Exhibit 1.1
FUTURUS FINANCIAL SERVICES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
________________, 2000
WACHOVIA SECURITIES, INC.
As representative of the several
Underwriters named in Schedule I hereto,
c/o Wachovia Securities, Inc.
IJL Financial Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Futurus Financial Services, Inc., a Georgia corporation (the "Company")
and proposed holding company for Futurus Bank, N.A., a national banking
association (the "Bank"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 1,100,000 shares of common stock, no par value
(the "Common Stock"), of the Company (the "Firm Shares"), and, at the election
of the Underwriters, subject to the terms and conditions stated herein, to sell
to the Underwriters up to 165,000 additional shares of Common Stock (the
"Optional Shares") solely to cover overallotments, if any (the Firm Shares and
the Optional Shares that the Underwriters elect to purchase pursuant to
Section 2 hereof are collectively called the "Shares").
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to, and agrees with each of the Underwriters
that:
(a) A registration statement on Form SB-2
(File No. 333-_____) with respect to the Shares, has been filed by the
Company with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Securities Act").
The registration statement and any amendments thereto, including any
post-effective amendments, have been declared effective by the
Commission in such form and copies of each of those items have been
delivered by the Company to you. No other document with respect to the
registration statement or any post effective amendment thereto has been
filed with the Commission; and no stop order suspending the
effectiveness of the registration statement has been issued and no
proceeding for that purpose has been instituted or threatened by the
Commission. Any preliminary prospectus included in the registration
statement or filed with the Commission pursuant
to Rule 424 of the Rules and Regulations of the Commission under the
Securities Act (the "Rules and Regulations"), is herein called a
"Preliminary Prospectus." The various parts of such registration
statement, including the prospectus, Part II, all financial schedules
and exhibits thereto, and including the information contained in the
form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act, and deemed by virtue of Rule 430A
under the Securities Act to be part of the registration statement at
the time it was declared effective, as amended at the time such part
became effective, are herein called collectively the "Registration
Statement," and the final prospectus, in the form first filed pursuant
to Rule 424(b) or as included in the Registration Statement at the time
it is declared effective if no Rule 424(b) filing is required, is
herein called the "Prospectus."
(b) No order preventing or suspending the use of any
Prospectus, including any Preliminary Prospectus, has been issued and
no proceeding for that purpose has been instituted or threatened by the
Commission or the securities authority of any state or other
jurisdiction. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or threatened or, to
the knowledge of the Company, contemplated by the Commission or the
securities authority of any state or other jurisdiction.
(c) Each Preliminary Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto complied when so filed in all material respects with the
requirements applicable to it under the Securities Act and the Rules
and Regulations and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act, and the Rules and
Regulations and will not contain an untrue statement of 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
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through Wachovia Securities, Inc. (the "Representative") expressly for
use therein. When the Registration Statement or any amendment thereto
was declared effective, and at each Time of Delivery (as hereinafter
defined), it (i) contained all statements required to be stated therein
in accordance with, and complied or will comply in all material
respects with the requirements of, the Securities Act and the Rules and
Regulations and (ii) did not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any amendment
or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is
not required to be so filed, when the Registration Statement or the
amendment thereto containing such amendment or supplement to the
Prospectus was or is declared effective) and at each Time of Delivery,
the Prospectus, as amended or supplemented at any such time (i)
contained or
will contain all statements required to be stated therein in accordance
with, and complied or will comply in all material respects with the
requirements of, the Securities Act and the Rules and Regulations and
(ii) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein not misleading.
(d) The descriptions in the Registration Statement and
the Prospectus of statutes, rules, regulations, legal and governmental
proceedings or contracts and other documents that are required to be so
described are accurate and fairly present the information required to
be shown; and there are no statutes, rules, regulations or legal or
governmental proceedings required to be described in the Registration
Statement or the Prospectus that are not described as required and no
contracts or documents of a character that are required to be described
in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and filed
as required.
