
- ---------------------------------------------
William P. O'Reilly
* Director September 23, 1996
- ---------------------------------------------
John D. Phillips
* Director September 23, 1996
- ---------------------------------------------
Stephen E. Raville
*By: /s/ STEVEN A. ODOM
- ---------------------------------------------
Steven A. Odom,
as Attorney-in-Fact
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIALLY
NUMBER DESCRIPTION OF EXHIBITS NUMBERED PAGE
- ------ ----------------------------------------------------------------------- -------------
<C> <C> <S> <C>
1.1 -- Form of Underwriting Agreement.*
4.1 -- Restated Certificate of Incorporation of the Registrant and Amendment
to Restated Certificate of Incorporation incorporated herein by
reference to the Registrant's Registration Statement on Form S-18,
Registration No. 33-41255-1, Exhibits 2 and 2.1, respectively, and
Second Amendment to Restated Certificate of Incorporation incorporated
herein by reference to Exhibit 3.2 to the Registrant's Form 10-K for
the year ended December 31, 1992.
4.1-1 -- Third Amendment to Restated Certificate of Incorporation, incorporated
herein by reference to Exhibit 4.1-1 to the Registrant's Amendment No.
1 to its Registration Statement on Form S-2, Registration No. 33-87026.
4.1-2 -- Certificate of Amendment to Restated Certificate of Incorporation, as
amended.
4.2 -- Copy of Bylaws of the Registrant, as amended, incorporated herein by
reference to Registrant's Registration Statement on Form S-18
Registration, No. 33-41255-A, Exhibit 3 and First Amendment to Bylaws
incorporated herein by reference to Exhibit 3.4 to the Registrant's
Form 10-K for the year ended December 31, 1992.
5.1 -- Opinion and Consent of Rogers & Hardin.
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Tedder, Grimsley & Company, P.A.
24 -- Power of attorney (Included in the Signature Pages Hereto).
</TABLE>
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* Filed herewith.
<PAGE> 1
WORLD ACCESS, INC.
COMMON STOCK
-------------
UNDERWRITING AGREEMENT
September __, 1996
THE ROBINSON-HUMPHREY COMPANY, INC.
WHEAT, FIRST SECURITIES, INC.
INTERSTATE/JOHNSON LANE CORPORATION
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o The Robinson-Humphrey Company, Inc.
3333 Peachtree Road, N.E.
Atlanta, Georgia 30326
Ladies and Gentlemen:
World Access, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I (the "Underwriters") an aggregate of 3,000,000
shares of common stock, par value $.01 per share (the "Common Stock"), of the
Company, and the stockholders of the Company named in Schedule II (the "Selling
Stockholders") propose, subject to the terms and conditions stated herein, to
sell to the Underwriters an aggregate of 1,000,000 shares of Common Stock (such
4,000,000 shares are collectively called the "Firm Shares") as set forth in
Schedule II, and at the election of the Underwriters, subject to the terms and
conditions stated herein, the Company proposes to sell to the Underwriters up
to 600,000 additional shares of Common Stock (the "Optional Shares") (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof are collectively called the "Shares"). References to
"Common Stock" herein are to the Common Stock of the Company authorized by the
Restated Certificate of Incorporation of the Company, as amended through the
date hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(i) A registration statement on Form S-3 (File No.
333-07087) with respect to the Shares, including a prospectus subject
to completion, has been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"), and one or more amendments to such
registration statement may have been so filed. After the execution of
this Agreement, the Company will file with the Commission either (A)
if such registration statement, as it may have been amended, has
become effective under
<PAGE> 2
the Act, either (1) if the Company relies on Rule 434 under the Act, a
Term Sheet (as defined below) relating to the Shares, that identifies
the Preliminary Prospectus (as defined below) that it supplements and
contains such information as is required or permitted by Rules 434,
430A and 424(b) under the Act or (2) if the Company does not rely on
Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no
such amendment shall have been filed, in such registration statement)
with such changes or insertions as are required by Rule 430A or
permitted by Rule 424(b) under the Act, and in the case of either
(i)(A)(1) or (i)(A)(2) of this sentence, as has been provided to and
approved by the Representatives, or (B) if such registration
statement, as it may have been amended, has not become effective under
the Act, an amendment to such registration statement, including a form
of prospectus, a copy of which amendment has been provided to and
approved by the Representatives prior to the execution of this
Agreement. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time
when it was or is declared effective, including all financial
statements, schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each prospectus subject to completion
included in such registration statement or any amendment or
post-effective amendment thereto or filed with the Commission pursuant
to Rule 424(a) under the Act (including the prospectus subject to
completion, if any, included in the Registration Statement at the time
it was or is declared effective); and the term "Prospectus" means (X)
if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Shares that is first filed pursuant to Rule 424(b)(7)
under the Act together with the Preliminary Prospectus identified
therein that such Term Sheet supplements, (Y) if the Company does not
rely on Rule 434 under the Act, the prospectus first filed with the
Commission pursuant to Rule 424(b) under the Act, or (Z) if the
Company does not rely on Rule 434 and if no prospectus is required to
be filed pursuant to Rule 424(b) under the Act, such term means the
prospectus included in the Registration Statement. For purposes of the
following representations and warranties, to the extent reference is
made to the Prospectus and at the relevant time the Prospectus is not
yet in existence, such reference shall be deemed to be to the most
recent Preliminary Prospectus. The term "Term Sheet" means any term
sheet that satisfies the requirements of Rules 434 and 424(b) under
the Act. Any reference in this Agreement to the "date" of a Prospectus
that includes a Term Sheet means the date of such Term Sheet. Any
reference herein to the "Registration Statement," 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 Registration Statement or the
Prospectus.
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<PAGE> 3
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that
purpose has been instituted or threatened by the Commission or the
securities authority of any state or other jurisdiction. If the
Registration Statement has become effective under the Act, no stop
order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceeding for that purpose
has been instituted or threatened or, to the best knowledge of the
Company, contemplated by the Commission or the securities authority of
any state or other jurisdiction.
(iii) When any Preliminary Prospectus and any amendment or
supplement thereto was filed with the Commission, it (A) contained all
statements required to be stated therein in accordance with, and
complied in all material respects with the requirements of, the Act
and the rules and regulations of the Commission thereunder and (B) did
not include any 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, not
misleading. When the Registration Statement or any amendment or
supplement thereto was or is declared effective, and at each Time of
Delivery (as hereinafter defined), it (A) contained or will contain
all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder
and (B) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any
amendment or supplement thereto is filed with the Commission pursuant
to Rule 424(b) (or, if the Prospectus or such amendment or supplement
is not required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) and at each Time of Delivery,
the Prospectus, as amended or supplemented at any such time, (A)
contained or will contain all statements required to be stated therein
in accordance with, and complied or will comply in all material
respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (B) did not or will not
include any 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, not
misleading. The foregoing provisions of this paragraph (iii) do not
apply to statements or omissions made in any Preliminary Prospectus
and any amendment or supplement thereto, the Registration Statement or
any amendment thereto or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through you specifically
for use therein or by any of the Selling Stockholders expressly for
use in the preparation of the answers therein to Item 7 of Form S-3.
(iv) Each of the documents incorporated by reference in
the Registration Statement and the Prospectus when they were filed, or
to be filed, with the
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<PAGE> 4
Commission, conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder, and, as of their filing date, 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.
(v) The descriptions in the Registration Statement and
the Prospectus of statutes, legal and governmental proceedings or
contracts and other documents are accurate and fairly present the
information required to be shown; and there are no statutes or legal
or governmental proceedings required to be described in the
Registration Statement or the Prospectus that are not described as
required and no contracts or documents of a character 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 described or filed as required.
(vi) Exhibit A to this Agreement contains a complete and
correct list of the subsidiaries of the Company, which subsidiaries
are the Company's only active subsidiaries (the "Subsidiaries"). 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 full power and authority
(corporate and other) to own or lease its properties and conduct its
business as described in the Prospectus. The Company has full power
and authority (corporate and other) to enter into this Agreement and
to perform its obligations hereunder. Each of the Company and its
Subsidiaries is duly qualified to transact business as a foreign
corporation 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 have a material adverse effect on the
financial position, results of operations or business of the Company
and its Subsidiaries taken as a whole.
(vii) The Company's authorized, issued and outstanding
capital stock is and will be at the Time of Delivery (as hereinafter
defined) as disclosed in the Prospectus under the captions
"Capitalization" and "Description of Capital Stock." All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and at the Time of
Delivery (as hereinafter defined) will conform to the description of
the Common Stock contained in the Prospectus. None of the issued
shares of capital stock of the Company or any of its Subsidiaries has
been issued or is owned or held in violation of any preemptive rights
of stockholders, and at the Time of Delivery (as hereinafter defined)
no person or entity (including any holder of outstanding shares of
capital stock of the Company or its Subsidiaries) will have any
preemptive or other rights to subscribe for any of the Shares.
-4-
<PAGE> 5
(viii) Except as disclosed in the Prospectus, all of the
issued shares of capital stock of each of the Company's Subsidiaries
have been duly authorized and validly issued, are fully paid and
nonassessable and are owned beneficially by the Company free and clear
of all liens, security interests, pledges, charges, encumbrances,
defects, stockholders agreements, voting trusts, equities or claims of
any nature whatsoever. Other than the capital stock of the
Subsidiaries and as otherwise set forth on Exhibit A, the Company and
its Subsidiaries do not own, directly or indirectly, any capital stock
or other equity securities of any other corporation or any ownership
interest in any partnership, joint venture or other association.
