▇▇▇▇▇ RENTS, INC.
4,000,000 SHARES OF COMMON STOCK
PAR VALUE $0.50 PER SHARE
UNDERWRITING AGREEMENT
May 18, 2006
SunTrust Capital Markets, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated
Wachovia Capital Markets, LLC
BB&T Capital Markets, a division of ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
c/o SunTrust Capital Markets, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇ Rents, Inc., a Georgia corporation (the "Company"), and R. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇., in his individual capacity (in such capacity "Selling
Shareholder"), propose to sell to the several underwriters named in Schedule I
(collectively, the "Underwriters") an aggregate of 4,000,000 shares (the "Firm
Shares") of the Company's common stock, $0.50 par value per share (the "Common
Stock"), of which 3,000,000 shares will be sold by the Company and 1,000,000
shares will be sold by the Selling Shareholder. The Firm Shares are to be sold
to each Underwriter, acting severally and not jointly, in such amounts as are
set forth in Schedule I opposite the name of such Underwriter.
Solely for the purpose of covering over-allotments in the sale of the Firm
Shares, the Company and the Selling Shareholder grant to the Underwriters an
option to purchase up to an additional 600,000 shares of Common Stock, of which
450,000 shares may be sold by the Company and 150,000 shares may be sold by the
Selling Shareholder (the "Option Shares"), which option shall be exercisable in
the manner, and such Option Shares shall be sold in the denominations, set forth
in Section 3(b) below. The Firm Shares and Option Shares are herein sometimes
referred to as the "Shares."
Section 1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has prepared an "automatic shelf registration statement"
(as defined in Rule 405 of the Securities Act of 1933, as amended (the
"Securities Act")) on Form S-3 (File No. 333-133913) with respect to the Shares,
including a preliminary form of prospectus subject to completion, in conformity
with the requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (all such rules
and regulations, including, without limitation, Regulation S-X and Regulation
S-K to the extent applicable, are referred to as the "Securities Act
Regulations"). Such registration statement became effective under the Securities
Act not earlier than the date that is three years prior to the date hereof and
is effective under the
Securities Act. The Company has prepared in the same manner, and proposes to
file with the Commission, a final prospectus in accordance with Rules 430B and
424(b) of the Securities Act Regulations.
The term "Registration Statement" as used in this Agreement shall mean
such registration statement at the time such registration statement became
effective and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Time (as defined below), shall also mean such
registration statement as so amended; provided, however, that such term shall
also include all Rule 430B Information contained in any Prospectus (as defined
below) and deemed to be included in such registration statement at the time such
registration statement became effective as provided by Rule 430B of the
Securities Act Regulations. The term "Effective Date" shall mean the date and
time when the Registration Statement became and the time when any post-effective
amendment thereto becomes effective under the Securities Act. The term
"Preliminary Prospectus" shall mean any preliminary prospectus referred to in
the preceding paragraph or any preliminary prospectus filed with the Commission
pursuant to Rule 424(b) of the Securities Act Regulations. The term "Prospectus"
as used in this Agreement shall mean the final prospectus relating to the Shares
in the form in which it is filed with the Commission pursuant to Rule 424(b) of
the Securities Act Regulations. The term "Free Writing Prospectus" as used
herein shall have the meaning set forth in Rule 405 of the Securities Act
Regulations. The term "Issuer Free Writing Prospectus" as used herein shall have
the meaning set forth in Rule 433 of the Securities Act Regulations. The term
"Disclosure Package" as used herein shall mean the Preliminary Prospectus as
most recently amended or supplemented prior to the Initial Time of Sale (as
defined below), together with the Issuer Free Writing Prospectuses, if any,
identified in Schedule II hereto, any other Free Writing Prospectuses that the
parties hereto shall hereafter expressly agree to treat as part of the
Disclosure Package and the pricing terms of the offering of the Shares specified
on Schedule III hereto. The term "Rule 430B Information" means information with
respect to the Shares and the offering thereof permitted pursuant to Rule 430B
of the Securities Act Regulations to be omitted from the Registration Statement
when it became effective. Any references in this Agreement to the Registration
Statement, the Preliminary Prospectus, the Disclosure Package and the
Prospectus, or any amendments or supplements to any of the foregoing, shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to paragraph (a) of Item 12 of Form S-3 under the Securities Act as of
the effective date of the Registration Statement or the date of Disclosure
Package or the Prospectus, as the case may be, and any reference to any
amendment or supplement to the Registration Statement, the Disclosure Package or
the Prospectus shall be deemed to refer to and include any documents filed after
such date under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which, upon filing, are incorporated by reference therein, unless
expressly stated otherwise, as required by paragraph (b) of Item 12 of Form S-3.
As used herein, the term "Incorporated Documents" means the documents which are
or will be incorporated by reference in the Prospectus, or any amendment or
supplement thereto during the period the Prospectus (or in lieu thereof the
notice referred to in Rule 173(a) of the Securities Act Regulations) is required
under the Securities Act to be delivered in connection with the sale of the
Shares by the Underwriters or any dealer (the "Prospectus Delivery Period"). The
"Initial Time of Sale" means 7:20 p.m. Eastern time on the date hereof.
(b) At the time of filing of the Registration Statement and at the time
the Company or any person acting on its behalf (within the meaning, for this
clause only, of Rule 163(c) of the Securities Act Regulations) made any offer
relating to the Shares in reliance on Rule 163, the Company was a "well-known
seasoned issuer" (as defined in Rule 405 of the Securities Act Regulations)
eligible to use
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Form S-3 under the Securities Act, including not having been an "ineligible
issuer" (as defined in Rule 405 of the Securities Act Regulations) at any of
such times. The Company has not received any objection from the Commission
pursuant to Rule 401(g)(2) of the Securities Act Regulations objecting to the
use of the automatic shelf registration statement form.
(c) No stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of the Disclosure Package or the
Prospectus has been issued under the Securities Act, and no proceedings for any
such purpose have been instituted or, to the knowledge of the Company, are
threatened by the Commission or the state securities authority of any
jurisdiction (and any request on the part of the Commission or any such state
securities authority for additional information has been complied with).
(d) The Registration Statement conformed and will conform in all material
respects on the Effective Date and the Closing Date (as defined in Section
3(c)), and any amendment to the Registration Statement filed after the date of
this Agreement will conform in all material respects when filed with the
Commission, to the requirements of the Securities Act and the Securities Act
Regulations. Each Preliminary Prospectus conformed, and the Prospectus and any
amendments or supplements thereto will conform in all material respects when
filed with the Commission to the requirements of the Securities Act and the
Securities Act Regulations.
(e) The Registration Statement did not, as of the Effective Date, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statement or omission made in reliance upon and in conformity with
information furnished in writing to the Company (i) by any Underwriter expressly
for use in the Registration Statement, it being understood and agreed that the
only such information consists of the information specified in Section 9(f)
hereof or (ii) by the Selling Shareholder expressly for use in the preparation
of the answers therein to Item 7 of Form S-3.
(f) The Prospectus will not, as of its date and on any Closing Date,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statement
or omission made in reliance upon and in conformity with information furnished
in writing to the Company (i) by any Underwriter expressly for use therein, it
being understood and agreed that the only such information consists of the
information specified in Section 9(f) hereof or (ii) by the Selling Shareholder
expressly for use in the preparation of the answers therein to Item 7 of
Form S-3.
(g) The Disclosure Package did not, at the Initial Time of Sale, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any statement
or omission made in reliance upon and in conformity with information furnished
in writing to the Company (i) by any Underwriter expressly for use therein, it
being understood and agreed that the only such information consists of the
information specified in Section 9(f) hereof and (ii) by the Selling Shareholder
expressly for use in the preparation of the answers therein to Item 7 of Form
S-3.
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(h) The Incorporated Documents conformed when filed, and any further
Incorporated Documents will conform when filed, in all material respects with
the requirements of the Exchange Act and the rules and regulations thereunder;
the Incorporated Documents did not, and any further Incorporated Documents will
not, when filed contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(i) The Company has not made (other than as listed on Schedule II) any
offer relating to the Shares that would constitute an Issuer Free Writing
Prospectus without the prior consent of SunTrust Capital Markets, Inc.