(e) The Company has been duly incorporated, is validly
existing as a corporation under the laws of the State of Georgia and
has full power and authority to own or lease its properties and conduct
its business as described in the Prospectus. The Bank is a national
banking association in organization under the laws of the United States
of America and, upon the issuance of a charter by the Office of the
Comptroller of the Currency (the "OCC"), will have full power and
authority to own or lease its properties and conduct its business as
described in the Prospectus. The Company has full power and authority
to enter into this Agreement and to perform its obligations hereunder.
Neither the Company nor the Bank is required to be qualified to
transact business as a foreign corporation under the laws of any other
jurisdiction.
(f) The capitalization of the Company is as disclosed
under the caption "Capitalization" in the Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description of the capital stock under the caption "Description of
Capital Stock of Futurus Financial Services" contained in the
Prospectus. None of the issued shares of capital stock of the Company
has been issued or is owned or held in violation of any preemptive or
similar rights, and no person or entity (including any holder of
outstanding shares of capital stock of the Company or its subsidiary)
has any preemptive or other rights to subscribe for any of the Shares.
None of the shares of capital stock of the Bank has been issued.
(g) Upon the issuance of a charter by the OCC and the
payment for the capital stock of the Bank, all of the issued shares of
the Bank will be duly authorized and validly issued, fully paid, and,
except as may be applicable under the National Bank Act, nonassessable
and will be owned beneficially by the Company free and clear of all
liens, security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting trusts, equities or claims of any
nature whatsoever. The Company has made application
(i) to the Board of Governors of the Federal
Reserve System for approval to become a bank holding company
and to acquire all of the shares of the Bank;
(ii) to the OCC, for approval to charter a
national bank; and
(iii) to the Federal Deposit Insurance Corporation
for approval for Federal Deposit Insurance for Bank deposits
(each a "Regulatory Approval" and collectively, the
"Regulatory Approvals").
The Company and the Bank have obtained or have filed for all
other material licenses, consents and approvals, and have satisfied or
have taken all action required at this time to satisfy all material
eligibility and other similar requirements imposed by federal and state
regulatory bodies, administrative agencies or other governmental
bodies, agencies or officials, in each case applicable to the conduct
of the business in which they are engaged or are contemplated to be
engaged as described in the Registration Statement. With respect to the
Regulatory Approvals, as well as all other material licenses, consents
and approvals, and any other similar requirements that the Company or
the Bank does not have at this time, (i) all applications therefor are
complete, accurate, and have been filed with the appropriate regulatory
authorities, (ii) the Company has received preliminary notice from the
OCC that such application for Regulatory Approval will be approved, and
(iii) the Company knows of no reason why all final Regulatory Approvals
will not be received prior to the time required. Other than the Bank,
the Company does not own, directly or indirectly, any capital stock or
other equity securities of any corporation or any ownership interest in
any partnership, joint venture or other association.
(h) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or the Bank
convertible into or exchangeable for any capital stock of the Company
or the Bank, (ii) warrants, rights or options to subscribe for or
purchase from the Company or the Bank any such capital stock or any
such convertible or exchangeable securities or obligations, or
(iii) obligations of the Company or the Bank to issue any shares of
capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options.
(i) Since the date as of which information is given in
the Prospectus, neither the Company nor the Bank has sustained any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as disclosed in or contemplated by the Prospectus.
(j) Since the date as of which information is given in
the Prospectus, (i) neither the Company nor the Bank has incurred any
liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material
to the Company and the Bank, (ii) the Company has not purchased any of
its outstanding capital stock or declared, paid or otherwise made any
dividend or distribution
of any kind on its capital stock, (iii) there has not been any change
in the capital stock, long-term debt or short-term debt of the Company
or the Bank (except with respect to such changes in the balance due
under the Company's line of credit described in the Prospectus), and
(iv) there has not been any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
financial position, general affairs, management, business or prospects
of the Company and the Bank, in each case other than as disclosed in or
contemplated by the Prospectus.