(ix) Except as disclosed in the Prospectus, there are no
outstanding (A) securities or obligations of the Company or any of its
Subsidiaries convertible into or exchangeable for any capital stock of
the Company or any Subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any
capital stock or any convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any Subsidiary to
issue any shares of capital stock, any convertible or exchangeable
securities or obligations, or any warrants, rights or options.
(x) Since the date of the most recent audited financial
statements included in the Prospectus, neither the Company nor any of
its Subsidiaries has sustained 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 disclosed in
or contemplated by the Prospectus.
(xi) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
disclosed in the Prospectus, (A) neither the Company nor any of its
Subsidiaries has incurred any liabilities or obligations, direct or
contingent, or entered into any transactions, not in the ordinary
course of business, that are material to the Company and its
Subsidiaries taken as a whole, (B) the Company has not purchased any
of its outstanding capital stock or declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock, (C)
there has not been any change in the capital stock, long- term debt or
short-term debt (other than changes effected in the ordinary course of
business consistent with past practice) of the Company or any of its
Subsidiaries, and (D) there has not been any material adverse change,
or any development involving a prospective material adverse change, in
or affecting the financial position, results of operations or business
of the Company and its Subsidiaries taken as a whole, in each case
other than as disclosed in or contemplated by the Prospectus.
(xii) The Shares have been duly authorized, and when issued
and delivered against payment therefor as provided herein, will be
validly issued and fully paid and nonassessable and will conform to
the description of the Common Stock contained in
-5-
<PAGE> 6
the Prospectus; the certificates evidencing the Shares will comply
with all applicable requirements of the Delaware General Corporation
Law and the delivery of certificates for the Shares sold by the
Company and payment therefor pursuant to the terms of this Agreement
will pass valid title to such Shares to the several Underwriters, free
and clear of any claim, encumbrance or defect in title.
(xiii) Except as disclosed in the Prospectus or set forth on
Exhibit B, 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 owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act, and any such rights
disclosed in the Prospectus or set forth on Exhibit B have been
effectively exercised or waived after timely notice thereof with
respect to the transactions contemplated by this Agreement.
(xiv) Neither the Company nor any of its Subsidiaries is,
or with the giving of notice or passage of time or both will be, in
violation of its Restated Certificate of Incorporation or Bylaws or in
default under any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or to which any of their respective
properties or assets are subject that is material to the Company and
its Subsidiaries taken as a whole.
(xv) The issue and sale of the Shares and the performance
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its Subsidiaries
is a party or to which any of their respective properties or assets is
subject or any statute, rule or regulation or any order, judgment or
decree of any court or governmental agency or body having jurisdiction
over the Company or any of its Subsidiaries or any of their respective
properties or assets nor will such action conflict with or violate any
provision of the Restated Certificate of Incorporation or Bylaws of the
Company as in effect at the First Time of Delivery (as hereinafter
defined) or any Subsequent Time of Delivery (as hereinafter defined) or
the Restated Certificate of Incorporation or Bylaws of any of the
Company's Subsidiaries.
(xvi) The Company and its Subsidiaries have good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, security interests, pledges, charges,
encumbrances, mortgages and defects, except such as are disclosed in
the Prospectus or such as do not materially and adversely affect the
value of such property and do not interfere with the use made of such
property by the
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<PAGE> 7
Company and its Subsidiaries; and any real property and buildings held
under lease by the Company or any of its Subsidiaries are held under
valid, subsisting and enforceable leases, with such exceptions as are
disclosed in the Prospectus or are not material and do not interfere
with the use made or proposed to be made of such property and buildings
by the Company or such Subsidiary.
(xvii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the issue and
sale of the Shares or the consummation of the transactions contemplated
by this Agreement, except the registration of the Shares under the Act
(which, if the Registration Statement is not effective as of the time
of execution hereof, shall be obtained as provided in this Agreement)
and such as may be required under state securities or blue sky laws in
connection with the offer, sale and distribution of the Shares by the
Underwriters and the clearance of such offering with the National
Association of Securities Dealers, Inc.
(xviii) There is no litigation, arbitration, claim, proceeding
(formal or informal) or investigation pending or, to the knowledge of
the Company, threatened (or, to the knowledge of the Company, any basis
therefor) in which the Company or any of its Subsidiaries is a party or
of which any of their respective properties or assets are the subject
which, if determined adversely to the Company or any such Subsidiary,
would individually or in the aggregate have a material adverse effect
on the financial position, results of operations or business of the
Company and its Subsidiaries taken as a whole. Neither the Company nor
any of its Subsidiaries is in violation of, or in default with respect
to, any statute, rule, regulation, order, judgment or decree, except
such as do not and will not individually or in the aggregate have a
material adverse effect on the financial position, results of
operations or business of the Company and its Subsidiaries taken as a
whole, and neither the Company nor any of its Subsidiaries is required
to take any action in order to avoid any such violation or default.
(xix) Price Waterhouse LLP, independent public accountants,
who have certified certain financial statements of the Company and its
consolidated Subsidiaries, are, and were during the periods covered by
their reports included in the Registration Statement and the
Prospectus, independent public accountants as required by the Act, the
Exchange Act, and the respective rules and regulations of the
Commission thereunder.
(xx) 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
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
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<PAGE> 8
liability (other than for the payment of premiums) to the Pension
Benefit Guaranty Corporation.
(xxi) The consolidated financial statements (including the
related notes) of the Company and its consolidated Subsidiaries
included in the Registration Statement, the Prospectus or any
Preliminary Prospectus were prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved and fairly present the financial position and results
of operations of the Company and its Subsidiaries, on a consolidated
basis, at the dates and for the periods presented.
(xxii) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating
to or affecting the enforcement of creditors rights generally and to
general equitable principles and except as the enforceability of rights
to indemnity and contribution under this Agreement may be limited under
applicable securities laws or the public policy underlying such laws.
(xxiii) Neither the Company nor any of its officers, directors
or affiliates (A) has taken or will take or has induced or will induce
others to take, directly or indirectly, any action designed to cause or
result in, or that has constituted or might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares
or (B) has, since the filing of the Registration Statement (1) sold,
bid for, purchased or paid anyone any compensation for soliciting
purchases of, the Shares or (2) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company.
(xxiv) The Company has obtained for the benefit of the
Company and the Underwriters from each of its directors, officers and
certain stockholders previously identified by the Underwriters, a
written agreement, enforceable by you, that for a period of 180 days
from the date the Registration Statement is declared effective under
the Act such director, officer or stockholder will not, without your
prior written consent, offer, pledge, sell, contract to sell, grant any
option for the sale of, or otherwise dispose of (or announce any offer,
pledge, sale, grant of an option to purchase or other disposition),
directly or indirectly, any shares of Common Stock or securities
convertible into, or exercisable or exchangeable for, shares of Common
Stock; and from each such stockholder having registration rights a
written agreement waiving such registration rights for a period of 180
days from the date the Registration Statement is declared effective
under the Act, except to the extent such stockholder has elected to
sell shares of Common Stock to the Underwriters under this Agreement.
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<PAGE> 9
(xxv) Neither the Company, any of its Subsidiaries, nor any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any such Subsidiary has, directly or
indirectly, used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(xxvi) The operations of the Company and its Subsidiaries
with respect to any real property currently leased by the Company or
any Subsidiary (the "Real Property") are in compliance with all
federal, state, and local laws, ordinances, rules, and regulations
relating to occupational health and safety and environmental protection
(collectively, "Laws "), and the Company and its Subsidiaries have all
licenses, permits and authorizations necessary to operate under all
Laws and are in material compliance with all terms and conditions of
such licenses, permits and authorizations; neither the Company nor any
Subsidiary has authorized, conducted or has knowledge of the unlawful
generation, transportation, storage, use, treatment, disposal or
release of any hazardous substance, hazardous waste, hazardous
material, hazardous constituent, toxic substance, pollutant,
contaminant, petroleum product, natural gas, liquefied gas or synthetic
gas defined or regulated under any environmental law on, in or under
any Real Property; and there is no pending or threatened claim,
litigation or any administrative agency proceeding, nor has the Company
or any Subsidiary received any written or oral notice from any
governmental entity or third party, that: (A) alleges a violation of
any Laws by the Company or any Subsidiary; (B) alleges the Company or
any Subsidiary is a liable party under the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et
seq. or any state superfund law; or (C) alleges possible contamination
of the environment by the Company or any Subsidiary. Additionally,
neither the Company nor any Subsidiary has received any written or oral
notice that alleges possible contamination of the Real Property.
(xxvii) The Company and its Subsidiaries own or have the right
to use all patents, patent applications, trademarks, trademark
applications, tradenames, service marks, copyrights, franchises, trade
secrets, proprietary or other confidential information and intangible
properties and assets (collectively, "Intangibles") necessary to their
respective businesses as presently conducted or as the Prospectus
indicates the Company or such Subsidiary proposes to conduct; to the
best knowledge of the Company, neither the Company nor any Subsidiary
has infringed or is infringing, and neither the Company nor any
Subsidiary has received notice of infringement with respect to,
asserted Intangibles of others; and, to the best knowledge of the
Company, there is no infringement by others of Intangibles of the
Company or any of its Subsidiaries.