("SunTrust") on behalf of the Underwriters; the Company has complied with the
requirements of Rule 433 of the Securities Act Regulations with regard to each
Issuer Free Writing Prospectus; and each Issuer Free Writing Prospectus, as of
its issue date and at all times through the completion of the offering and sale
of the Shares, did not and will not include any information that conflicts with
the information contained in the Registration Statement and the Prospectus. Each
Issuer Free Writing Prospectus, when taken together with the information
contained in the Registration Statement, the most recent Preliminary Prospectus,
the Prospectus and any other Free Writing Prospectus that the Company and the
Underwriters have agreed to treat as part of the Disclosure Package, did not,
when issued and filed pursuant to Rule 433, and does not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(j) The Company and each subsidiary of the Company listed on Schedule 2(j)
(individually a "Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with all requisite corporate
power and authority to own and lease its properties and conduct its business as
currently carried on and as contemplated in the Disclosure Package and the
Prospectus. The Company and each Subsidiary is duly qualified to do business and
is in good standing as a foreign corporation in every jurisdiction in which the
ownership or leasing of its properties or the nature or conduct of its business,
as currently carried on and as contemplated in the Disclosure Package and the
Prospectus, requires such qualification, except where the failure to do so would
not reasonably be expected to have a material adverse effect on the business,
financial condition, results of operations or cash flows of the Company and its
Subsidiaries taken as a whole or on the ability of the Company to consummate the
transactions contemplated by this Agreement (a "Material Adverse Effect"). Other
than the Subsidiaries, the Company does not own, directly or indirectly, any
capital stock or other equity securities or interests representing greater than
5% of the outstanding capital stock or other equity securities or interests of
any corporation, partnership, limited liability company, joint venture,
association or other entity.
(k) All of the issued and outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued and are fully paid and
non-assessable; and except as set forth in the Disclosure Package and the
Prospectus, all of the capital stock of each Subsidiary is owned by the Company,
directly or through its Subsidiaries, free from all liens, encumbrances,
equities and claims.
(l) The Company has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions, including the issuance,
sale and delivery of the Shares, contemplated hereby. This Agreement has been
duly authorized, executed and delivered by the Company.
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(m) Each consent, approval, authorization, order, designation or filing by
or with any court or governmental agency or body necessary for the valid
authorization, issuance, sale and delivery of the Shares, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby has been made or obtained by the Company and is
in full force and effect, except as may be required under applicable state
securities or Blue Sky laws. The issuance, sale and delivery of the Shares, the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby (i) will not result in a breach or
violation of any of the terms and provisions of, or constitute a default by the
Company or any Subsidiary under, its articles or certificate of incorporation or
bylaws, each as amended, (ii) will not result in a breach or violation of any of
the terms or provisions of, or constitute a default by the Company or any
Subsidiary, under, any provision of any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the Company or
any Subsidiary is a party or to which it or its properties or assets is subject
and (iii) will not result in a breach or violation of any statute, rule or
regulation applicable to, or any judgment, decree or order of any court or
governmental agency or body having jurisdiction over, the Company or any
Subsidiary or any of their properties.
(n) The authorized, issued and outstanding capital stock of the Company is
set forth in the Disclosure Package and the Prospectus under the caption
"Capitalization." All of the issued and outstanding shares of capital stock of
the Company have been duly and validly issued and are fully paid and
non-assessable and conform to the description of the capital stock of the
Company contained in the Disclosure Package and the Prospectus. There are no
preemptive or other similar rights to subscribe for or to purchase any
securities of the Company. Except as described in the Disclosure Package and the
Prospectus, there are no warrants, options or other rights to purchase any
securities of the Company. Neither the filing of the Registration Statement nor
the offering or sale of the Shares as contemplated by this Agreement gives rise
to any rights for or relating to the registration of any securities of the
Company with respect to such filing, offering or sale.
(o) The Shares to be sold by the Company have been duly and validly
authorized and, when issued and delivered by the Company and paid for pursuant
to this Agreement, will be duly and validly issued, fully paid and
non-assessable and will conform in all material respects to the description
thereof contained in the Disclosure Package and the Prospectus.
(p) The consolidated historical financial statements of the Company
(including all related notes) included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus present fairly
the consolidated financial position, results of operations, shareholders' equity
and cash flows of the Company and the Subsidiaries at the indicated dates and
for the indicated periods; such financial statements have been prepared in
conformity with accounting principles generally accepted in the United States
("GAAP") applied on a consistent basis throughout the periods involved (except
as noted in the notes thereto). No other financial statements or schedules are
required by Form S-3 or otherwise to be included or incorporated by reference in
either the Registration Statement, the Disclosure Package or the Prospectus. The
financial information included under the headings "Prospectus Summary--Summary
Financial and Operating Data," "Capitalization," "Selected Financial and
Operating Data," and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included in the Disclosure Package and the
Prospectus presents fairly the information shown therein and, to the extent
based upon or derived from the historical consolidated
5
financial statements of the Company, has been compiled on a basis consistent
with such financial statements.
(q) Ernst & Young LLP, which has examined and is reporting upon certain of
the audited financial statements included or incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to the Company and
its Subsidiaries within the meaning of the Securities Act and the Securities Act
Regulations.
(r) Neither the Company nor any of its Subsidiaries has sustained, since
December 31, 2005, any material loss or interference with its business from
fire, explosion, flood, hurricane, accident or other calamity, whether or not
covered by insurance, or from any labor dispute or arbitration, or from any
court or governmental action or inaction, order or decree, otherwise than as set
forth or contemplated in the Disclosure Package and the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Prospectus, there has not been (i) any
change in the outstanding capital stock (other than pursuant to the Company's
401(k) plan or pursuant to the exercise of outstanding stock options granted
under stock option plans of the Company described in the Prospectus), long-term
debt, obligations under capital leases or short-term borrowings of the Company
or any of its Subsidiaries, (ii) any event or development which could reasonably
be expected to have a Material Adverse Effect; or (iii) any liability or
obligation, direct or contingent, incurred or undertaken by the Company or any
of its Subsidiaries, except for liabilities or obligations incurred in the
ordinary course of business or which otherwise would not reasonably be expected
to have a Material Adverse Effect, otherwise than as set forth or contemplated
in the Prospectus.
(s) Neither the Company nor any of its Subsidiaries is in breach of or
default (nor has any event occurred, nor does any state of facts exist, which
with notice or after the lapse of time or both, would constitute a breach or
default) under (i) its articles or certificate of incorporation or bylaws, (ii)
any indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which it, any of its Subsidiaries or any of their respective
properties is subject or (iii) any statute, rule or regulation applicable to, or
any judgment, decree or order of any court or governmental agency or body having
jurisdiction over, the Company or any of its Subsidiaries except in the case of
(ii) or (iii) where the consequences of such breach or default would not
reasonably be expected to have a Material Adverse Effect.