(k) The consolidated financial statements of the Company,
together with related notes and schedules as set forth in the
Registration Statement, conform to the requirements of the Securities
Act and the Rules and Regulations. Such financial statements fairly
present the consolidated financial position of the Company at the
respective dates indicated in accordance with generally accepted
accounting principles applied on a consistent basis for the periods
indicated. The Company and the Bank have no material contingent
obligations which are not disclosed in the Company's financial
statements which are included in the Registration Statement. Xxxxxx
Xxxxxx Xxxxx, LLP whose report is included in the Registration
Statement, are independent certified public accountants as required by
the Securities Act and the Rules and Regulations.
(l) The Shares to be sold by the Company hereunder have
been duly authorized and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully paid and
nonassessable and will conform to the description of the Common Stock
contained in the Prospectus; and all corporate action required to be
taken for the authorization, issuance and sale of the Shares has been
validly taken. The Underwriters will receive good and marketable title
to the Shares to be issued and delivered hereunder, free and clear of
all liens, encumbrances, claims, security interests, restrictions,
shareholders' agreements and voting trusts whatsoever. The certificates
evidencing the Shares will be in due and proper form and will comply
with all applicable legal requirements.
(m) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(n) Neither the Company nor the Bank is, or (with or
without the giving of notice or passage of time or both) would be:
(i) in violation of its Articles of Incorporation, Articles of
Association, Bylaws or other governing instruments; or (ii) in default
under any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or the Bank is a
party or to which any of their respective properties or assets are
subject, except, in the case of clause (ii) above, where such default
would not have a material adverse effect on either the Company or the
Bank.
(o) The issue and sale of the Shares and the performance
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or the Bank is a party or
to which any of their respective properties or assets is subject, nor
will such action conflict with or violate any provision of the Articles
of Incorporation, Articles of Association, Bylaws or other governing
instruments of the Company or the Bank, or any statute, rule or
regulation or any order, judgment or decree of any court or
governmental agency or body having jurisdiction over the Company or the
Bank or any of their respective properties or assets.
(p) The Company and the Bank have good and marketable
title in fee simple to all real property, if any, and good title to all
personal property owned by them, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages
and defects, except such as are disclosed in the Prospectus or such as
do not materially and adversely interfere with the operations of the
Company and the Bank; and any real property and buildings held under
lease by the Company or the Bank are held under valid, subsisting and
enforceable leases, with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere with the operations
of the Company or the Bank.
(q) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body or third party is required for
the issue and sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except (i) the
registration of the Shares under the Securities Act and such as may be
required by the National Association of Securities Dealers, Inc. (the
"NASD") and under state securities or blue sky laws in connection with
the offer, sale and distribution of the Shares by the Underwriters, and
(ii) as required in connection with the Regulatory Approvals.
(r) Other than as disclosed in the Prospectus, there is
no litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or, to the knowledge of any director or executive
officer of the Company, threatened (or any reasonable basis therefor)
in which the Company or the Bank is a party or of which any of their
respective properties or assets are the subject which, if determined
adversely to the Company or the Bank, would individually or in the
aggregate have a material adverse effect on the financial position,
general affairs, management, business or prospects of the Company and
the Bank.
(s) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms subject, as to enforcement, to
applicable bankruptcy, insolvency, reorganization and moratorium laws
and other laws relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles, and except as the
enforceability of rights to indemnity and contribution under this
Agreement may be limited under applicable securities laws or the public
policy underlying such laws.
(t) Neither the Company nor any of its officers,
directors or affiliates has (i) taken, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Shares or (ii) since the filing of the Registration
Statement (A) sold, bid for, purchased or paid anyone any compensation
for soliciting purchases of, the Shares or (B) paid or agreed to pay to
any person any compensation for soliciting another to purchase any
other securities of the Company.