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<PAGE> 10
(xxviii) The Company and each of its 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.
(xxix) Each of the Company and its Subsidiaries makes and
keeps accurate books and records reflecting its assets and maintains
internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of the Company's consolidated financial statements in
accordance with generally accepted accounting principles and to
maintain accountability for the assets of the Company, (C) access to
the assets of the Company and each of its Subsidiaries is permitted
only in accordance with management's authorization, and (D) the
recorded accountability for assets of the Company and each of its
Subsidiaries is compared with existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
(xxx) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distributions on such Subsidiary's capital stock,
from repaying to the Company any loans or advances to such Subsidiary
or from transferring any of such Subsidiary's property or assets to
the Company or any other Subsidiary of the Company, except such
transfers of property or assets that are not material to the Company
and its Subsidiaries taken as a whole.
(xxxi) The Company and its Subsidiaries have filed all
foreign, federal, state and local tax returns that are required to be
filed by them and have paid all taxes shown as due on such returns as
well as all other taxes, assessments, amounts required to be withheld
and governmental charges that are due and payable; and no deficiency
with respect to any such return, tax or similar charge or payment has
been assessed or proposed.
(xxxii) The conditions for use of registration statements on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transactions contemplated herein.
(b) Each of the Selling Stockholders, severally and not jointly,
represents and warrants to and agrees with, each of the Underwriters and the
Company, solely with respect to such Selling Stockholder, that:
(i) Such Selling Stockholder has duly executed this
Agreement and a power of attorney and a custody agreement ("Power of
Attorney" and "Custody Agreement"), naming Steven A. Odom and Mark A.
Gergel, or either of them, as such Selling Stockholder's
attorney(s)-in-fact ("Attorneys-in-Fact") for the purpose of entering
into and carrying out this Agreement and naming Continental Stock
Transfer
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<PAGE> 11
and Trust Company as custodian ("Custodian") of the Shares of such
Selling Stockholder to be sold to the Underwriters hereunder for the
purpose of selling such Shares to the Underwriters at the First Time
of Delivery (as hereinafter defined) or any Subsequent Time of
Delivery (as hereinafter defined), as the case may be, and receiving
payment therefor.
(ii) There is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation
pending or, to the knowledge of such Selling Stockholder, threatened
against or affecting such Selling Stockholder that would affect the
ability of such Selling Stockholder to perform his or its obligations
under this Agreement or the Power of Attorney and Custody Agreement.
(iii) Such Selling Stockholder, if a corporation,
partnership or other business entity, is a corporation, partnership or
entity duly organized, validly existing, and in good standing under the
laws of its jurisdiction of incorporation or organization. Such Selling
Stockholder has all requisite power and authority to execute, deliver,
and perform this Agreement and the Power of Attorney and Custody
Agreement. All necessary corporate, partnership or other proceedings of
such Selling Stockholder, if a corporation, partnership or other
business entity, have been duly taken to authorize the execution,
delivery, and performance of this Agreement and the Power of Attorney
and Custody Agreement by such Selling Stockholder. This Agreement and
the Power of Attorney and Custody Agreement have been duly authorized
by such Selling Stockholder, if a corporation, partnership or other
business entity, and delivered by such Selling Stockholder, are the
legal, valid, and binding obligations of such Selling Stockholder, and
are enforceable as to such Selling Stockholder in accordance with their
respective terms subject, as to enforcement to applicable bankruptcy,
insolvency, reorganization and moratorium or other laws relating to or
affecting creditor's rights generally and to general equitable
principles and except as the enforceability of rights to indemnity and
contribution under this Agreement may be limited under applicable
securities laws or public policy. No consent, authorization, approval,
order, license, certificate, or permit of or from, or declaration or
filing with, any federal, state, local, or other governmental authority
or any court or other tribunal is required by such Selling Stockholder
for the execution, delivery, or performance of this Agreement (except
filings under the Act and the Exchange Act and consents under
applicable "blue sky" or securities laws) or the Power of Attorney and
Custody Agreement by such Selling Stockholder. No consent of any party
to any material contract, agreement, instrument, lease, license,
arrangement, or understanding to which such Selling Stockholder is a
party, or to which any of such Selling Stockholder's properties or
assets are subject, is required for the execution, delivery, or
performance of this Agreement or the Power of Attorney and Custody
Agreement; and the execution, delivery, and performance of this
Agreement and the Power of Attorney and Custody Agreement will not
violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to
terminate or call a default under any such
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<PAGE> 12
material contract, agreement, instrument, lease, license, arrangement,
or understanding, or violate or result in a breach of, any term of such
Selling Stockholder's articles or certificate of incorporation and
bylaws, partnership agreement or other organizational documents, if
such Selling Stockholder is a corporation, partnership or other
business entity, or violate, result in a breach of, or conflict with,
any law, rule, regulation, order, judgment, or decree binding on such
Selling Stockholder or to which any of such Selling Stockholder's
operations, business, properties, or assets are subject. Such Selling
Stockholder, if a corporation, partnership or other business entity, is
not in violation or breach of, or in default with respect to, any terms
of its articles or certificate of incorporation and bylaws, partnership
agreement or other organizational documents.
(iv) Such Selling Stockholder has, and immediately prior to
the First Time of Delivery (as hereinafter defined) such Selling
Stockholder will have, title to the Shares to be sold by such Selling
Stockholder hereunder, free and clear of all adverse claims, including
liens, security interests, pledges, charges, encumbrances, defects,
stockholders agreements, voting trusts, equities or claims of any
nature whatsoever; and upon delivery of such Shares against payment
therefor as provided herein, such Selling Stockholder will pass title
to such Shares, free and clear of all adverse claims, including liens,
security interests, pledges, charges, encumbrances, defects,
stockholders' agreements, voting trusts, equities or claims of any
nature whatsoever, to the several Underwriters.
(v) Such Selling Stockholder has deposited in custody,
under the Power of Attorney and Custody Agreement, certificates in
negotiable form for the number of Shares to be sold by such Selling
Stockholder hereunder as set forth opposite such Selling Stockholder's
name on Schedule II for the purpose of further delivery pursuant to
this Agreement. Such Selling Stockholder agrees that the Shares of such
Selling Stockholder on deposit with the Custodian are subject to the
interests of the Company, the Underwriters and the other Selling
Stockholders, that the arrangements made for such custody, and the
appointment of the Attorneys- in-Fact pursuant to the Power of Attorney
and Custody Agreement, are to that extent irrevocable, and that the
obligations of such Selling Stockholder hereunder and under the Power
of Attorney and Custody Agreement shall not be terminated, except as
provided in this Agreement and the Power of Attorney and Custody
Agreement, by any act of such Selling Stockholder, by operation of law,
whether, in the case of an individual Selling Stockholder, by the death
or incapacity of such Selling Stockholder or, in the case of a trust or
estate, by the death of the trustee or trustees or the executor or
executors or the termination of such trust or estate, or, in the case
of a partnership or corporation, by the dissolution, winding-up or
other event affecting the legal life of such entity, or by the
occurrence of any other event. If any individual Selling Stockholder,
trustee or executor should die or become incapacitated, or any such
trust, estate, partnership or corporation should be terminated, or if
any other event should occur before the delivery of the Shares
hereunder, the certificates for Shares then on deposit with the
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<PAGE> 13
Custodian shall, to the extent such Shares are purchased by the
Underwriters, be delivered by the Custodian in accordance with the
terms and conditions of this Agreement and the Power of Attorney and
Custody Agreement as if such death, incapacity, termination or other
event had not occurred, regardless of whether or not the Custodian
shall have received notice thereof.
(vi) Neither such Selling Stockholder nor any of such
Selling Stockholder's affiliates (as defined in the Regulations) (A)
has taken or will take or has or will induce others to take, directly
or indirectly, any action designed to cause or result in or that has
constituted or might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of any of the Shares or (B)
since the filing of the Registration Statement (1) sold, bid for,
purchased or paid anyone any compensation for soliciting purchases of,
the Shares or (2) paid or agreed to pay any person any compensation for
soliciting another to purchase any other securities of the Company,
except pursuant to this Agreement.
(vii) To the extent any statements or omissions regarding
such Selling Stockholder included in the section of the Prospectus
entitled "Principal and Selling Stockholders" have been made in any
Preliminary Prospectus, the Registration Statement or any amendments
thereto or the Prospectus or any amendments or supplements thereto, in
reliance upon or in conformity with written information furnished to
the Company by or on behalf of the Selling Stockholder specifically
for use therein, such statements or omissions conform in all material
respects to the requirements of the Act and the rules and regulations
of the Commission thereunder, and did not include any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(viii) Except as may be set forth in the Prospectus, such
Selling Stockholder has not incurred any liability for a fee,
commission, or other compensation on account of the employment of a
broker or finder in connection with the transactions contemplated by
this Agreement.