(t) Except as otherwise disclosed in the Disclosure Package and the
Prospectus, (i) the Company has not authorized or conducted, and otherwise has
no knowledge of the generation, transportation, storage, presence, use,
treatment, disposal, release or handling of (in an amount or of a type that has
been or must be reported to any governmental agency, violates any Environmental
Law (as hereinafter defined), or has required or could require remediation
expenditures) any hazardous substance, asbestos, radon, polychlorinated biphenyl
("PCBs"), petroleum product or waste (including crude oil or any fraction
thereof), natural gas, liquefied gas, synthetic gas or other material defined,
regulated, controlled or potentially subject to any remediation requirement
under any Environmental Law (collectively, "Hazardous Materials"), on, at, in,
or under any real property owned, leased or used by the Company or any of its
Subsidiaries, (ii) to the knowledge of the Company, the Company and each of its
Subsidiaries are in compliance with all federal, state and local laws,
ordinances, rules, regulations and other governmental requirements relating to
pollution, control of chemicals, management of waste,
6
releases or discharges of Hazardous Materials, health, safety, natural
resources, or the environment (collectively, "Environmental Laws") and (iii) to
the knowledge of the Company, the Company and each of its Subsidiaries have
obtained, and is in compliance with, all licenses, permits, registrations and
government authorizations necessary to operate under all applicable
Environmental Laws. Except as otherwise disclosed in the Disclosure Package and
the Prospectus, neither the Company nor any of its Subsidiaries have received
any written or oral notice from any governmental entity or any other person, and
there is no pending or, to the knowledge of the Company or any of its
Subsidiaries, threatened claim, litigation or any administrative agency
proceeding, that: (A) alleges a violation of any Environmental Laws by the
Company or any of its Subsidiaries, (B) alleges that the Company or any of its
Subsidiaries is a liable party or a potentially responsible party under the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601, et seq., or any similar state law, (C) has resulted in or could
result in the attachment of an environmental lien on any real property owned,
leased or used by the Company or any of its Subsidiaries or (D) alleges the
existence of contamination or a release of Hazardous Materials at, on, under,
in, or from any of such real property, damage to natural resources, property
damage, or personal injury based on activities of the Company or any of its
Subsidiaries, or the activities of its predecessors, if any, or third parties
(whether at the real property or elsewhere) involving Hazardous Materials,
whether arising under the Environmental Laws, common law principles, or other
legal standards.
(u) The Company and each of its Subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title to all
material items of personal property owned by them, in each case free and clear
of all liens, encumbrances, equities and claims except such as are described in
the Disclosure Package and the Prospectus or such as are not materially
burdensome and do not have or will not have a Material Adverse Effect on the use
of the property or conduct of the business of the Company; and any real property
and buildings held under lease by the Company or any of the Subsidiaries are
held under valid, subsisting and enforceable leases with such exceptions as in
the aggregate are not materially burdensome and do not have or result in a
Material Adverse Effect.
(v) Except as described in the Disclosure Package and the Prospectus,
there is not pending, nor to the Company's knowledge threatened, any action,
suit, proceeding, inquiry or investigation against the Company, any of its
Subsidiaries or to which the properties, assets or rights of the Company or any
of its Subsidiaries are subject, before or brought by any court or governmental
agency or body or board of arbitrators, which would, if determined adversely to
the Company, reasonably be expected to have a Material Adverse Effect.
(w) There are no contracts or other documents required by the Securities
Act or the Securities Act Regulations to be described in the Registration
Statement, the Disclosure Package or the Prospectus or to be filed as an exhibit
to the Registration Statement, which have not been described or filed as
required.
(x) The Company and each of its Subsidiaries holds and is operating in
compliance with all permits, licenses, approvals, consents, orders,
certifications and other authorizations (collectively, "Governmental Licenses")
issued by, and have made all declarations and filings with, the appropriate
federal, state or local governmental agencies or bodies as are necessary to own
or lease its properties and to carry on its businesses as presently conducted,
except where a failure to so declare, file, own, possess
7
or obtain such Governmental Licenses or to be in compliance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(y) The Company and its Subsidiaries maintain a system of internal control
over financial reporting sufficient to provide reasonable assurance that
financial reporting is reliable and financial statements for external purposes
are prepared in accordance with GAAP and includes policies and procedures that
(i) pertain to the maintenance of records that in reasonable detail accurately
and fairly reflect the transactions and dispositions of the assets of the
Company and its Subsidiaries, (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial
statements in accordance with GAAP and that receipts and expenditures of the
Company and its Subsidiaries are being made only in accordance with applicable
law and the authorizations of management and the boards of directors of the
Company and its Subsidiaries; and (iii) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use or disposition
of the Company and its Subsidiaries' assets that could have a material effect on
the consolidated financial statements of the Company.
(z) The Company has established and maintains disclosure controls and
procedures (as defined in Exchange Act Rule 13a-15(e)) that are designed to
ensure that information required to be disclosed by the Company in the reports
that it has filed or will file under the Exchange Act is recorded, processed,
summarized and reported within the time periods specified in the Commission's
rules and forms.
(aa) The Company is in compliance, in all material respects, with all
applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, including the related
rules and regulations promulgated thereunder by the Commission and the New York
Stock Exchange (the "NYSE").
(bb) Neither the Company nor any Subsidiary has extended or maintained
credit, arranged for the extension of credit, or renewed any extension of
credit, in each case in the form of a personal loan to or for any director or
executive officer (or equivalent thereof) of the Company and/or such Subsidiary
except for such extensions of credit as are (i) permitted by Section 13(k) of
the Exchange Act or (ii) fully repaid, discharged, forgiven or otherwise no
longer outstanding or owing in any way.
(cc) The Company and each Subsidiary have filed all federal, state, local
and foreign income, franchise, property and other tax returns and tax forms
required to be filed or has duly obtained extensions of time for the filing
thereof (other than certain state or local tax returns, as to which the failure
to file, individually or in the aggregate, would not have a Material Adverse
Effect). The Company or such Subsidiary has paid or made adequate reserves for
any taxes that were payable pursuant to said returns, other than any which the
Company or any Subsidiary is contesting in good faith and as to which adequate
reserves have been provided. Such returns and forms are complete and correct in
all material respects. The charges, accruals and reserves on the books of the
Company and each Subsidiary in respect of any tax liability for any year not
finally determined are adequate to meet any assessments or reassessments for
additional taxes. There have been no tax deficiencies asserted or, to the
knowledge of the Company, which might be reasonably asserted against the Company
or any Subsidiary that would individually or in the aggregate reasonably be
expected to have a Material Adverse Effect.
8
(dd) Neither the Company nor any of its Subsidiaries, nor any of their
officers, directors, or affiliates, have taken directly or indirectly, any
action designed to, or that might be reasonably expected to, cause or result in
or constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares or that violates
Regulation M of the Commission in any respect.
(ee) The Common Stock has been registered pursuant to Section 12(b) of the
Exchange Act, and the Shares have been approved for listing on the NYSE, subject
to official notice of issuance.
(ff) The Company 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 other than as
contemplated hereby or as described in the Disclosure Package and the
Prospectus.
(gg) The Company has not sold or issued any securities that would be
integrated with the offering of the Shares pursuant to the Securities Act or the
Securities Act Regulations or interpretations thereof by the Commission.
(hh) No relationship, direct or indirect, exists between or among the
Company or any Subsidiary on the one hand, and the directors, officers,
shareholders, employees, affiliates, customers or suppliers of the Company or
any Subsidiary on the other hand, which is required to be described in the
Disclosure Package and the Prospectus and which is not so described.
(ii) Except as otherwise disclosed in the Disclosure Package and the
Prospectus, each employee benefit plan established, maintained or contributed to
by the Company or any Subsidiary (including but not limited to those benefit
plans defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")), the administrator and fiduciaries of each employee
benefit plan, the Company and each Subsidiary are in compliance (i) in all
material respects with all currently applicable provisions of ERISA, (ii) in all
material respects with the applicable provisions of the Internal Revenue Code of
1986, as amended (the "Code") and (iii) in all material respects with the
applicable requirements of any other statute, rule or regulation governing each
employee benefit plan; to the Company's and each Subsidiary's knowledge, no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in Section 3(2) ERISA) for which the Company or any
Subsidiary would have any liability; neither the Company nor any Subsidiary has
incurred, and does not expect to incur, liability under (A) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or (B)
Sections 412 or 4971 of the Code; and each "pension plan" for which the Company
or any Subsidiary would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, that would
reasonably be expected to cause the loss of such qualification.
Section 2. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to each Underwriter and agrees that:
(a) This Agreement has been duly executed and delivered by the Selling
Shareholder.