(u) None of the Company, the Bank, nor, to the knowledge
of the Company, any director or executive officer, agent, employee or
other person acting on behalf of the Company or the Bank has (i) used
or authorized the use of, any corporate or other funds for unlawful
payments, or contributions, (ii) made unlawful expenditures relating to
political activity to government officials, or (iii) established or
maintained any unlawful or unrecorded funds in violation of any
federal, state, or local law or regulation, including Section 30A of
the Exchange Act. None of the Company, the Bank, nor, to the knowledge
of the Company, any director or executive officer of the Company or the
Bank has accepted or received any unlawful contributions or payments.
(v) The Company has obtained for the benefit of the
Company and the Underwriters from each of its directors and executive
officers a written agreement (the "Lockup Agreements") that for a
period of 180 days from the date of the Prospectus such director or
officer will not, without your prior written consent, offer, pledge,
sell, contract to sell, grant any option for the sale of, or otherwise
dispose of (or announce any offer, pledge, sale, grant of an option to
purchase or other disposition), directly or indirectly, any shares of
Common Stock or securities convertible into, or exercisable or
exchangeable for, shares of Common Stock.
(w) The Bank, upon the issuance of a charter by the OCC,
will not be prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distributions on the
Bank's capital stock, from repaying to the Company any loans or
advances to the Bank or from transferring the Bank's property or assets
to the Company, except under federal regulations as disclosed in the
Prospectus.
(x) The Company and the Bank have filed all material
foreign, federal, state and local tax returns that are required to be
filed by them and have paid all taxes shown as due on such returns as
well as all other taxes, assessments and government charges that are
due and payable; and no deficiency with respect to any such return has
been assessed
or proposed in any material respects. All tax liabilities have been
adequately provided for in the financial statements of the Company.
(y) The Company is not, nor will it become as a result of
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
2. PURCHASE AND SALE OF SHARES.
(a) Subject to the terms and conditions herein set forth,
(i) the Company agrees to issue and sell to each of the Underwriters,
and each of the Underwriters agree, severally and not jointly, to
purchase from the Company the number of Firm Shares set opposite the
name of such Underwriter in Schedule I hereto, at the following
purchase prices: (A) with respect to the Firm Shares not purchased by
the Company's directors and executive officers, as described in (B)
below, at a purchase price of $9.25 per share, and (B) with respect to
the Firm Shares purchased by the Company's directors and executive
officers, but only up to a maximum of 330,000 Firm Shares, at a
purchase price of $9.65 per share, (ii) in the event and to the extent
that the Underwriters shall exercise the election to purchase Optional
Shares as provided below, the Company agrees to issue and to sell to
each of the Underwriters, and each of the Underwriters agree, severally
and not jointly, to purchase from the Company, at a purchase price of
$9.25 per share, that portion of the number of Optional Shares as to
which such election shall have been exercised (to be adjusted by you so
as to eliminate fractional shares) determined by multiplying such
number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares that such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum number
of the Optional Shares that all of the Underwriters are entitled to
purchase hereunder.
(b) Company hereby grants to the Underwriters the
right to purchase at their election in whole
or in part from time to time up to 165,000
Optional Shares, at the purchase price of $9.25
per share for the sole purpose of covering
over-allotments in the sale of Firm Shares. Any
such election to purchase Optional Shares may be
exercised by written notice from you to the
Company, given from time to time within a period
of 30 calendar days after the date of this
Agreement and setting forth the aggregate number
of Optional Shares to be purchased and the date on
which the Optional Shares are to be delivered, as
determined by you but in no event (i) earlier than
the First Time of Delivery (as hereinafter
defined) or (ii) unless you and the Company
otherwise agree in writing, earlier than two or
later than ten business days after the date of
such notice. In the event you elect to purchase
all or a portion of the Optional Shares, the
Company agrees to furnish or cause to be furnished
to you the certificates, letters and opinions, and
to satisfy all conditions set forth in Section 7
hereof at each Subsequent Time of Delivery (as hereinafter defined).