2. PURCHASE AND SALE OF SHARES. Subject to the terms and
conditions herein set forth, (a) the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company at a purchase price of $____ per share
(the "Purchase Price"), the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto, and (b) and each of the Selling
Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly,
to purchase from each of the Selling Stockholders at the Purchase Price, the
number of Firm Shares set forth opposite the name of such Selling Stockholder
in Schedule II hereto. The number of Firm Shares to be sold by each Selling
Stockholder to each Underwriter shall be the number which bears the same ratio
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<PAGE> 14
to the number set forth opposite the name of such Underwriter in Schedule I
hereto as the number of shares to be sold by such Selling Stockholder, as
indicated in Schedule II hereof, bears to the aggregate number of Firm Shares
to be sold by the Selling Stockholders, subject, however, to such adjustment as
you may at any time approve to eliminate fractional shares. Subject to the
terms and conditions herein set forth, in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as
provided below, (a) the Company agrees to issue and 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, that portion of the number
of Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares that such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of the Optional Shares that all of
the Underwriters are entitled to purchase hereunder. The number of shares
resulting from any computations contemplated by this paragraph are subject to
adjustment by you to eliminate fractional shares.
The Company hereby grants to the Underwriters the right to purchase at
their election in whole or in part from time to time up to 600,000 Optional
Shares, at the Purchase Price, for the sole purpose of covering over-allotments
in the sale of Firm Shares. Any such election to purchase Optional Shares may
be exercised by written notice from you to the Company and the Custodian, given
from time to time within a period of 30 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you, but in no event earlier than the First Time of Delivery (as
hereinafter defined) or, unless you and the Company otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
In the event you elect to purchase all or a portion of the Optional Shares, the
Company agrees to furnish or cause to be furnished to you the certificates,
letters and opinions, and to satisfy all conditions, set forth in Section 7
hereof at each Subsequent Time of Delivery (as hereinafter defined).
3. OFFERING BY THE UNDERWRITERS. Upon the authorization by you of
the release of the Shares, the several Underwriters propose to offer the Shares
for sale upon the terms and conditions disclosed in the Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates in definitive form
for the Shares to be purchased by each Underwriter hereunder, and in such
denominations and registered in such names as The Robinson-Humphrey Company,
Inc. may request upon at least 48 hours prior notice to the Company or any
Selling Stockholder, as applicable, shall be delivered by or on behalf of the
Company and the Selling Stockholders to you for the account of such Underwriter,
against payment by such Underwriter on its behalf of the purchase price therefor
by official bank check or checks (payable in next day funds) drawn on an
Atlanta, Georgia bank, one payable to the order of the Company in next day
available funds (with
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<PAGE> 15
respect to shares being sold by the Company hereunder) and separate checks
payable to the order of each Selling Stockholder, in next day available funds
(with respect to shares being sold by the Selling Stockholders hereunder). The
closing of the sale and purchase of the Shares and consummation of each of the
transactions contemplated hereby shall be held at the offices of Hunton &
Williams, 600 Peachtree Street, N.E., Suite 4100, Atlanta, Georgia 30308,
notwithstanding that physical delivery of such certificates shall be made at the
office of The Depository Trust Company, 55 Water Street, New York, New York
10041. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, at 10:00 a.m., Atlanta time, on the third (or, if the Shares
are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m., Washington, D.C. time, the fourth) full business day alter the execution
of this Agreement or at such other time and date as you, the Attorney-in-Fact on
behalf of the Selling Stockholders, and the Company may agree upon in writing,
and, with respect to the Optional Shares, at 10:00 a.m., Atlanta time, on the
date specified by you in the written notice given by you of the Underwriters'
election to purchase all or part of such Optional Shares, or at such other time
and date as you and the Company may agree upon in writing. Such time and date
for delivery of the Firm Shares is herein called the "First Time of Delivery,"
such time and date for delivery of the Optional Shares, if not the First Time of
Delivery, is herein called a "Subsequent Time of Delivery," and each such time
and date for delivery is herein called a "Time of Delivery." Such certificates
will be made available for checking and packaging at least 24 hours prior to
each Time of Delivery at the office of The Depository Trust Company, 55 Water
Street, New York, New York 10041 or at such other location in New York, New York
specified by you in writing at least 48 hours prior to such Time of Delivery.
5. COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. (a) The
Company covenants and agrees with each of the Underwriters:
(i) If the Registration Statement has been declared
effective prior to the execution and delivery of this Agreement, the
Company will file the Prospectus (or a term sheet as permitted by Rule
434(c)) with the Commission pursuant to and in accordance with Rule
424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or, if
applicable, (B) such earlier time as may be required by Rule
430A(a)(3). The Company will advise you promptly of any such filing
pursuant to Rule 424(b).
(ii) The Company will not file with the Commission the
Prospectus or the amendment referred to in the second sentence of
Section l(a)(i) hereof, any amendment or supplement to the Prospectus
or any amendment to the Registration Statement unless you have
received a reasonable period of time to review any such proposed
amendment or supplement and consented to the filing thereof and will
use its best efforts to cause any such amendment to the Registration
Statement to be declared effective as promptly as possible. Upon the
request of the Representatives or counsel for the Underwriters, the
Company will promptly prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, any
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<PAGE> 16
amendments to the Registration Statement or amendments or supplements
to the Prospectus that may be necessary or advisable in connection with
the distribution of the Shares by the several Underwriters and will use
its best efforts to cause any such amendment to the Registration
Statement to be declared effective as promptly as possible. If
required, the Company will file any amendment or supplement to the
Prospectus with the Commission in the manner and within the time period
required by Rule 424(b) under the Act. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time
when the Registration Statement or any amendment thereto has been filed
or declared effective or the Prospectus or any amendment or supplement
thereto has been filed and will provide evidence to the Representatives
of each such filing or effectiveness.
(iii) The Company will advise you promptly after receiving
notice or obtaining knowledge of (A) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or any part thereof or any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, (B) the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (C) any request
made by the Commission or any securities authority of any other
jurisdiction for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(iv) If at any time when the delivery of a prospectus
relating to the Shares is required under the Act any events 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 light of the circumstances under which they were
made, not misleading, or if for any reason it is necessary during such
same period to amend or supplement the Prospectus to comply with the
Act or the rules and regulations thereunder, the Company will promptly
notify you and upon your request (but at the Company's expense) prepare
and file with the Commission an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such
compliance and will furnish without charge to each Underwriter and to
any dealer in securities as many copies of such amended or supplemented
Prospectus as you may from time to time reasonably request. If the
delivery of a prospectus relating to the Shares is required under the
Act at any time nine months or more after the date of the Prospectus,
upon your request but at the expense of such Underwriter, the Company
will prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act. Neither your consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 7.
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<PAGE> 17
(v) The Company promptly from time to time will take such
action as you may reasonably request to qualify the Shares for offering
and sale under the securities or blue sky laws of such jurisdictions as
you may request and will continue such qualifications in effect for as
long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction.
(vi) The Company will promptly provide you, without charge,
(A) three manually executed copies of the Registration Statement as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits to the Registration
Statement, (B) for each other Underwriter a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto, without exhibits, and (C) so long as a prospectus relating to
the Shares is required to be delivered under the Act, as many copies of
each Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto as you may reasonably request. Prior to the
execution and delivery of the Agreement, the Company has delivered to
you, without charge, in such quantities as you have requested, copies
of each Preliminary Prospectus. The Company consents to the use, in
accordance with the provisions of the Act and with the securities or
blue sky laws of the jurisdictions in which the Shares are offered by
the several Underwriters and by dealers, prior to the date of the
Prospectus, of each Preliminary Prospectus so furnished by the Company.
(vii) As soon as practicable, but in any event not later
than the last day of the fifteenth month after the effective date of
the Registration Statement, the Company will make generally available
to its security holders an earnings statement of the Company and its
Subsidiaries, if any, covering a period of at least 12 months beginning
after the effective date of the Registration Statement (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder.
(viii) During the period of 180 days from the date the
Registration Statement is declared effective under the Act, the Company
will not, without your prior written consent, offer, pledge, issue,
sell, contract to sell, grant any option for the sale of, or otherwise
dispose of (or announce any offer, pledge, sale, grant of an option to
purchase or other disposition), directly or indirectly, any shares of
Common Stock or securities convertible into, exercisable or
exchangeable for, shares of Common Stock, except as provided in Section
2 and except for the issuance of Common Stock upon the exercise of
stock options or warrants outstanding on the date of this Agreement to
the extent that the aggregate number of such stock options or warrants
are disclosed in the Prospectus and except for options granted pursuant
to the Company's stock option plans, subject to the limitation on the
number of shares of Common Stock issuable thereunder disclosed in the
Prospectus.
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(ix) During a period of five years from the effective date
of the Registration Statement, the Company will furnish to you and,
upon request, to each of the other Underwriters, without charge, (i)
copies of all reports or other communications (financial or other)
furnished to stockholders, (ii) 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, and (iii) such
additional publicly available information concerning the business and
financial condition of the Company and its Subsidiaries, if any, as you
may reasonably request.
(x) Neither the Company nor any of its officers, directors
or affiliates will (A) take, directly or indirectly, prior to the
termination of the underwriting syndicate contemplated by this
Agreement, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of any of the Shares, (B) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of, the Shares or (C) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xi) The Company will apply the net proceeds from the
offering in the manner set forth under "Use of Proceeds" in the
Prospectus.
(b) Each of the Selling Stockholders, severally and not jointly,
covenants and agrees with each of the Underwriters:
(i) Such Selling Stockholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Stockholder will pay all federal and
other taxes, if any, on the transfer or sale of the Shares being sold
by such Selling Stockholder to the Underwriters.