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(b) Each consent, approval, authorization, order, designation or filing by
or with any court or governmental agency or body necessary for the sale and
delivery of the Shares to be sold by the Selling Shareholder, the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby by the Selling Shareholder, has been made or
obtained, and is in full force and effect, except as may be required under
applicable state securities or Blue Sky laws. The sale and delivery of the
Shares by the Selling Shareholder, the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby (i)
will not result in a breach or violation of any of the terms or provisions of,
or constitute a default by the Selling Shareholder under, any provision of any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Selling Shareholder is a party or by which
he is bound and (ii) will not result in a breach or violation of any statute,
rule or regulation applicable to, or any judgment, decree or order of any court
or governmental agency or body having jurisdiction over, the Selling Shareholder
or any of his properties.
(c) The Selling Shareholder has good and valid title to the Shares being
sold by him hereunder, free and clear of any and all liens, encumbrances,
equities and claims.
(d) The Shares to be sold by the Selling Shareholder pursuant to this
Agreement are certificated securities in registered form and are not held in any
securities account or by or through any securities intermediary within the
meaning of the Uniform Commercial Code as in effect in the State of Georgia.
Upon the delivery of and payment for such Shares as contemplated herein, the
Underwriters will receive good title to the Shares purchased by them,
respectively, from the Selling Shareholder, free and clear of any and all liens,
encumbrances, equities and claims.
(e) The Selling Shareholder has not taken, and will not take, directly or
indirectly, any action which might reasonably be expected to cause or result in
the stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares to be sold by him or that violates
Regulation M of the Commission in any respect.
(f) Except as set forth in the Disclosure Package and the Prospectus, the
Selling Shareholder is disposing of his Shares hereunder for his own account and
is not selling such Shares, directly or indirectly, for the benefit of the
Company.
(g) The Selling Shareholder (i) does not have any rights for or relating
to the registration of any securities of the Company with respect to the filing
of the Registration Statement or the offering or sale of the Shares as
contemplated by this Agreement, (ii) does not have any preemptive or similar
right to purchase any of the Shares that are to be sold by the Company pursuant
to this Agreement and (iii) except as described in the Disclosure Package and
the Prospectus, does not own any warrants, options or other rights to purchase
any securities of the Company.
(h) The Selling Shareholder is familiar with the Registration Statement
and the Disclosure Package, the information set forth therein respecting him is
true and complete and he knows of no material adverse information with respect
to the business operations of the Company and the Subsidiaries that is not
disclosed in the Registration Statement and the Disclosure Package.
10
(i) Neither the Selling Shareholder nor any of his affiliates, directly,
or indirectly through one or more intermediaries, is or controls, is controlled
by, or is under common control with, or is associated with, any member firm of
the National Association of Securities Dealers, Inc. (the "NASD").
(j) The Selling Shareholder does not believe that any of the
representations and warranties of the Company contained in Section 1 hereof are
not true and correct in all material respects.
(k) The Selling Shareholder 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 other
than as contemplated hereby.
(l) The Selling Shareholder has not made any offer relating to the Shares
that would constitute a Free Writing Prospectus (a "Selling Shareholder Free
Writing Prospectus") without the prior consent of SunTrust on behalf of the
Underwriters, and he has not used, referred to or distributed any such Selling
Shareholder Free Writing Prospectus. The Selling Shareholder has complied with
the requirements of Rule 433 the Securities Act Regulations with regard to each
Selling Shareholder Free Writing Prospectus.
Section 3. Sale and Delivery of Shares to the Underwriters; Closing.
(a) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the Company and the
Selling Shareholder agree to sell to the Underwriters named in Schedule I
hereto, and the Underwriters agree, severally and not jointly, to purchase from
the Company and the Selling Shareholder, at a purchase price of $24.4625 per
share (representing a public offering price of $25.75 per share, less an
underwriting discount of $1.2875 per share), the aggregate number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto.
(b) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, the Company and the
Selling Shareholder hereby grant an option to the Underwriters, severally and
not jointly, to purchase up to an additional 600,000 Option Shares on the same
terms and conditions as the Firm Shares. The option hereby granted will expire
if not exercised within the 30-day period after the date of this Agreement. The
option granted hereby may be exercised by the Underwriters, in whole or in part
(but not more than once), only for the purpose of covering over-allotments that
may be made in connection with the offering and distribution of the Firm Shares,
by giving written notice to the Company. The notice of exercise shall set forth
the number of Option Shares as to which the several Underwriters are exercising
the option and the time and date of payment and delivery thereof. Such time and
date of delivery (the "Date of Delivery") shall be determined by SunTrust but
shall not be earlier than the second business day after the date on which the
notice of the exercise of the option shall have been given nor later than seven
full business days after the exercise of such option, nor in any event prior to
the Closing Time. Upon exercise of such option, the obligations of each
Underwriter shall be to purchase that number of Option Shares determined (as
adjusted by SunTrust in such a manner to avoid fractional shares) by multiplying
the number of Option Shares being purchased by all Underwriters by a fraction,
the numerator of which is the number of Firm Shares set forth opposite the name
of such Underwriter on Schedule I and the denominator of which is the total
number of Firm Shares.
11
(c) Payment of the purchase price for and delivery of the Firm Shares
shall be made at the offices of ▇▇▇▇▇▇ & Bird LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such other place as shall be agreed upon by
the Company and SunTrust, at 9:00 A.M., either (i) on the third business day
after the "trade" date determined pursuant to rules of the Commission, or (ii)
at such other time not more than ten full business days thereafter as SunTrust
and the Company shall determine (unless, in either case, postponed pursuant to
Section 12 hereof) (such date and time of payment and delivery being herein
called the "Closing Time") (the Closing Time and the Date of Delivery, if any,
being sometimes referred to as a "Closing Date"). In addition, in the event that
any or all of the Option Shares are purchased by the Underwriters, payment of
the purchase price for and delivery of the Option Shares shall be made at the
offices of ▇▇▇▇▇▇ & Bird LLP in the manner set forth above, or at such other
place as the Company and SunTrust shall determine, on the Date of Delivery as
specified in the notice from SunTrust to the Company. Payment for the Firm
Shares and the Option Shares in immediately available funds shall be made by
wire transfer to the respective bank accounts designated by the Company and the
Selling Shareholder, against delivery to the Underwriters of the Shares to be
purchased by them.
(d) The Shares to be purchased by the Underwriters shall be in such
denominations and registered in such names as the Underwriters may request in
writing at least two full business days before the Closing Date. The Shares will
be made available at the offices of the transfer agent for the Common Stock, or
at such other place as SunTrust may designate, for examination and packaging not
later than 9:00 A.M. (prevailing Eastern time) at least one full business day
prior to the Closing Time or the Date of Delivery, as the case may be.
(e) Each of the Company and the Selling Shareholder acknowledges and
agrees that the Underwriters are acting solely in the capacity of an arm's
length contractual counterparty to the Company and the Selling Shareholder with
respect to the offering of Shares contemplated hereby (including in connection
with the process leading thereto and the determination of the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the
Company, the Selling Shareholder or any other person. Additionally, none of the
Underwriters is advising the Company or the Selling Shareholder as to any legal,
tax, investment, accounting or regulatory matters in any jurisdiction. Each of
the Company and the Selling Shareholder shall consult with its own advisors
concerning such matters to the extent it or he deems appropriate and shall be
responsible for making its own independent investigation and appraisal of the
transactions contemplated hereby. Any review by the Underwriters of the Company,
the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Underwriters as
principals and shall not be on behalf of the Company or the Selling Shareholder.
Each of the Company and the Selling Shareholder agrees that it will not claim
that the Underwriters, or any of them, has rendered advisory services of any
nature, or owes a fiduciary or similar duty, to the Company or the Selling
Shareholder in connection with the transactions contemplated hereby or the
process leading thereto.