3. OFFERING BY THE UNDERWRITERS. Upon the release of the Shares,
the several Underwriters propose to offer the Shares for sale upon the terms and
conditions disclosed in the Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates in definitive form
for the Shares to be purchased by each Underwriter hereunder, and in such
denominations and registered in such names as the Representative may request
upon at least 48 hours prior notice to the Company shall be delivered by or on
behalf of the Company to you for your account against payment by you of the
purchase price therefor by wire transfer of immediately available funds to an
account designated by the company. The closing of the sale and purchase of the
Shares shall be held at the offices of Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P.,
Atlanta, Georgia. The time and date of such delivery and payment shall be, with
respect to the Firm Shares, at 10:00 a.m., Atlanta, Georgia time, on the 3rd (or
if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the
Exchange Act, after 4:30 p.m., Washington, D.C. time, the 4th) full business day
after the execution of this Agreement or at such other legally permissible time
and date as you and the Company may agree upon in writing, and, with respect to
the Optional Shares, at 10:00 a.m., Atlanta, Georgia time, on the date specified
by you in the written notice given by you of the Underwriters' election to
purchase all or part of such optional shares, or at such other time and date as
you and the Company may agree upon in writing. Such time and date for delivery
of the Firm Shares is herein called the "First Time of Delivery," such time and
date for delivery of the Optional Shares, if not the First Time of Delivery, is
herein called a "Subsequent Time of Delivery," and each such time and date for
delivery is herein called a "Time of Delivery." The Company will make such
certificates available for checking and packaging at least 24 hours prior to
each Time of Delivery at your office at the address set forth above or such
other location designated by you to the Company. If the Representative so
elects, delivery of the Firm Shares and the Optional Shares, if any, may be made
by credit through full fast transfer to the accounts at the Depositary Trust
Company designated by the Representative.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Underwriters:
(a) The Company shall comply with the provisions of and
make all requisite filings with the Commission pursuant to and in
accordance with Rule 430A and subparagraph (1) (or, if applicable and
if consented to by you, subparagraph (4)) of Rule 424(b) not later than
the earlier of (i) the second business day following the execution and
delivery of this Agreement or (ii) the date on which the Prospectus is
first used after the Registration Statement is declared effective. The
Company will advise you promptly of any such filing pursuant to Rules
430A or 424(b).
(b) The Company will not file with the Commission the
Prospectus or any amendment or supplement to the Prospectus or any
amendment to the Registration Statement unless you have received a
reasonable period of time to review any such proposed amendment or
supplement and consented to the filing thereof and will use its
best efforts to cause any such amendment to the Registration Statement
to be declared effective as promptly as possible. Upon the request of
the Representative or counsel for the Representative, the Company will
promptly prepare and file with the Commission, in accordance with the
Rules and Regulations, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or
advisable in connection with the distribution of the Shares by the
Underwriters and will use its best efforts to cause any such amendment
to the Registration Statement to be declared effective as promptly as
possible. If required, the Company will file any amendment or
supplement to the Prospectus with the Commission in the manner and
within the time period required by Rule 424(b) under the Securities
Act. The Company will advise the Representative, promptly after
receiving notice thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and
will provide evidence to the Representative of each such filing or
effectiveness.
(c) The Company will advise you promptly after receiving
notice or obtaining knowledge of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or any part thereof or any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, (ii) the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (iii) any
request made by the Commission or any securities authority of any other
jurisdiction for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(d) If during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer, any events
shall have occurred as a result of which, in the judgment of the
Company or the opinion of the Underwriters, the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if for any reason it is necessary during such
same period to amend or supplement the Prospectus to comply with the
Securities Act or the Rules and Regulations or any law, the Company
will promptly notify you and upon your request (but at the Company's
expense) prepare and file with the Commission and any state or other
governmental securities commissions in jurisdictions where the Shares
have been sold by the Underwriters, an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such
compliance and will furnish without charge to each Underwriter and to
any dealer in securities, as many copies of such amended or
supplemented Prospectus as you may from time to time reasonably
request. Neither your consent to, nor the Underwriter's delivery of,
any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 7.