(iii) Such Selling Stockholder will do or perform all
things required to be done or performed by such Selling Stockholder
prior to the First Time of Delivery to satisfy all conditions
precedent to the delivery of the Shares pursuant to this Agreement or
the Power of Attorney and Custody Agreement.
(iv) Such Selling Stockholder has delivered to the Company
an agreement pursuant to which such Selling Stockholder has agreed
that during the period of 180 days from the date the Registration
Statement is declared effective under the Act, such Selling
Stockholder will not, without your prior written consent, offer,
pledge, issue, sell, contract to sell, grant any option for the sale
of, or otherwise dispose of (or announce any offer, pledge, sale,
grant of an option to purchase or other disposition), directly or
indirectly, any shares of Common Stock or securities convertible into,
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exercisable or exchangeable for, shares of Common Stock, except as
provided in Section 2.
(v) Such Selling Stockholder will not (A) take, directly
or indirectly, prior to the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to cause or to
result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Shares, (B)
sell, bid for, purchase or pay anyone any compensation for conflicting
purchases of, the Shares or (C) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities
of the Company.
(vi) Such Selling Stockholder will deliver to the
Custodian on or prior to the First Time of Delivery 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).
(vii) Such Selling Stockholder will furnish any documents,
instruments or other information which you may reasonably request in
connection with the sale and transfer of the Shares.
(viii) Such Selling Stockholder will use its or his best
efforts to comply or cause to be complied with the conditions to the
obligations of the Underwriters in subsections (d), (i) and (j) of
Section 7 hereof insofar as such conditions relate to such Selling
Stockholder.
6. EXPENSES. The Company will pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including, without limitation, all
costs and expenses incident to (i) the fees, disbursements and expenses of the
Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and, if applicable, filing of the Registration Statement (including
all amendments thereto), any Preliminary Prospectus, the Prospectus and any
amendments and supplements thereto, this Agreement and any blue sky memoranda;
(ii) the delivery of copies of the foregoing documents to the Underwriters;
(iii) the filing fees of the Commission and the National Association of
Securities Dealers, Inc. relating to the Shares; (iv) the preparation, issuance
and delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's fees; (v) the qualification of the Shares for
offering and sale under state securities and blue sky laws, including filing
fees and fees and disbursements of counsel for the Underwriters relating
thereto; (vi) any listing of the Shares on the Nasdaq National Market; and
(vii) any expenses for travel, lodging and meals incurred by the Company and
any of its officers, directors and employees in connection with any meetings
with prospective purchasers of the Shares. Those Selling Stockholders
identified as
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<PAGE> 20
"Unaffiliated Stockholders" on Schedule II hereto (the "Unaffiliated
Stockholders") will pay all costs and expenses incident to their participation
in the Offering, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated pursuant to Section 10 hereof,
including, without limitation, all costs and expenses incident to the fees,
disbursements and expenses of their counsel, accountants and/or advisors. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 10 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale
of any of the Shares by them, and any advertising expenses relating to the
offer and sale of the Shares.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters hereunder to purchase and pay for the Shares to be
delivered at each Time of Delivery shall be subject, in their discretion, to
the accuracy of the representations and warranties of the Company and the
Selling Stockholders contained herein as of the date hereof and as of such Time
of Delivery, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders of its and their covenants and agreements hereunder, and
to the following additional conditions precedent:
(a) If the Registration Statement as amended to date has not
become effective prior to the execution of this Agreement, such registration
statement shall have been declared effective not later than 11:00 a.m., Atlanta
time, on the date of this Agreement or such later date and/or time as shall
have been consented to by you in writing. The Prospectus and any amendment or
supplement thereto shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing and in
accordance with Section 5(a) of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceedings for that purpose shall have been instituted,
threatened or, to the knowledge of the Company, the Selling Stockholders or the
Representatives, contemplated by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction.
(b) Hunton & Williams, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated such Time of Delivery, with
respect to the incorporation of the Company, the validity of the Shares being
delivered at such Time of Delivery, the Registration Statement, the Prospectus,
and other related matters as you may reasonably request, and the Company shall
have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(c) You shall have received an opinion, dated such Time of
Delivery, of Rogers & Hardin, counsel for the Company, in form and substance
satisfactory to you and your counsel, to the effect that:
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(i) The Company 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 own or lease its properties and conduct its business as described in
the Registration Statement and the Prospectus and to enter into this
Agreement and perform its obligations hereunder. The Company is duly
qualified to transact business as a foreign corporation and is in good
standing under the laws of each other jurisdiction in which it owns or
leases property, or conducts any business, so as to require such
qualification, except where the failure to so qualify would not have a
material adverse effect on the financial position, results of
operations or business of the Company and its Subsidiaries taken as a
whole.
(ii) Each of the Subsidiaries of the Company 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 own or lease its properties and
conduct its business as described in the Registration Statement and the
Prospectus. Each such Subsidiary is duly qualified to transact business
as a foreign corporation and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, or conducts any
business, so as to require such qualification, except where the failure
to so qualify would not have a material adverse effect on the financial
position, results of operations or business of the Company and its
Subsidiaries taken as a whole.
(iii) The Company's authorized, issued and outstanding
capital stock is as disclosed in the Prospectus. All of the issued
shares of capital stock of the Company, including the Shares to be sold
to the Underwriters by the Selling Stockholders hereunder, have been
duly authorized and validly issued, are fully paid and nonassessable
and conform to the description of the Common Stock contained in the
Prospectus. None of the issued shares of capital stock of the Company
or any of its Subsidiaries has been issued or is owned or held in
violation of any preemptive rights of stockholders, and, except as
disclosed in the Prospectus, no person or entity (including any holder
of outstanding shares of capital stock of the Company or its
Subsidiaries) has any statutory preemptive or, to our knowledge, other
rights to subscribe for any of the Shares.
(iv) All of the issued shares of capital stock of each of
the Company's Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned beneficially
by the Company either directly or through wholly-owned subsidiaries
and, except as disclosed in the Prospectus, are free and clear, to
such counsel's knowledge, of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements, voting trusts,
defects, equities or claims of any nature whatsoever.
(v) Except as disclosed in the Prospectus, to such
counsel's knowledge, there are no outstanding (A) securities or
obligations of the Company or any of its
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<PAGE> 22
Subsidiaries convertible into or exchangeable for any capital stock of
the Company or any such Subsidiary, (B) warrants, rights or options to
subscribe for or purchase from the Company or any Subsidiary any
capital stock or any convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any Subsidiary to
issue any shares of capital stock, any convertible or exchangeable
securities or obligations, or any warrants, rights or options.
(vi) The Shares to be issued and sold by the Company have
been duly authorized and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully paid and
nonassessable and will conform to the description of the Common Stock
contained in the Prospectus; and the certificates evidencing the
Shares comply with all applicable requirements of Delaware law.
(vii) Except as disclosed in the Prospectus or as set forth
on Exhibit B, there are no contracts, agreements or understandings
known to such counsel 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
owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant
to any other registration statement filed by the Company under the
Act, and any such rights disclosed in the Prospectus or set forth on
Exhibit B have been effectively exercised or waived after timely
notice thereof with respect to the transactions contemplated by this
Agreement.
(viii) Neither the Company nor any of its Subsidiaries is in
violation of its Certificate or Articles of Incorporation or Bylaws
or, to such counsel's knowledge, in default under any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company or any such Subsidiary is a party or
to which any of their respective properties or assets is subject that
is material to the Company and its Subsidiaries taken as a whole.
(ix) The issue and sale of the Shares being issued at such
Time of Delivery and the performance of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with, or (with or without the giving of notice or the passage of time
or both) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, to such counsel's
knowledge, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company or any such
Subsidiary is a party or to which any of their respective properties or
assets is subject that is material to the Company and its Subsidiaries
taken as a whole, nor will such action conflict with or violate any
provision of the Certificate or Articles of Incorporation or Bylaws of
the Company or any statute, rule or regulation or to such counsel's
knowledge any order, judgment or decree of any court or governmental
agency or body having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties or assets;
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<PAGE> 23
provided, however, that counsel need express no opinion as to the
securities or blue sky laws of the various states.
(x) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the issue and
sale of the Shares by the Company or the consummation by the Company
of the transactions contemplated by this Agreement, except the
registration of the Shares under the Act, the registration of the
Common Stock under the Exchange Act and such as may be required under
state securities or blue sky laws in connection with the offer, sale
and distribution of the Shares by the Underwriters and clearance of
such offering with the National Association of Securities Dealers,
Inc., as to which state securities or blue sky laws and clearance by
the National Association of Securities Dealers, Inc. such counsel need
express no opinion.