Section 4. Certain Covenants of the Company. The Company covenants and
agrees with each Underwriter as follows:
(a) The Company will prepare and file the Prospectus in a form reasonably
acceptable to the Underwriters and file the Prospectus, pursuant to the
applicable provisions of Rule 424(b) of the Securities Act Regulations, not
later than the Commission's close of business on the second business day
following the execution and delivery of this Agreement. The Company promptly
will notify the
12
Underwriters and confirm the notice in writing (i) when any amendment or
supplement to the Registration Statement or the Prospectus shall have been filed
and will furnish the Underwriters with copies thereof, (ii) of any request by
the Commission that the Company amend or supplement the Registration Statement,
the Prospectus or any Issuer Free Writing Prospectus or for additional
information, (iii) of any objection by the Commission to the use of the form of
the Registration Statement or any amendment thereto, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the Prospectus or
any Issuer Free Writing Prospectus and (v) of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction or of the
institution or threat of any proceedings for any of such purposes. In the event
of the issuance of any stop order or of any order preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus or suspending any
such qualification, the Company promptly will use its best efforts to obtain its
withdrawal; if at any time during the Prospectus Delivery Period, the Company
receives from the Commission a notice pursuant to Rule 401(g)(2) of the
Securities Act Regulations or otherwise ceases to be eligible to use the
automatic shelf registration statement form, the Company will (i) promptly
notify the Underwriters, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Shares in a form
satisfactory to the Underwriters, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared effective
under the Securities Act as soon as practicable and (iv) promptly notify the
Underwriters of such effectiveness. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Shares to
continue as contemplated in the Registration Statement that was the subject of
the Rule 401(g)(2) notice. References herein to the Registration Statement shall
include such new registration statement or post-effective amendment as the case
may be.
(b) The Company will pay the required Commission filing fees relating to
the Shares within the time period required by Rule 456(b) of the Securities Act
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the Securities Act Regulations.
(c) During the Prospectus Delivery Period, the Company will not file or
make any amendment to the Registration Statement or any amendment or supplement
to the Prospectus, any Incorporated Document or any Issuer Free Writing
Prospectus in any case if the Underwriters shall not have previously been
advised and furnished a copy thereof a reasonable time prior to the proposed
filing, or if the Underwriters or counsel for the Underwriters shall reasonably
and promptly object to such amendment or supplement.
(d) The Company will deliver promptly to each Underwriter, at the
Company's expense, conformed copies of the Registration Statement as originally
filed with the Commission (without exhibits). The Company will deliver to each
Underwriter, at the Company's expense, from time to time, as many copies of each
Preliminary Prospectus, the Prospectus (as supplemented or amended) and each
Issuer Free Writing Prospectus as such Underwriter may reasonably request. The
Company hereby consents to the use, in accordance with the provisions of the
Securities Act, Securities Act Regulations and the securities or Blue Sky laws
of the jurisdictions in which the Shares are offered by the Underwriters, of
such copies so furnished by the Company. If during the Prospectus Delivery
Period (i) any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not
13
misleading or (ii) for any reason it shall be necessary to amend or supplement
the Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act, the
Securities Act Regulations or the Exchange Act, the Company will notify the
Underwriters and upon your request prepare promptly and furnish without charge
to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus, which will correct such statement or omission or effect
such compliance.
(e) The Company will obtain the consent of SunTrust on behalf of the
Underwriters before making any offer of Shares that would constitute an Issuer
Free Writing Prospectus or be required to filed as a Free Writing Prospectus
pursuant to Rule 433(d) of the Securities Act Regulations, other than the Issuer
Free Writing Prospectuses listed on Schedule II hereto. The Company will comply
with Rule 433 of the Securities Act Regulations with regard to each Issuer Free
Writing Prospectus.
(f) If any event shall occur or condition exist as a result of which any
Issuer Free Writing Prospectus, as then amended or supplemented, (i) would
conflict with the information in the Registration Statement, the most recent
Preliminary Prospectus or the Prospectus or (ii) would contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, or if for any other reason it shall be necessary to
amend or supplement any Issuer Free Writing Prospectus, the Company will notify
the Underwriters and upon your request prepare promptly and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Issuer Free Writing Prospectus which will correct such statement or
omission or effect such compliance.
(g) Promptly, from time to time, the Company will take such action, in
cooperation with the Underwriters, to qualify the Shares for offering and sale
under the applicable securities or Blue Sky laws of such states and other
jurisdictions as the Underwriters may designate and to maintain such
qualifications in effect for as long as may be necessary to complete the
distribution of the Shares; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not otherwise so subject.
The Company will file such statements and reports as may be required by the laws
of each jurisdiction in which the Shares have been qualified as above provided.
(h) The Company will use the net proceeds received by it from the sale of
the Shares in the manner specified in the Prospectus under the caption "Use of
Proceeds".
(i) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 16 months after the date of
this Agreement, an earnings statement complying with the provisions of Section
11(a) of the Securities Act and Rule 158 of the Securities Act Regulations and
covering a period of at least 12 months beginning after the date of this
Agreement.
(j) During the Prospectus Delivery Period, the Company shall file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the Exchange Act in the manner and within the time periods required by the
Exchange Act.
14
(k) During a period ending three years from the date hereof, the Company
will furnish to each of the Underwriters upon their request: (i) copies of all
reports mailed to shareholders of the Company; and (ii) copies of all reports
and financial statements furnished to or filed with the Commission, the NYSE,
any other national securities exchange on which the capital stock of the Company
is listed, in each case unless they are otherwise available on the Commission's
▇▇▇▇▇ system.
(l) For a period of 90 days after the date of the Prospectus (the "Lock-Up
Period"), the Company will not, without the prior written consent of SunTrust
(which consent may be withheld in its sole discretion), directly or indirectly,
(i) offer, pledge, sell, contract to sell (including without limitation any
short sale), sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of, establish
or increase a "put equivalent position" or liquidate or decrease a "call
equivalent position" (in each case as defined in Section 16 of the Exchange Act
and the rules and regulations thereunder) or otherwise dispose of or transfer
any shares of Common Stock, the Company's Class A common stock, par value $0.50
per share (the "Class A Stock"), or any securities convertible into or
exchangeable or exercisable for Common Stock or Class A Stock, (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or
in part, directly or indirectly, the economic consequences of ownership of
Common Stock or Class A Stock, whether any such swap or transaction is to be
settled by delivery of Common Stock, Class A Stock or other securities, in cash
or otherwise or (iii) publicly announce an intention to do or file a
registration statement under the Securities Act with respect to any of the
foregoing, except (x) grants of employee stock options, restricted stock or
stock appreciation rights with respect to the Company's Common Stock pursuant to
the terms of a plan in effect on the date hereof and (y) issuances of the
Company's Common Stock pursuant to the exercise of any employee stock options
granted pursuant to the terms of a plan in effect on the date hereof;
notwithstanding the foregoing, if (A) during the last 17 days of the 90-day
lock-up period, the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (B) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
or becomes aware that material news or a material event will occur during the
16-day period beginning on the last day of the 90-day lock-up period, until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event, as applicable,
the Lock-Up Period will be extended unless SunTrust waives, in writing, such
extension.
(m) For a period of three years from the date hereof, the Company will
maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar (which may be the same entity as the
transfer agent) for its Common Stock.
(n) If at any time during the 30-day period after the date of this
Agreement, any publication or event relating to or affecting the Company shall
occur as a result of which in your reasonable opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such publication or event necessitates a supplement or amendment of the
Prospectus), the Company agrees to forthwith consult and cooperate with the
Underwriters concerning the Company's response to or comment on such publication
or event, subject in all cases to the Company's obligations under the Securities
Act and the Exchange Act, and the rules promulgated thereunder, and the rules of
the NYSE.
15
Section 5. Covenants of the Selling Shareholder. The Selling Shareholder
covenants and agrees with each Underwriter as follows:
(a) The Selling Shareholder will pay all taxes, if any, on the transfer
and sale of the Shares to be sold by the Selling Shareholder.
(b) The Selling Shareholder will do and perform all things to be done and
performed by the Selling Shareholder hereunder prior to the Closing Time and, if
applicable, the Date of Delivery, and to satisfy all conditions precedent to the
delivery of the Shares to be sold by the Selling Shareholder.