(e) The Company promptly from time to time will take such
action as you may reasonably request to qualify the Shares for offering
and sale under the securities or blue sky laws of such jurisdictions as
you may request and will continue such qualifications in effect for as
long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction. In the event that the
qualification of the Shares in any jurisdiction is suspended, the
Company shall so advise the Representative promptly in writing.
(f) The Company will deliver to, or upon the order of,
the Representative, from time to time, as many copies of the
Preliminary Prospectus as the Representative may reasonably request.
The Company will deliver to, or upon the order of, the Representative,
during the period when delivery of a Prospectus is required under the
Securities Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representative may
reasonably request. The Company will deliver to the Representative at
or before the Time of Delivery, four signed copies of the Registration
Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Representative such number of copies
of the Registration Statement (including such number of copies of the
exhibits filed therewith that may be reasonably requested), and of all
amendments thereto, as the Representative may reasonably request.
(g) The Company will, from time to time, after the
effective date of the Registration Statement file with the Commission
such reports as are required by the Securities Act, the Exchange Act
and the Rules and Regulations and the Company agrees to keep the Common
Stock registered pursuant to the Exchange Act for at least five years
after the date hereof. The Company shall also file with foreign, state
and other governmental securities commissions in jurisdictions where
the Shares have been sold by the Underwriters such reports as are
required to be filed by the securities acts and the regulations of
those jurisdictions.
(h) As soon as practicable, but in any event not later
than the last day of the thirteenth month after the effective date of
the Registration Statement, the Company will make generally available
to its security holders an earnings statement (which need not be
audited) in reasonable detail covering a period of at least 12
consecutive months beginning after the effective date of the
Registration Statement, complying with Section 11(a) of the Securities
Act and the Rules and Regulations and will advise you in writing when
such statement has been so made available.
(i) The Company will, for a period of three years from
the Time of Delivery, deliver to the Representative copies of annual
reports and copies of all other documents, reports and information
furnished by the Company to its shareholders or filed with the NASD or
any securities exchange pursuant to the requirements of such exchange
or with the Commission pursuant to the Securities Act or the Exchange
Act. The Company will
deliver to the Representative similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company's financial
statements.
(j) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company will not, without your prior written consent,
offer, pledge, issue, sell, contract to sell, grant any option for the
sale of, or otherwise dispose of (or announce any offer, pledge, sale,
grant of an option to purchase or other disposition), directly or
indirectly, any shares of Common Stock or securities convertible into,
exercisable or exchangeable for, shares of Common Stock, except as
provided in Section 2 and except as described in the Prospectus.
(k) Neither the Company nor any of its officers,
directors or affiliates will (i) take, directly or indirectly, prior to
the closing of the purchase and sale of the Shares, any action designed
to cause or to result in, or that might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the
Shares, (ii) sell, bid for, purchase or pay anyone any compensation for
soliciting purchases of, the Shares or (iii) pay or agree to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(l) The Company will apply the net proceeds from the
offering in the manner set forth under the heading "Use of Proceeds" in
the Prospectus, including the payment of the full amount required for
the capitalization of the Bank, and will timely report such use of
proceeds pursuant to Item 701 of Regulation S-B and S-K in its periodic
reports filed pursuant to Section 13(a) and 15(d) of the Exchange Act
in accordance with Rule 463 of the Securities Act or any successor
provision.
(m) Following the Time of Delivery, the Company will
diligently take all steps appropriate to obtain all Regulatory
Approvals and cause the Bank to be opened for the conduct of business
as described in the Prospectus.
(n) If at any time during the 90-day period after the
Registration Statement becomes effective, any rumor, 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 rumor, publication or event necessitates a supplement to or
amendment of the Prospectus) and after written notice from you advising
the Company to the effect set forth above, the Company agrees to
forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor,
publication or event.