(xi) To such counsel's knowledge, and other than as
disclosed in or contemplated by the Prospectus, there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation
pending or threatened in which the Company or any of its Subsidiaries
is a party or of which any of their respective properties or assets is
the subject which, if determined adversely to the Company or any such
Subsidiary, would individually or in the aggregate have a material
adverse effect on the financial position, results of operations or
business of the Company and its Subsidiaries taken as a whole; and, to
such counsel's knowledge, neither the Company nor any of its
Subsidiaries is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as
described in the Prospectus or where such violations or defaults would
not individually or in the aggregate have a material adverse effect on
the financial position, results of operations or business of the
Company and its Subsidiaries taken as a whole, nor is the Company or
any Subsidiary required to take any action in order to avoid any such
violation or default.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by you, constitutes the valid and binding agreement of
the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or
affecting creditors' rights generally, by general principles of equity
whether such enforceability is considered in a proceeding in law or
equity and by the discretion of the court before which any proceeding
therefor may be brought, and except to the extent that rights to
indemnity and contribution hereunder may be limited by federal or
state securities laws or the public policy underlying such laws.
(xiii) The Registration Statement and the Prospectus and
each amendment or supplement thereto (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), as of their respective effective or
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<PAGE> 24
issue dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder. The
descriptions in the Registration Statement and the Prospectus of
statutes, legal and governmental proceedings or contracts and other
documents and statements of law or legal conclusions, insofar as such
descriptions constitute summaries of such statutes, proceedings or
documents referred to therein, fairly summarize the matters referred
to therein and fairly present the information required to be shown;
and such counsel do not know of any statutes or legal or governmental
proceedings required to be described in the Registration Statement or
Prospectus that are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required.
(xiv) To such counsel's knowledge, the documents
incorporated by reference in the Prospectus (other than the financial
statements and the related schedules therein, as to which such counsel
need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder.
(xv) The Registration Statement and all post-effective
amendments, if any, have become effective under the Act; any required
filing of the Preliminary Prospectus pursuant to Rule 424(a) or of the
Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by such Rule; and, to such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
Such counsel shall also state that in its capacity as counsel to the
Company, it has participated in conferences with officers and other
representatives of the Company and representatives of the Underwriters and their
counsel, during which the contents of the Registration Statement and the
Prospectus were discussed and reviewed. Such counsel shall further state that
although it is not passing judgment upon, and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the information that
was developed in the course of the performance of the services referred to
above, nothing came to such counsel's attention that has caused it to believe
that the Registration Statement or any further amendment thereto made prior to
such Time of Delivery, on its effective date and as of such Time of Delivery, or
the Prospectus or any further amendment or supplement thereto made prior to such
Time of Delivery, as of its issue date and as of such Time of Delivery, (other
than, in each case, the financial statements and schedules and the other
financial and statistical data included therein, as to which such counsel need
express no belief), contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein in light of the
circumstances in which they were made, not misleading.
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<PAGE> 25
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials and, as to matters involving the
application of the laws of any jurisdiction other than the State of Georgia or
the United States, or the Delaware General Corporation Law, on the opinion or
opinions of local counsel to the extent satisfactory in form and scope to
counsel for the Underwriters, provided that such counsel states that such
counsel has no reason to believe that the Underwriters are not justified in
relying upon such local counsel's opinion or opinions and copies of such opinion
or opinions are delivered to the Representatives and counsel for the
Underwriters.
(d) You shall have received opinions, dated such Time of Delivery,
of Rogers & Hardin, Fulbright & Jaworski L.L.P., Jessica Pollack, Esq. and
Cathy Herbert, Esq., each in its or her capacity as counsel for certain of the
Selling Stockholders, in form and substance satisfactory to you and your
counsel, to the effect that:
(i) This Agreement and the Power of Attorney and Custody
Agreement have each been duly executed and delivered by or on behalf of
each of the Selling Stockholders and, assuming due authorization,
delivery and execution by you and, in the case of the Custody
Agreement, by Continental Stock Transfer and Trust Company, are valid
and binding agreements of each Selling Stockholder enforceable against
each Selling Stockholder in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally, by general principles of equity whether
such enforceability is considered in a proceeding in law or equity and
by the discretion of the court before which any proceeding therefor may
be brought, and except to the extent that rights to indemnity and
contribution hereunder may be limited by federal or state securities
laws or public policy.
(ii) Each Selling Stockholder has duly authorized,
executed and delivered this Agreement and the Power of Attorney and
Custody Agreement and has full legal right, power and authorization,
and any approval required by law, to enter into this Agreement and the
Power of Attorney and Custody Agreement and to sell, assign, transfer
and deliver title to the Shares, free of adverse claims, which such
Selling Stockholder has agreed to sell pursuant to this Agreement,
except that no opinion is hereby expressed as to permits and similar
authorizations under the securities or blue sky laws of the various
states.
(iii) The execution and delivery of this Agreement and the
Power of Attorney and Custody Agreement by the Selling Stockholders
and the consummation of the transactions contemplated hereby and
thereby will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
to such counsel's knowledge, any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument that is
material to such Selling Stockholder and to
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<PAGE> 26
which any Selling Stockholder is a party or to which such Selling
Stockholder or any of their assets or property is subject, nor, if
such Selling Stockholder is a corporation, partnership or other
business entity, will such action conflict with or violate any
provision of the certificate or articles of incorporation and bylaws,
partnership agreement or other organizational documents of such
Selling Stockholder or any statute, rule or regulation or, to such
counsel's knowledge, any order, judgement or decree of any court or
governmental agency or body having jurisdiction over such Selling
Stockholder or any of such Selling Stockholder's properties or assets;
provided, however, that counsel need express no opinion as to the
securities or blue sky laws of the various states.
(iv) Immediately prior to the transactions contemplated by
this Agreement, Geocapital Ventures transferred all right, title and
interest in and to an aggregate of 190,346 of the Shares to certain of
the Unaffiliated Stockholders and Geocapital II, L.P. transferred all
right, title and interest in and to an aggregate of 359,434 of the
Shares to certain of the Unaffiliated Stockholders (such transferred
Shares are hereinafter referred to collectively as the "Geocapital
Shares"). Geocapital Ventures and Geocapital II, L.P. had full right,
power and authorization and approval required by law to transfer and
deliver title to the Geocapital Shares free of adverse claims,
including liens, security interests, pledges, charges, encumbrances,
defects, stockholders' agreements, voting trusts, equities or claims
of any nature whatsoever. [THIS OPINION TO BE PROVIDED BY FULBRIGHT &
JAWORSKI ONLY.]
(v) Delivery of certificates for the Shares to be sold by
such Selling Stockholder pursuant to the terms of this Agreement will
convey all of the rights of such Selling Stockholders in such Shares
to each Underwriter that purchased such Shares for value in good faith
and without notice of any adverse claim with respect thereto, within
the meaning of the Uniform Commercial Code as in effect in the State
of Georgia, free of all adverse claims, including liens, security
interests, pledges, charges, encumbrances, defects, stockholders
agreements, voting trusts, equities or claims of any nature
whatsoever.
(vi) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the sale of
the Shares being sold by such Selling Stockholder or the consummation
of the transactions contemplated by this Agreement or the Power of
Attorney and Custody Agreement except the registration of such Shares
under the Act and such as may be required under state securities or
blue sky laws in connection with the offer, sale and distribution of
such Shares by the Underwriters, as to which laws counsel need express
no opinion.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of the Selling
Stockholders or responsible officers of the Selling Stockholders and public
officials and, as to matters involving the
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<PAGE> 27
application of laws of any jurisdiction other than the State of Georgia or the
United States, or the Delaware General Corporation Law, to the extent
satisfactory in form and scope to counsel for the Underwriters, upon the
opinion or opinions of local counsel, provided that such counsel states such
counsel has no reason to believe that the Underwriters are not justified in
relying upon such opinion or opinions and copies of such opinion or opinions
are delivered to the Representatives and counsel for the Underwriters.
(e) You shall have received from Price Waterhouse, independent
public accountants letters dated, respectively, the date hereof (or, if the
Registration Statement has been declared effective prior to the execution and
delivery of this Agreement, dated such effective date and the date of this
Agreement) and each Time of Delivery, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto. In the event that the letters
referred to in this Section 7(e) set forth any changes, decreases or increases
in the items specified in paragraph (iv) of Annex I, it shall be a further
condition to the obligations of the Underwriters that (i) such letters shall be
accompanied by a written explanation by the Company as to the significance
thereof, unless the Representatives deem such explanation unnecessary, and (ii)
such changes, decreases or increases do not, in your sole judgment, make it
impracticable or inadvisable to proceed with the purchase, sale and delivery of
the Shares being delivered at such Time of Delivery as contemplated by the
Registration Statement, as amended as of the date of such letter.
(f) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor any of its Subsidiaries
shall have sustained (i) any loss or interference with their respective
businesses from fire, explosion, flood, hurricane 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 disclosed in or contemplated by the
Prospectus, or (ii) any change, or any development involving a prospective
change (including without limitation a change in management or control of the
Company), in or affecting the position (financial or otherwise), results of
operations or net worth of the Company and its Subsidiaries taken as a whole,
otherwise than as disclosed in or contemplated by the Prospectus, the effect of
which, in either such case, is in your judgment so material and adverse as to
make it impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares being delivered at such Time of Delivery as contemplated
by the Registration Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof there shall not have occurred
any of the following: (i) any suspension or limitation in trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market, or any
setting of minimum prices for trading on the New Stock Exchange or the Nasdaq
National Market, or any suspension or limitation in trading in the Common Stock
by the Commission or the Nasdaq National Market; (ii) any United States federal
or state statute, regulation, rule or order of any court, legislative body,
agency or other governmental authority shall have been enacted, published,
decreed or promulgated or any proceeding or investigation shall have been
commenced which, in your reasonable judgment, materially and adversely affects
the business or
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<PAGE> 28
operations of the Company; (iii) a moratorium on commercial banking activities
in New York or Florida declared by either federal or state authorities; or (iv)
any outbreak or escalation of hostilities involving the United States,
declaration by the United States of a national emergency or war or any other
national or international calamity or emergency if the effect of any such event
specified in this clause (iv) in your judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the Shares being
delivered at such Time of Delivery as contemplated by the Registration
Statement, as amended as of the date hereof.