(c) The Selling Shareholder will not take, directly or indirectly, during
the applicable "restricted period" as defined in Regulation M of the Commission,
any action which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares to be sold by or that
violates Regulation M of the Commission in any respect.
(d) The Shareholder acknowledges and agrees that the shares to be sold by
the Selling Shareholder hereunder are subject to the interests of the
Underwriters, and that the obligations of the Selling Shareholder hereunder
shall not be terminated by any act of the Selling Shareholder, by operation of
law, by the death or incapacity of the Selling Shareholder, or the occurrence of
any other event.
(e) The Selling Shareholder will deliver to the Underwriters prior to the
Closing Time a properly completed and executed U.S. Treasury Department Form
W-9.
(f) The Selling Shareholder will obtain the consent of SunTrust on behalf
of the Underwriters before making any offer of Shares that would constitute a
Selling Shareholder Free Writing Prospectus pursuant to Rule 433(d) of the
Securities Act Regulations. The Selling Shareholder will comply with Rule 433 of
the Securities Act Regulations with regard to each Selling Shareholder Free
Writing Prospectus.
Section 6. Underwriter Covenants. Each of the Underwriters represents that
it has not made, and agrees that, without the prior written consent of the
Company, it will not make any offer relating to the Shares that would constitute
a Free Writing Prospectus; the Company and each of the Underwriters each
represents and agrees that any such Free Writing Prospectus the use of which has
been consented to by the Company and the Underwriters is listed on Schedule II
hereto.
Section 7. Payment of Expenses.
(a) General. The Company will pay or cause to be paid and bear all costs,
fees and expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement, as originally filed and as amended, each Preliminary
Prospectuses, any Issuer Free Writing Prospectus and the Prospectus and any
amendments or supplements thereto, and the cost of furnishing copies thereof to
the Underwriters; provided, however, that with respect to filing fees paid to
the Commission in connection with the registration of Shares under the
Securities Act, the Company shall pay only the portion of such fees attributable
to the Shares offered
16
by the Company, (ii) the preparation, printing and distribution of this
Agreement and any instruments relating to any of the foregoing, (iii) the
issuance and delivery of the Shares to the Underwriters, including any transfer
taxes payable upon the sale of the Shares to the Underwriters (other than
transfer taxes on resales by the Underwriters), (iv) the fees and disbursements
of the Company's counsel and accountants, (v) the qualification of the Shares
under the applicable state securities or Blue Sky laws in accordance with
Section 4(h) hereof, including filing fees and reasonable fees and disbursements
of counsel for the Underwriters in connection therewith, provided, however, that
with respect to any filing fees paid to any state regulatory authority, the
Company shall pay only the portion of such fees attributable to Shares offered
by the Company, (vi) the expenses and the portion of any filing fees incurred in
connection with listing of the Shares on the NYSE that is attributable to the
Shares offered by the Company, (vii) the transfer agent's and registrar's fees
and all miscellaneous expenses referred to in Part II of the Registration
Statement, (viii) costs related to travel and lodging incurred by the Company
and its representatives relating to meetings with and presentations to
prospective purchasers of the Shares, and (ix) all other costs and expenses
incident to the performance of the Company's obligations hereunder (including
costs incurred in closing the purchase of the Option Shares, if any) that are
not otherwise specifically provided for in this section. Except as provided in
Section 7 and Section 9 hereof, the Underwriters shall pay their own expenses,
including the fees and disbursements of their counsel.
(b) Selling Shareholder. The Selling Shareholder shall pay his pro rata
portion of any filing fees attributable to the Shares offered by him (i) paid to
the Commission in connection with the registration of the Shares under the
Securities Act, (ii) paid to any state or regulatory authority in connection
with the qualification of the Shares for offering and sale under state
securities or Blue Sky laws as provided in Section 4(h) hereof, (iii) paid to
the NYSE in connection with listing of the Shares and (iv) any transfer taxes
imposed on the sale of the Shares to the Underwriters by the Selling Shareholder
(other than transfer taxes on resales by the Underwriters).
(c) Termination. If the Underwriters terminate this Agreement in
accordance with the provisions of Section 8 or Section 11(a)(i)(A) hereof, the
Company shall reimburse the Underwriters for all of their reasonable
out-of-pocket expenses, including the reasonable fees and expenses of counsel
for the Underwriters (but excluding wages and salaries of any in-house counsel
employed by any Underwriter).
Section 8. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Shares that they have severally agreed
to purchase pursuant to this Agreement (whether Firm Shares at the Closing Time
or, upon exercise of the option granted in Section 3, Option Shares on the Date
of Delivery) are subject to the following conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a); all filings required by Rule 433 of the Securities
Act Regulations shall have been made, and no such filings shall have been made
without the consent of SunTrust. No stop order suspending the effectiveness of
the Registration Statement or preventing or suspending the use of the Prospectus
or any Issuer Free Writing Prospectus shall have been issued under the
Securities Act and no proceedings for that purpose shall have been instituted or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel for the Underwriters; and the Commission shall not have
notified the Company of any objection to the use of the form of the Registration
Statement.
17
(b) The Underwriters shall have received the favorable opinion, dated such
Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the Company and the
Selling Shareholder, together with signed or reproduced copies of such opinions
for each of the other Underwriters, substantially in the form of Exhibit B.
(c) The Underwriters shall have received a favorable opinion from ▇▇▇▇▇▇ &
Bird LLP, counsel for the Underwriters, dated such Closing Date, with respect to
the Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(d) The Company and the Selling Shareholder shall have complied with all
agreements and satisfied all conditions contained herein in all respects on
their respective parts to be performed or satisfied at or prior to such Closing
Date; and the representations and warranties of the Company set forth in Section
1 and of the Selling Shareholder in Section 2 shall be true and correct in all
respects as though expressly made at and as of such Closing Date and the
Underwriters shall have received certificates in form and substance satisfactory
to counsel for the Underwriters, dated as of such Closing Date, executed by the
Chief Executive Officer and the Chief Financial Officer of the Company (or such
other officers as are acceptable to the Underwriters) and the Selling
Shareholder to such effect and with respect to the following additional matters:
(i) no stop order suspending the effectiveness of the Registration
Statement or preventing or suspending the use of the Disclosure Package or
the Prospectus has been issued, and no proceedings for that purpose have
been instituted or are pending or, to the knowledge of the Company,
threatened by the Commission under the Securities Act;
(ii) since the date of the most recent financial statements included
in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto), there has been no Material Adverse Effect.
(e) The Underwriters shall have received from Ernst & Young LLP a letter
addressed to the Underwriters and dated the date hereof and such Closing Date,
in form and substance satisfactory to the Underwriters, confirming that such
firm is an independent registered public accounting firm within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, and containing such other statements and information of the
type ordinarily included in accountants "comfort letters" to underwriters with
respect to the financial statements and financial and other information
contained in the Registration Statement.
(f) The Company shall have furnished to the Underwriters copies of
agreements between the Company and the directors and executive officers of the
Company in the form attached hereto as Exhibit A pursuant to which such persons
agree generally not to transfer any equity securities of the Company
beneficially owned by them or any securities convertible into, or exchangeable
for, equity securities of the Company, on or before the 90th day after the date
of this Agreement without your prior written consent.
18
If any of the conditions specified in this Section 8 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by the Underwriters on notice to the Company and the Selling
Shareholder in writing of such termination at any time at or prior to such
Closing Date, and such termination shall be without liability of any party to
any other party, except as set forth in Section 11.
Section 9. Indemnification and Contribution.
(a) Subject to the limitations in this paragraph below, the Company will
indemnify and hold harmless each Underwriter, its partners, directors, officers,
employees and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the successors and assigns of all such persons, from and against any losses,
claims, damages or liabilities, joint or several, to which any such Underwriter
or any such other person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus, any Issuer Free Writing Prospectus, 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, in light of the
circumstances in which they were made, not misleading, and will reimburse each
Underwriter and each such partner, director, officer, employee and controlling
person for any legal or other expenses reasonably incurred by such Underwriter,
partner, director, officer, employee or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, such Preliminary Prospectus, such Issuer Free Writing Prospectus, or
the Prospectus or such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information specified
in Section 9(f) below. This indemnity agreement shall be in addition to any
liabilities that the Company may otherwise have.