(o) The Company will cause the Shares to be quoted on the
Nasdaq OTC Bulletin Board (or another exchange acceptable to the
Representative) at each Time of
Delivery and for at least five years from the date hereof.
6. EXPENSES. The Company will pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including without limitation all costs and
expenses incident to (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares under
the Securities Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement (including all amendments
thereto), any Preliminary Prospectus, the Prospectus and any amendments and
supplements thereto, this Agreement and any blue sky memoranda; (ii) the
delivery of copies of the foregoing documents to the Underwriters; (iii) the
filing fees of the Commission and the National Association of Securities
Dealers, Inc. relating to the Shares; (iv) the preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Shares,
including transfer agent's and registrar's fees; (v) the qualification of the
Shares for offering and sale under state securities and blue sky laws, including
filing fees and fees and disbursements of counsel for the Underwriters relating
thereto; (vi) any expenses of listing the Shares on the Nasdaq OTC Bulletin
Board; (vii) any expenses for travel, lodging and meals incurred by the Company
and any of its officers, directors and employees in connection with any meetings
with prospective investors in the Shares. It is understood, however, that,
except as provided in this Section, Section 8 and Section 10 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel (other than those related to qualification of the Shares under
state securities or blue sky laws).
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations
of the Underwriters hereunder to purchase and pay for the Shares to be delivered
at each Time of Delivery shall be subject, in their discretion, to the accuracy
of the representations and warranties of the Company contained herein as of the
date hereof and as of such Time of Delivery, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its covenants and agreements hereunder, and to the following
additional conditions precedent:
(a) The Registration Statement as amended to date shall
have become effective prior to the execution of this Agreement or at
such later date and/or time as shall have been consented to by you in
writing. If required, the Prospectus and any amendment or supplement
thereto shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 5(a) of this Agreement; no stop
order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted, threatened or, to the knowledge of
the Company and the Representative, contemplated by the Commission;
and all requests for additional information on the part of the
Commission shall have been complied with to your satisfaction.
(b) Xxxxx Xxxxx Mulliss & Xxxxx, L.L.P., counsel for the
Underwriters, shall have furnished to you such opinion or opinions,
dated such Time of Delivery, with
respect to such matters as you may reasonably require and which are
customary, and the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters and such firm may rely, as to matters of Georgia law, upon
the opinion of Powell, Goldstein, Xxxxxx & Xxxxxx LLP.
(c) You shall have received an opinion, dated such Time
of Delivery, of Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the
Company in form and substance satisfactory to you and your counsel, to
the effect that:
(i) The Company is a corporation in existence
and in good standing under the laws of the State of Georgia
and has the corporate power and authority to own or lease its
properties and conduct its business as described in the
Registration Statement and the Prospectus and to enter into
this Agreement and perform its obligations hereunder. The
Company is not qualified to transact business as a foreign
corporation under the laws of any other jurisdiction.
(ii) The Company has applied for registration as
a "bank holding company" under the Bank Holding Company Act to
acquire the stock of the Bank. The organizers of the Bank have
filed for and received preliminary conditional approval from
the OCC for the Bank to become a national bank under the laws
of the United States, and they have filed an application to
obtain deposit insurance from the FDIC.
(iii) The Bank is a national banking association
in organization under the laws of the United States of America
and, upon the issuance of articles of association by the OCC
will have the corporate power and authority to own or lease
its properties and conduct its business as described in the
Registration Statement and the Prospectus.
(iv) The Company's authorized, issued and
outstanding capital stock is as disclosed under the caption
"Capitalization" in the Prospectus. None of the issued shares
have been issued in violation of or subject to any preemptive
rights provided for by law, agreement or the Company's
Articles of Incorporation or Bylaws.
(v) Upon the issuance of articles of
association by the OCC, the shares of capital stock of the
Bank will be issued only to the Company free and clear of any
liens, claims or encumbrances of any kind, and the Bank will
become a wholly owned subsidiary of the Company.