(h) The Company shall have furnished to you at such Time of
Delivery certificates of officers of the Company, satisfactory to you as to the
accuracy of the representations and warranties of the Company herein at and as
of such Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the Company shall
have furnished or caused to be furnished certificates as to the matters set
forth in subsections (a) and (f) of this Section 7, and as to such other
matters as you may reasonably request.
(i) Each Selling Stockholder shall have furnished to you at such
First Time of Delivery a certificate of such Selling Stockholder (which may be
executed on behalf of such Selling Stockholder by the Attorney-in-Fact),
satisfactory to you as to the accuracy of the representations and warranties of
such Selling Stockholder herein at and as of such Time of Delivery, as to the
performance by such Selling Stockholder of all of its obligations hereunder to
be performed at or prior to such Time of Delivery, and as to such other matters
as you may reasonably request.
(j) A copy of the Power of Attorney and Custody Agreement executed
by each Selling Stockholder shall have been furnished to your counsel prior to
the First Time of Delivery, along with such information as such counsel may
reasonably request in connection with their review thereof.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
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: (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto, or (ii)
the omission or alleged omission to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, 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, and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, defending against or appearing as a third-party
witness in
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<PAGE> 29
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through you expressly for use therein; and
provided, further, that the Company shall not be liable to any Underwriter in
respect of any Preliminary Prospectus or any amendment or supplement to any
Preliminary Prospectus to the extent that (A) the Prospectus did not contain
the untrue statement or alleged untrue statement or omission or alleged
omission giving rise to such loss, claim, damage or liability, (B) the
Prospectus was not sent or given to the purchaser of the Shares in question at
or prior to the written confirmation of the sale of such Shares to such person
and (C) the failure to deliver such Prospectus was not the result of
non-compliance by the Company with its obligations under Section 5(a)(vi). The
Company will not, without the prior written consent of each Underwriter, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification may be sought hereunder
(whether or not such Underwriter is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of such Underwriter from all liability arising out of
such claim, action, suit or proceeding (or related cause of action or portion
thereof).
(b) Each Selling Stockholder, severally and not jointly, agrees to
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 any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any Preliminary Prospectus, or the Prospectus or
any amendment or supplement thereto, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Selling Stockholder expressly
for use therein, and will reimburse such Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that (i) with respect to the Selling Stockholders, the
foregoing indemnification obligation is limited to those losses, claims,
damages or liabilities arising out of or based upon any untrue statement or
alleged untrue statement of any material fact made in the section of the
Prospectus entitled "Principal and Selling Stockholders," and (ii) the
liability of each Selling Stockholder for indemnification under this Section 8
shall be limited to an amount equal to the net proceeds (after deducting
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<PAGE> 30
commissions) received by such Selling Stockholder from the Underwriters in the
offering; and provided, further, that the Selling Stockholder shall not be
liable to any Underwriter in respect of any Preliminary Prospectus or any
amendment or supplement to any Preliminary Prospectus to the extent that (A)
the Prospectus did not contain the untrue statement or alleged untrue statement
or omission or alleged omission giving rise to such loss, claim, damage or
liability, (B) the Prospectus was not sent or given to the purchaser of the
Shares in question at or prior to the written confirmation of the sale of such
Shares to such person and (C) the failure to deliver such Prospectus was not
the result of non- compliance by the Company with its obligations under Section
5(a)(vi). No Selling Stockholder will, without the prior written consent of
each Underwriter, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action, suit or proceeding (or related
cause of action or portion thereof) in respect of which indemnification may be
sought hereunder (whether or not such Underwriter is a party to such claim,
action, suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of such Underwriter from all liability
arising out of such claim, action, suit or proceeding (or related cause of
action or portion thereof).
(c) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company and each Selling Stockholder against
any losses, claims, damages or liabilities to which the Company or any Selling
Stockholder 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 any untrue statement or alleged untrue statement of
any material fact contained in the Registration Statement, the preliminary
Prospectus 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 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 each Selling Stockholder for any
legal or other expenses reasonably incurred by the Company, such Selling
Stockholder and any controlling person of the Company or such Selling
Stockholder in connection with investigating or defending any such loss, claim,
damage, liability or action. The Company and each of the Selling Stockholders
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, fourth and seventh 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
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<PAGE> 31
indemnified party otherwise than under such subsection. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying 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 reasonably concluded that there may be one or more
legal defenses available to it or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action on behalf of such indemnified party and such indemnified party shall
have the right to select separate counsel to defend such action on behalf of
such indemnified party. After such notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, 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
(it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, which separate counsel shall be
designated by the Representatives in the case of indemnity arising under
paragraph (a) of this Section 8) or (ii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party. Nothing in this Section 8(c) shall preclude an indemnified
party from participating at its own expense in the defense of any such action
so assumed by the indemnifying party.
(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 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 in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Stockholders,
respectively, on the one hand, and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Stockholders, respectively, on the one hand, and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
-31-
<PAGE> 32
Company and the Selling Stockholders, respectively, 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 (before deducting expenses) received by
the Company and the Selling Stockholders, respectively, 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 any Selling Stockholders, respectively, 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
and in the case of a failure to give notice as required under subsection (d)
above, the extent to which the indemnifying party was prejudiced thereby. The
Company, the Selling Stockholders 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 account of 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 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), (i) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (ii) no Selling Stockholder shall be required
to contribute any amount in excess of the amount by which the Shares sold by
such Selling Stockholder were offered to the public exceeds the amount of any
damages which such Selling Stockholder 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 in this subsection (e) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders
under this Section 8 shall be in addition to any liability which the Company or
such Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each officer, director, agent and employee of any
Underwriter and to each person, if any, who controls any Underwriter within the
meaning of the Act or the Exchange Act; the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and any Selling
Stockholder and to each person, if any, who controls the Company or any Selling
Stockholder within the meaning of the Act or the Exchange Act.
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<PAGE> 33
9. DEFAULT OF UNDERWRITERS. (a) If any Underwriter defaults in
its obligation to purchase Shares at a Time of Delivery, you may in your
discretion arrange for you or another party or other parties to purchase such
Shares on the terms contained herein. If within thirty-six (36) hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, the Company shall be entitled to a further period of thirty-six (36)
hours within which to procure another party or other parties satisfactory to
you to purchase such Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Shares, or the Company notifies you that it has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone a Time of Delivery 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 that in your opinion may thereby be
made necessary. The cost of preparing, printing and filing any such amendments
shall be paid for by the Underwriters. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company and the Selling Stockholders as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares 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.
10. TERMINATION. (a) This Agreement may be terminated with respect
to the Firm Shares or any Optional Shares in the sole discretion of the
Representatives by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that
(i) any condition to the obligations of the Underwriters set forth in Section 7
hereof has not been satisfied or (ii) the Company and the Selling Stockholders
shall have failed, refused or been unable to deliver the Shares or to perform
all obligations and satisfy all conditions on its part to be performed or
satisfied hereunder at or prior to such Time of Delivery, in either case other
than by reason of a default by any of the Underwriters. If this Agreement is
terminated pursuant to this Section 10(a), the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by them in
connection with the proposed purchase and sale of the Shares. The Company
shall not in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement.
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<PAGE> 34
(b) If, after giving effect to any arrangements for the purchase
of the Shares of a defaulting Underwriter or Underwriters by you and the
Company as provided in Section 9(a), the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of Shares to
be purchased at such Time of Delivery, or if the Company shall not exercise the
right described in Section 9(b) to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement (or, with respect to a Subsequent Time of Delivery, the obligations
of the Underwriters to purchase and of the Company and the Selling Stockholders
to sell the Optional Shares) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution agreements in Section 8 hereof; but
nothing herein shall relieve a defaulting Underwriter from lability for its
default.
11. SURVIVAL. The respective indemnities, agreements,
representations, warranties and other statements of the Company, its officers,
the several Underwriters and the Selling Stockholders, 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
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person referred to in Section 8(f) or the
Company, or any officer or director or controlling person of the Company
referred to in Section 8(f), or any Selling Stockholder, and shall survive
delivery of and payment for the Shares. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6 and 8 hereof shall
remain in full force and effect, regardless of any termination or cancellation
of this Agreement.
12. NOTICES. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be mailed, delivered or telegraphed
and confirmed in writing to you in care of The Robinson-Humphrey Company, Inc.,
3333 Peachtree Road, N.E., Atlanta, Georgia 30326, Attention: Corporate Finance
Department (with a copy to Hunton & Williams, 951 East Byrd Street, Richmond,
Virginia 23219, Attention: David M. Carter); if sent to the Company, shall be
mailed, delivered or telegraphed and confirmed in writing to the Company at
4501 Vineland Road, Orlando, Florida 32811, Attention: Mark A. Gergel (with a
copy to Rogers & Hardin, 2700 Cain Tower, Peachtree Center, 229 Peachtree
Street,, N.E., Atlanta, Georgia 30308, Attention: Steven E. Fox); and if sent
to the Selling Stockholders shall be mailed, delivered or telegraphed to the
Selling Stockholders in care of Richard A. Vines, Geocapital Partners, One
Bridge Plaza, Fort Lee, New Jersey 07024 (with a copy to Merrill M. Kraines,
Esq., Fulbright & Jaworski L.L.P., 666 Fifth Avenue, New York, New York
10103-3198.