(b) Subject to Section 9(g) of this Agreement, the Selling Shareholder
will indemnify and hold harmless each Underwriter, its partners, directors,
officers, employees and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the successors and assigns of all such persons, from and against any
losses, claims, damages or liabilities, joint or several, to which any such
Underwriter or any such other person may become subject under the Securities Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, any
Selling Shareholder Free Writing Prospectus, 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, in light of the circumstances in which
they were made, not misleading, and will reimburse each Underwriter and each
such partner, director, officer, employee and controlling person for any legal
or other expenses reasonably incurred by such Underwriter, partner, director,
officer, employee or
19
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the Selling Shareholder shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, such
Preliminary Prospectus, such Issuer Free Writing Prospectus, such Selling
Shareholder Free Writing Prospectus or the Prospectus or such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter expressly for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information specified in Section 9(f) below. This
indemnity agreement shall be in addition to any liabilities that the Selling
Shareholder may otherwise have.
(c) Each Underwriter, severally but not jointly, will indemnify and hold
harmless the Company, its directors, its officers who signed the Registration
Statement, the Selling Shareholder and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and the successors and assigns of all such persons, from and
against any losses, claims, damages or liabilities, joint or several, to which
the Company or any such person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
any Preliminary Prospectus, any Issuer Free Writing Prospectus, any Selling
Shareholder Free Writing Prospectus, the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or the
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 in
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 the Registration Statement, such Preliminary
Prospectus, such Issuer Free Writing Prospectus, such Selling Shareholder Free
Writing Prospectus or the Prospectus, or such amendment or supplement, in
reliance upon and in conformity with information furnished to the Company and
the Selling Shareholder by such Underwriter expressly for use therein, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the information specified in Section 9(f) below, and
will reimburse the Company or any such director, officer, the Selling
Shareholder and any controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer, the Selling
Shareholder and any controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. This indemnity agreement shall be in addition to
any liabilities that the Underwriters may otherwise have.
(d) Within ten days after receipt by an indemnified party under Section
9(a), 9(b) or 9(c) above of notice of 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 or any delay to notify the
indemnifying party will not relieve the indemnifying party from any liability
that it may have to any indemnified party otherwise than under this Section 9.
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, and after notice from the indemnifying party to such
indemnified party of its election
20
so to assume the defense thereof the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof. The indemnified
party shall have the right to employ its own counsel in any such action, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party has been
authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by counsel that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense of
such action (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party) or (iii)
the indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in any of which events the fees and expenses of one such
counsel shall be borne by the indemnifying party. The indemnifying party shall
not be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(e) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 9 is for
any reason unavailable or insufficient, each indemnifying party shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholder on the one hand, and the Underwriters on the other hand, from the
offering and sale of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative and several fault of the Company and the Selling Shareholder
on the one hand, and the Underwriters on the other hand, in connection with the
statements or omissions that resulted in such losses, liabilities, claims,
damages and expenses as well as any other relevant equitable considerations. The
relative and several benefits received by the Company and the Selling
Shareholder on the one hand, and the Underwriters on the other hand, shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discount received by the Underwriters, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault of the Company
and the Selling Shareholder on the one hand, and the Underwriters on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Shareholder on the one hand, or by the Underwriters on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Selling Shareholder and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 was determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by a party as a result of the losses, claims, damages
or liabilities referred to above shall be deemed to include any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection 9(e), 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. No person
21
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of subsection
9(e), the partners, directors, officers and employees and each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company.
(f) For purposes of this Section 9, the Underwriters severally confirm,
and the Company and the Selling Shareholder acknowledge, that the first sentence
of the second paragraph, the fifth paragraph and the eleventh paragraph under
"Underwriting" in the Preliminary Prospectus and the Prospectus constitutes the
only information furnished by the Underwriters to the Company for inclusion in
any Preliminary Prospectus, the Prospectus or the Registration Statement.
(g) The liability of the Selling Shareholder under this Section 9 shall be
limited to an amount equal to the public offering price, less the underwriting
discount, of the Shares sold by the Selling Shareholder to the Underwriters.
Section 10. Representations and Agreements to Survive Delivery. The
representations, warranties, indemnities, agreements and other statements of the
Company, the Selling Shareholder and the Underwriters, set forth in or made
pursuant to this Agreement will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company and the
Selling Shareholder, any Underwriter or any representative, officer, director or
any controlling person with respect to an Underwriter or the Company, and will
survive delivery of and payment for the Shares or termination of this Agreement.
Section 11. Termination.
(a) This Agreement shall be subject to termination by you, if prior to the
Closing Time or the Date of Delivery (if different from the Closing Date and
then only as to the Option Shares), as the case may be, (i) (A) trading in
securities generally on the NYSE or the Nasdaq Stock Market, or (B) trading in
the Company's Common Stock on any exchange or in the over-the-counter market,
shall have been suspended or the settlement of such trading generally shall have
been materially disrupted or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by federal, New York or Georgia authorities,
(iii) the United States shall have become engaged in hostilities, there shall
have been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions, including without
limitation as a result of terrorist activities or any other crisis or calamity
after the date hereof, or the effect of international conditions on the
financial markets in the United States shall be such as to make it, in your
judgment, impracticable or inadvisable to proceed with the completion of the
public offering or the sale or payment for the Shares. Notice of such
cancellation shall be promptly given to the Company and its counsel by
telegraph, telecopy or telephone and shall be subsequently confirmed by letter.
22
(b) The Underwriters may terminate this Agreement by notice to the Company
and the Selling Shareholder at any time at or prior to the Closing Date in
accordance with the last paragraph of Section 8 of this Agreement.
(c) If this Agreement is terminated pursuant to the provisions of any
subsection of this Section 11, such termination shall be without liability of
any party to any other party, except that, notwithstanding any such termination,
(i) the provisions of Section 7 and Section 9 shall remain in effect, and (ii)
if any Shares have been purchased hereunder, the representations and warranties
in Section 1 and Section 2 and all obligations under Section 4 and Section 5
shall also remain in effect.
Section 12. Default by One or More of the Underwriters.
(a) If any Underwriter shall default in its obligation to purchase the
Firm Shares that it has agreed to purchase hereunder, you may in your discretion
arrange for you, another party, or other parties to purchase such Firm Shares on
the terms contained herein. If within 36 hours after such default by any
Underwriter you do not arrange for the purchase of such Firm Shares, then the
Company or the Selling Shareholder shall be entitled to a further period of 36
hours within which to procure another party or other parties satisfactory to you
to purchase such Firm Shares on such terms. In the event that, within the
respective prescribed periods, you notify the Company and the Selling
Shareholder that you have so arranged for the purchase of such Firm Shares, or
the Company or the Selling Shareholder notifies you that it has so arranged for
the purchase of such Firm Shares, you or the Company or the Selling Shareholder
shall have the right to postpone the Closing Time for a period of not more than
seven days in order to effect whatever changes may thereby be made necessary in
the Registration Statement, the Disclosure Package, or the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement, the Disclosure Package, or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any persons substituted
under this Section 12 with like effect as if such person had originally been a
party to this Agreement with respect to such Firm Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Firm Shares of a defaulting Underwriter or Underwriters made by you or the
Company or the Selling Shareholder as provided in subsection (a) above, the
aggregate number of Firm Shares which remains unpurchased does not exceed 10% of
the total number of Firm Shares then the Company shall have the right to require
each non-defaulting Underwriter to purchase the Firm Shares which such
Underwriter agreed to purchase hereunder and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Firm Shares which such Underwriter agreed to purchase hereunder) of the Firm
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.
