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EXHIBIT 1
CAROLINA FIRST BANCSHARES, INC
FORM OF
SALES AGENCY AGREEMENT
October ____, 1997
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Ladies and Gentlemen:
This letter sets forth and confirms the terms and conditions of the engagement
(the "Agreement") of _______________ ("Selling Agent") by Carolina First
Bancshares, Inc. (the "Company") as non-exclusive selling agent of the Company
with respect to the Company's proposed public offering (the "Offering") of its
common stock (the "Common Stock"). The Offering will be made by means of a
prospectus (the "Prospectus"), which will be provided to Selling Agent.
1. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with Selling Agent as
follows:
(a) The Prospectus does not and will not contain any untrue statements of
material fact or omit to state any material facts required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) The Company is a corporation validly existing and in good standing under
the laws of the state of its incorporation has full corporate and other power
and authority under such laws to own its properties and conduct its business as
described in the Prospectus; and is duly qualified to do business as a foreign
corporation in each other jurisdiction in which it owns or leases properties or
conducts its business so as to require qualification and is in good standing in
each such jurisdiction, except where failure to be so qualified would not have a
material adverse effect on the condition financial or otherwise, results of
operations, affairs or business prospects of the Company.
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(c) The shares of common stock to be issued sold by the Company hereunder (the
"Shares"), when issued and delivered against payment therefor as provided
herein, will be duly ant validly authorized and issued and fully paid and will
conform to the description thereof contained in the Prospectus.
(d) Except as disclosed in the Prospectus or information incorporated therein
by reference, there are no (i) outstanding securities or obligations of the
Company convertible into or exchangeable for any capital stock of the Company,
(ii) warrants, rights or options to subscribe for or purchase from the Company
any such capital stock or any such convertible or exchangeable securities or
obligations or (iii) obligations of the Company to issue any such convertible
or exchangeable securities or obligations, or any such warrants, rights or
options
(e) The Company has the fully legal right, power and authority to enter into
and perform this Agreement and to sell and deliver the shares as provided
herein, and this Agreement has been duly authorized by its Board of Directors
and duly executed and delivered on behalf of the Company.
(f) Other than filings with, and any necessary registrations, qualifications
or exemptions from the Securities and Exchange Commission and applicable state
securities and "blue sky" authorities, no consent, approval, authorization or
order, registration or qualification of or with any court or governmental agency
or body is required for the issuance and sale of the Shares or for the
consummation of the other transactions contemplated by this Agreement.
(g) Except as provided in Section 2(a), there are no contracts, agreements or
understandings between the Company and any person which would give rise to a
valid claim against the Company for a brokerage commission, finder's fee or
other like payment in connection with the offering of the Shares, other than
compensation due and payable to Selling Agent, _______________ and any other
selling agents for the Shares named by the Company.
(h) No action, suit or proceeding at law or in equity is pending or, to the
Company's knowledge, threatened to which the Company is a party, and no
proceedings are pending or, to the Company's knowledge, threatened against or
affecting the Company before or by any governmental official, commission, board
or other administrative agency, (other than in connection with required
regulatory approvals) wherein an unfavorable decision, ruling or finding could
have a material adverse effect on the consummation of this Agreement or the
condition, financial or otherwise, results of operations, affairs or business
prospects of the Company.
(i) The Company has such: permits, franchises, and governmental and regulatory
authorizations ("permits") as are necessary to own its properties and conduct
its business in the manner described in the Prospectus, subject to such
qualifications as
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may be set forth in the Prospectus, and except where the failure to have such
permits would not have a material adverse effect on the consummation of this
Agreement or the condition, financial or otherwise, results of operations,
affairs or business prospects of the Company.
(j) The Company is not an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940.
(k) The Company agrees as follows:
(i) The Company will notify Selling Agent immediately, and confirm such
notice in writing, of the receipt of any comments from any state securities
commission or regulatory authority that relate to the Prospectus or any
amendment thereto or requests by any state securities commission or regulatory
authority for amendments to the Prospectus or amendments or supplements to the
Prospectus or for additional information;
(ii) The Company will use the net proceeds from the sale of the Shares
received by it in the manner specified in the Prospectus under the caption
"Use of Proceeds."
(iii) For three years from the date of this Agreement, the Company will
furnish to Selling Agent copies of all reports and communications
(financial or otherwise) furnished by the Company to its stockholders, copies
of all reports or financial statements filed with the regulatory agencies as
soon as such are available, and such other publicly available documents,
reports and information concerning the business ant financial condition of the
Company as Selling Agent may reasonably request.
2. Services to be Provided by Selling Agent.
In connection with this Agreement, the scope of Selling Agent's services shall
include, but not be limited to, the following:
(a) Pursuant to this Agreement, Selling Agent will serve as a selling agent
for the Company on a non-exclusive basis end will offer the Shares for sale, on
a reasonable efforts basis. Selling Agent acknowledges that the Company may
contract with other selling agents for the sale of the Shares and that no such
contractual arrangements shall violate or conflict with the terms of this
Agreement.
(b) With respect to its efforts as a selling agent, Selling Agent will employ
all reasonable efforts to achieve a broad, retail distribution of the Shares,
including, without limitation, the following (1) limiting the maximum number of
Shares to be purchased by an individual in the Offering to 1,000 Shares; (2)
selling at least 33% of the Shares to
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persons not presently Company shareholders; and (3) selling a minimum of 25,000
Shares to Cabarrus County residents.
(c) Selling Agent will perform its duties pursuant to this Agreement in
compliance with all applicable federal ant state securities laws, and will offer
and sell the Shares only by means of the Prospectus and only in such
Jurisdictions specified by the Company and in which such offers and sales may be
made lawfully.