13. REPRESENTATIVES. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you jointly or by The Robinson-Humphrey Company,
Inc. will be binding upon all the Underwriters.
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<PAGE> 35
14. BINDING EFFECT. This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters and the Company and to the
extent provided in Sections 8 and 10 hereof, the officers and directors and
controlling persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15. GOVERNING LAW. This Agreement, including any and all claims
arising out of the relationship among the parties established hereby, shall be
governed by and construed in accordance with the laws of the State of Georgia
without giving effect to any provisions regarding conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto 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.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and
upon the acceptance hereof by The Robinson-Humphrey Company, Inc., on behalf of
each of the Underwriters, this letter will constitute a binding agreement among
the Underwriters, the Selling Stockholders and the Company. It is understood
that your acceptance of this letter on behalf of each of the Underwriters is
pursuant to the authority set forth in the Master Agreement among Underwriters,
a copy of which shall be submitted to the Company for examination, upon
request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours,
WORLD ACCESS, INC.
By:
----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THE SELLING STOCKHOLDERS
By:
----------------------------------------
Name:
----------------------------------
As, Attorney-in-Fact for the Selling
Stockholders
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<PAGE> 36
The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above at
Atlanta, Georgia.
THE ROBINSON-HUMPHREY COMPANY, INC.
WHEAT, FIRST SECURITIES, INC.
INTERSTATE/JOHNSON LANE CORPORATION
By: The Robinson-Humphrey Company, Inc.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
On behalf of each of the Underwriters
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<PAGE> 37
SCHEDULE I
<TABLE>
<CAPTION>
Number of Optional Shares
to be Purchased
Total Number of Firm if Maximum
Underwriter Shares to be Purchased Option Exercised
----------- ---------------------- ----------------
<S> <C> <C>
The Robinson-Humphrey Company, Inc. 1,360,000 204,000
Wheat, First Securities, Inc. 1,320,000 198,000
Interstate/Johnson Lane Corporation 1,320,000 198,000
Total 4,000,000 600,000
========= =======
</TABLE>
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<PAGE> 38
SCHEDULE II
<TABLE>
<CAPTION>
Total Number
of Firm
Shares to be Sold
-----------------
<S> <C> <C>
The Company 3,000,000
Selling Stockholders:
---------------------
James H. Skirkey 275,000
Bell Atlantic Master Pension Trust* 89,569
Henry Burkhardt, III* 3,338
Colgate Palmolive Retirement Trust* 22,253
Collier Enterprises* 85,032
Copley Partners, I L.P.* 13,274
Donald A. and Judith B. Crabtree* 1,112
Creditanstalt American Corporation 75,000
John Dexheimer* 1,112
The Equitable Life Assurance Society of the
United States* 51,291
Equitable Variable Life Insurance Company* 14,063
Glen Fitchet 5,625
Steven R. Francis 5,625
Alexander Howard Gardner* 423
Julie Suzanne Gardner* 445
Nicholas S. Gardner* 445
Bernard Goldstein* 4,451
George Grodahl* 2,225
GTE Service Corp. Plans for Employee Pensions* 90,803
Alden R. and Judith C. Heintz* 2,225
IBM Retirement Fund* 11,112
Industrial Petro-Chemicals, Inc.* 2,225
Janet Jaffin* 2,225
Carl E. Kaplan* 334
Landmark Equity Partners II, L.P.* 33,380
Keith I. Larsen and Sandra K. Larsen 2,720
James Mann* 1,112
Edward Metz* 664
Robert N. O'Hara 75,000
</TABLE>
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<PAGE> 39
<TABLE>
<CAPTION>
Total Number
of Firm
Shares to be Sold
-----------------
<S> <C>
Pantaleoni Associates* 3,318
Henry A. Perry* 4,451
John W. Poduska* 6,671
John P. Rosenthal* 1,108
Trust f/b/o Michael Roth u/w/o Annie Roth* 2,225
Arthur Sarnoff* 2,225
Elizabeth Ann Sarnoff* 1,112
Susan Lynn Sarnoff* 1,112
S.B. Enterprises* 2,655
Steven Sherman 11,250
Irwin W. Silverberg* 1,108
US West Master Trust* 89,570
Joan Wessel* 1,112
---------
Total 1,000,000
=========
</TABLE>
*Indicates that such Selling Stockholder is an "Unaffiliated Stockholder."
-39-
<PAGE> 40
ANNEX I
Pursuant to Section 7(e) of the Underwriting Agreement, Price
Waterhouse, LLP shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect
to the Company and its consolidated subsidiaries within the meaning of
the Act, the Exchange Act and the applicable published rules and
regulations thereunder;
(ii) in their opinion, the consolidated financial
statements and schedules audited by them and included in the
Prospectus and the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder;
(iii) On the basis of a reading of the latest available
interim unaudited consolidated financial statements of the Company and
its consolidated subsidiaries and a reading of the unaudited amounts
for revenues and total and per share amounts of net income for the
[INSERT PERIODS FOR WHICH "CAPSULE" INFORMATION IS PROVIDED] and of
the unaudited consolidated financial statements of the Company and its
consolidated subsidiaries for the periods from which such amounts are
derived, limited procedures, not constituting an audit in accordance
with generally accepted auditing standards, consisting of a reading of
the unaudited financial statements and other information referred to
below, a reading of the latest available interim financial statements
of the Company and its subsidiaries, inspection of the minute books of
the Company and its subsidiaries since the date of the latest audited
financial statements included in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial accounting matters and such other inquiries and procedures
as may be specified in such letter, nothing came to their attention
that caused them to believe that:
(A) the unaudited consolidated financial
statements of the Company and its consolidated subsidiaries
included in the Registration Statement and the Prospectus do
not comply in form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations thereunder or are not in
conformity with generally accepted principles applied on a
basis substantially consistent with that of the audited
consolidated financial statements included in the Registration
Statement and the Prospectus;
(B) as of a specified date not more than 5 days
prior to the date of such letter, there were any changes in
the capital stock (other than the issuance of capital stock
upon exercise of employee stock options that were outstanding
on the date of the latest balance sheet included in the
Prospectus) or any
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<PAGE> 41
increase in inventories or the long-term debt or short-term debt of
the Company and its subsidiaries, or any decreases in net current
assets or net assets or other items specified by the Representatives,
or any increases in any other items specified by the Representatives,
in each case as compared with amounts shown in the latest balance
sheet included in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur, or which are described in such letter; and
(C) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (B) there were any
decreases in revenues or operating income or the total or per
share amounts of net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur, or which are described in such letter; and
(iv) In addition to the audit referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraph (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
that are included in the Registration Statement and the Prospectus, or
which appear in Part II of, or in exhibits or schedules to, the
Registration Statement and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
References to the Registration Statement and the Prospectus in this
Annex I shall include any amendment or supplement thereto at the date of such
letter.
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<PAGE> 42
EXHIBIT A
Subsidiaries
ICC, Inc.
Restor-AIT, Inc.
Sunrise Sierra, Inc.
Westec Communications, Inc.
Ownership Interests Held Directly or Indirectly by the Company and its
Subsidiaries
The Company currently holds 1,200,000 shares of the common stock of
Eagle Telephonics, Inc. and the Company's Subsidiary, Sunrise Sierra, Inc.,
currently holds 7,463 shares of the common stock of Digital Transmission
Systems, Inc.
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<PAGE> 43
EXHIBIT B
Registration Rights
Pursuant to a Registration Rights Agreement dated as of July 11, 1995
between the Company and James H. Shirkey, the Company is obligated (i) to use
its best efforts to include certain shares of the Company's Common Stock issued
to Mr. Shirkey pursuant to the Merger Agreement to which the Company and Mr.
Shirkey are each a party (the "Registrable Securities") in any registration
statement that does not pertain to an underwritten public offering, and (ii) to
include the Registrable Securities in any underwritten public offering unless
the underwriters advise the Company that marketing factors require a limitation
on the number of shares to be underwritten (in which case, the number of shares
of Registrable Securities to be included shall be determined pursuant to
Sections 1.3(b) and 1.9 of the Registration Rights Agreement).
Pursuant to a Registration Rights Agreement dated as of October 31,
1995 between the Company and Robert N. O'Hara, the Company is obligated to
register certain shares of the Company's Common Stock issued to Mr. O'Hara
pursuant to the Merger Agreement to which the Company and Mr. O'Hara are each a
party on or before May 16, 1996.
Pursuant to a Registration Rights Agreement dated as of October 31,
1995 between the Company and Sherman Capital Group L.L.C. ("Sherman"), the
Company is obligated to register certain shares of the Company's Common Stock
issued to Sherman pursuant a Compensation Agreement to which the Company and
Sherman are each a party on or before May 1996.
[EXHIBIT TO BE COMPLETED.]
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