(c) If, after giving effect to any arrangements for the purchase of the
Firm Shares of a defaulting Underwriter or Underwriters made by you or the
Company or the Selling Shareholder as provided in subsection (a) above, the
number of Firm Shares which remains unpurchased exceeds 10%, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Shares of a defaulting Underwriter
or Underwriters, then this Agreement shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Shareholder except for the expenses to be borne by the Company, the
Selling
23
Shareholder and the Underwriters as provided in Section 7 hereof and the
indemnity and contribution agreements in Section 9 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
Section 13. Default by the Company or the Selling Shareholder. If the
Company or the Selling Shareholder shall fail at any Closing Date to sell and
deliver the respective aggregate number of Firm Shares that they are obligated
to sell, then this Agreement shall terminate without any liability on the part
of any non-defaulting party, except to the extent provided in Section 7 and
except that the provisions of Section 9 shall remain in effect. No action taken
pursuant to this Section shall relieve the Company or the Selling Shareholder
from liability, if any, in its default.
Section 14. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
mailed, delivered or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed c/o SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, with a
copy to ▇▇▇▇▇▇ & Bird LLP, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., and notices to the Company and the Selling
Shareholder shall be directed to ▇▇▇▇▇ Rents, Inc., ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇., ▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇., with a copy to
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: W. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. Each notice hereunder shall be effective
upon receipt by the party to which it is addressed.
Section 15. Parties. This Agreement is made solely for the benefit of the
Underwriters, the Selling Shareholder and the Company and, to the extent so
provided, the partners, directors, officers and employees of the Underwriters
and any person controlling any of the Underwriters, the directors of the
Company, the officers of the Company who have signed the Registration Statement
and any person controlling the Company, and their respective executors,
administrators, successors and assigns and, subject to the provisions of Section
12, no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, as
such purchaser, from any of the several Underwriters of the Shares.
Section 16. Governing Law and Time. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Georgia without
reference to choice of law principles thereunder. Specified time of the day
refers to United States Eastern Time, unless otherwise specified.
Section 17. Counterparts. This Agreement may be executed in any number of
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company, the Selling Shareholder and
the Underwriters in accordance with its terms. It is understood that your
acceptance of this Agreement on behalf of the Underwriters is pursuant to the
authority set forth in a form of Agreement Among Underwriters, the form of which
will be submitted to the Company and Selling Shareholder for examination upon
request, but without warranty on the part of SunTrust as to the authority of the
signers thereof.
Very truly yours,
▇▇▇▇▇ RENTS, INC.
By: ___________________________________________________
Name: _________________________________________________
Title: ________________________________________________
_______________________________________________________
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇., in his individual capacity
Confirmed and accepted in Atlanta, Georgia, as of
the date first above written, by SunTrust Capital
Markets, Inc. on behalf of the Underwriters named
in Schedule I hereto.
By: ___________________________________________
Name: _________________________________________
Title: ________________________________________
25
SCHEDULE I
NAME NUMBER OF SHARES
------------------------------------------- ----------------
SunTrust Capital Markets, Inc. ............ 1,300,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. ............. 1,000,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated... 800,000
Wachovia Capital Markets, LLC.............. 500,000
BB&T Capital Markets, a division of
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇▇, Inc. ....... 400,000
----------------
Total ................................ 4,000,000
================
Schedule I
SCHEDULE II
FREE WRITING PROSPECTUSES
Final Term Sheet filed with the Commission on May 18, 2006
Schedule II
SCHEDULE III
PRICING INFORMATION
Issuer ▇▇▇▇▇ Rents, Inc.
Common stock offered:
By the issuer 3,000,000 shares
By the selling shareholder 1,000,000 shares
Overallotment option:
From the issuer 450,000 shares
From the selling shareholder 150,000 shares
Public offering price $25.75 per share
Underwriting discount
Per share
---------
Gross spread $1.2875
Selling concession .77
Reallowance .10
Settlement and delivery date: May 24, 2006
Use of proceeds Repayment of approximately
$73.0 million of the issuer's
outstanding bank debt.
Underwriters SunTrust Capital Markets, Inc. 1,300,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. 1,000,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated 800,000
Wachovia Capital Markets, LLC 500,000
BB&T Capital Markets, A division of ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇▇▇▇, Inc. 400,000
---------
Total 4,000,000
=========
Schedule III
SCHEDULE 2(j)
SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
----------------------------- ------------------------------
▇▇▇▇▇ Investment Company Delaware
▇▇▇▇▇ Rents, Inc. Puerto Rico Puerto Rico
Schedule 2(j)
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
________ __, 2006
SunTrust Capital Markets, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company, Incorporated
Wachovia Capital Markets, LLC
BB&T Capital Markets, a division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc.
c/o SunTrust Capital Markets, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Proposed Public Offering by ▇▇▇▇▇ Rents, Inc.
Dear Sirs:
The undersigned, a shareholder, officer and/or director of ▇▇▇▇▇ Rents, Inc., a
Georgia corporation ("▇▇▇▇▇ Rents"), understands that SunTrust Capital Markets,
Inc. ("SunTrust"), ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Company,
Incorporated, Wachovia Capital Markets, LLC and BB&T Capital Markets, a division
of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc. (collectively, the "Underwriters") propose to
enter into an Underwriting Agreement (the "Underwriting Agreement") with ▇▇▇▇▇
Rents and R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇. providing for the public offering of shares
of ▇▇▇▇▇ Rents common stock, par value $0.50 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a shareholder, officer and/or director of ▇▇▇▇▇ Rents for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each Underwriter that, during a period
of 90 days from the date of the Prospectus (as defined in the Underwriting
Agreement), the undersigned will not, without the prior written consent of
SunTrust (which consent may be withheld in its sole discretion), directly or
indirectly, (i) offer, pledge, sell, contract to sell (including without
limitation any short sale), sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant for the sale
of, establish or increase a "put equivalent position" or liquidate or decrease a
"call equivalent position" (in each case as defined in Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder) or otherwise dispose of or transfer any shares of ▇▇▇▇▇ Rents'
Common Stock, Class A common stock, par value $0.50 per share (the "Class A
Stock"), or any securities convertible into or exchangeable or exercisable for
Common Stock or Class A Stock, whether now owned or hereafter acquired by the
undersigned or with respect to which the undersigned has or hereafter acquires
the power of disposition, (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequences of ownership of Common Stock or Class A Stock, whether any
such swap or
Exhibit A
transaction is to be settled by delivery of Common Stock, Class A Stock or other
securities, in cash or otherwise or (iii) publicly announce an intention to do
any of the foregoing.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 90-day lock-up period, ▇▇▇▇▇ Rents
issues an earnings release or material news or a material event relating
to ▇▇▇▇▇ Rents occurs; or
(2) prior to the expiration of the 90-day lock-up period, ▇▇▇▇▇ Rents
announces that it will release earnings results or becomes aware that
material news or a material event will occur during the 16-day period
beginning on the last day of the 90-day lock-up period,
the restrictions imposed by this letter shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event, as applicable,
unless SunTrust waives, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any
extension of the 90-day lock-up period pursuant to the previous paragraph will
be delivered by SunTrust to ▇▇▇▇▇ Rents (in accordance with the terms of the
Underwriting Agreement) and that any such notice properly delivered will be
deemed to have been given to, and received by, the undersigned. The undersigned
further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the terms of this lock-up agreement during the period
from the date of this lock-up agreement to and including the 34th day following
the expiration of the initial 90-day lock-up period, it will give notice thereof
to ▇▇▇▇▇ Rents and will not consummate such transaction or take any such action
unless it has received written confirmation from ▇▇▇▇▇ Rents that the 90-day
lock-up period (as may have been extended pursuant to the previous paragraph)
has expired.
In furtherance of the foregoing, ▇▇▇▇▇ Rents and its transfer agent and
registrar are hereby authorized to decline to make any transfer of Common Stock
or Class A Stock, if such transfer would constitute a violation or breach of
this letter.
Very truly yours,
Signature:____________________________
Print Name: __________________________
Exhibit A
Exhibit B
FORM OF OPINION OF ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Exhibit B