In exchange for the services of Selling Agent pursuant to this Agreement, the
Company agrees to pay Selling Agent a selling commission of $.80 for each Share
sold by Selling Agent as selling agent. The selling commission shall be payable
at such time as the subscription Shares sold by Selling Agent as selling agent
are accepted by and payment in full is received therefor by the Company. In the
event the offering is terminated before, Selling Agent will be reimbursed only
for its actual accountable out-of-pocket expenses. The Company shall make and
pay all NASD and SEC and blue sky filings and fees.
3. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless Selling Agent, and each
person, if any, who controls Selling Agent within the meaning of Section 15 of
the Securities Act of 1933 as amended (the "1933 Act"), against any and all
losses, claims, damages, liabilities and expenses (including reasonable costs of
investigation and counsel's fees) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus, or in any amendment or supplement thereto, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arising out of any breach of this Agreement except insofar as such
losses, claims, damages, liabilities and expenses arise out of or are based upon
any untrue statement or omission or alleged untrue statement or omission made by
any means by Selling Agent or its agents, directors or employees in connection
with the offer and sale of the Common Stock. The foregoing indemnity shall not,
with respect to untrue statements or omissions in the Prospectus, inure to the
benefit of Selling Agent, or any affiliate or person who controls Selling Agent,
from whom the person asserting any such loss, liability, claim, damage or
expense purchased any of the Shares that are the subject hereof, if such person
was not sent or given a copy of the Prospectus (as amended or supplemented).
(b) If any action or claim shall be brought or asserted against Selling Agent
or any person controlling Selling Agent in respect of which indemnity may be
sought from the Company, Selling Agent or such controlling person shall promptly
notify the Company in writing, enclosing copies of all papers served on or
delivered to such party, and the Company shall assume the defense thereof,
including the employment of one counsel for all of Selling Agent and the payment
of all expenses. The failure to notify an indemnifying party shall not relieve
the indemnified party from any liability hereunder to the extent it is not
materially prejudiced as a result of such failure. Selling Agent or any such
controlling
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person shall have to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the sole expense of Selling Agent or such controlling person unless
(i) the employment thereof has been specifically authorized in advance by the
Company in writing, (ii) the Company failed to assume the defense and employ
counsel as described above or (iii) the named parties to any such action
(including any impleaded parties) include both Selling Agent or such controlling
person and the Company, and Selling Agent or such controlling person shall have
been advised by such counsel that there may be one or more legal defenses
available to it that are different from or in addition to those available to the
Company (in which case, if Selling Agent or such controlling person notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action on behalf of Selling Agent or such controlling person). No indemnified
party shall settle, compromise or consent to the entry of any judgment with
respect to any litigation, any investigation or proceeding by any governmental
agency or body, commenced or threatened, or claim whatsoever in respect of which
indemnification or contribution can be sought under this Section 3 (whether or
not the indemnified parties are actual or potential parties), unless the
indemnified party gives prior written notification to the indemnifying party and
such settlement, compromise or consent does not include any statement or
admission of fault, culpability or failure to act on behalf of, or with respect
to, any indemnified party.
(c) Selling Agent agrees individually, and not jointly with any other selling
agent for the Shares, to indemnify and hold harmless the Company and its
respective directors and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the Securities
Exchange Act of 1934, as amended against, any and all loss, liability, claim,
damage and expenses described in the indemnity contained in subsection (a) of
this Section 3 but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions made in the Prospectus (as amended or
supplemented) based upon information furnished to the Company by Selling Agent.
(d) If the indemnification provided for in this Section 3 is unavailable to an
indemnified party under paragraphs (a), (b) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages,liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and Selling Agent on the other from the Offering 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 fault of the Company on
the one hand and of Selling Agent on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and Selling Agent on the other shall be deemed to be in the same proportion as
the total net
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proceeds received by the Company the Shares sold by Selling Agent in the
offering (before deducting expenses), and the total selling commission received
by Selling Agent. The relative fault of the Company on the one hand and of
Selling Agent on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Company, or by Selling Agent, and the parties relative intent, knowledge, access
to information ant opportunity to correct or prevent such statement or omission.
The Company on the one hand and Selling Agent on the other agree that it would
not be just and equitable if contribution to be made pursuant to this Section 3
were determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities and expenses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending any
such action or claim Notwithstanding the provisions of this Section 3, Selling
Agent shall not be required to contribute any amount in excess of the amount by
which the total price at which the Shares sold by it exceeds the amount of any
damages that Selling Agent has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 0000 Xxx) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
4. Representations Warranties and Agreements to Survive Delivery.
The representations warranties, indemnities, agreements and other statements
of the Company set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of Selling Agent or the Company or controlling person of the
Company, and shall survive delivery of and payment for the Shares.
5. Governing Law; Assignments.
This Agreement shall be governed by the laws of the State of North Carolina.
Neither party may assign this Agreement without the prior written consent of the
other party
6. Counterparts.
This Agreement may be executed in one of more counterparts, and when a
counterpart has been executed by each party hereto all such counterparts taken
together shall constitute one and the same Agreement. Signatures sent by
facsimile shall have the same effect as if manually signed copies had been
delivered, and shall be binding upon the parties.
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7. No Personal Liability.
In no event shall any officer or director of the Company have any personal
liability to Selling Agent or to any other person under this Agreement
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
shall become a binding agreement between the Company and Selling Agent.
Very truly yours,
CAROLINA FIRST BANCSHARES,
INC.
By:
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Xxxxx X. Xxxx, III
President
CONFIRMED AND ACCEPTED,
SELLING AGENT
By:
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Name:
Title:
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