(vi) The Shares to be sold by the Company have
been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued
and fully paid and nonassessable and will conform to the
description of the Common Stock contained in the Prospectus.
The Underwriters will receive the Shares to be issued and
delivered by the Company pursuant to this
Agreement, free and clear of all liens, encumbrances, claims,
security interests, restrictions, shareholders' agreements and
voting trusts whatsoever.
(vii) To the knowledge of such counsel, the
Company does not have outstanding any options to purchase, or
any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments
to issue or sell any capital stock, and there are no
preemptive rights or other rights to subscribe for or purchase
any capital stock of the Company, or any restriction upon the
transfer of, the Shares pursuant to the Company's Articles of
Incorporation or Bylaws or any agreement or other instrument
to which the Company is a party or by which it may be bound,
except as described in the Prospectus. To the knowledge of
such counsel, neither the filing of the Registration Statement
nor the offer or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the
registration of any Common Stock or any other securities of
the Company.
(viii) The issue and sale of the Shares being
issued at such Time of Delivery and the performance of this
Agreement and the consummation of the transactions herein
contemplated will not conflict with, or (with or without the
giving of notice or the passage of time or both) result in a
breach or violation of any of the terms or provisions of, or
constitute a default under any document or agreement which is
an Exhibit to the Registration Statement, or violate any
provision of the Articles of Incorporation, Articles of
Association, Bylaws or other governing instruments of the
Company or the Bank or any statute, rule or regulation or, to
such counsel's knowledge, except for such conflicts, breaches,
violations or defaults as would not individually, or in the
aggregate, materially and adversely affect the business,
financial condition or results of operations of the Company
and the Bank, taken as a whole, any order, judgment or decree
of any court or governmental agency or body having
jurisdiction over the Company or the Bank or any of their
respective properties or assets.
(ix) No consent, approval, authorization or order
from, or registration, qualification or filing with, any
governmental agency or body or third party is required for the
issue and sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except (a) the
registration of the Shares under the Securities Act and such
as may be required by the NASD and under state securities or
blue sky laws in connection with the offer, sale and
distribution of the Shares by the Underwriters, and (b) as
required in connection with the Regulatory Approvals.
(x) This Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
valid and binding agreement of the Company enforceable against
the Company in accordance with its terms subject, as to
enforcement, to applicable bankruptcy, insolvency,
reorganization and
moratorium laws and other laws relating to or affecting the
enforcement of creditors' rights generally and to general
equitable principles, and except as the enforceability of
rights to indemnity and contribution under this Agreement may
be limited under applicable securities laws and further
subject to 12 U.S.C. Section 1818(b)(6)(D) and similar bank
regulatory powers and to the application of the public policy
underlying such laws.
(xi) The Company and the Bank have obtained or
have filed for all licenses, consents and approvals, and have
satisfied or have taken all action required at this time to
satisfy all eligibility and other similar requirements imposed
by federal and state regulatory bodies, administrative
agencies or other governmental bodies, agencies or officials,
in each case necessary for the conduct of the banking business
in which they are engaged or are contemplated to be engaged as
described in the Prospectus (except where the failure to have
any such licenses, consents, and approvals, or to have
satisfied or taken such action to satisfy the requirements,
individually or in the aggregate, would not have a material
adverse effect on the business, properties, operations, or
financial condition of the Company or its subsidiaries, taken
as a whole). With respect to any such necessary licenses,
consents and approvals, and any such necessary eligibility and
other similar requirements that the Company or the Bank does
not have at this time, (i) all applications therefor are, to
such counsel's knowledge, complete and accurate, and have been
filed with the appropriate regulatory authorities, and
(ii) counsel knows of no reason why the same will not be
received or satisfied prior to the time the same are required
to conduct business as described in the Prospectus.
(xii) To such counsel's knowledge, there is not
pending or threatened any action, suit, proceeding, inquiry or
investigation, to which the Company or the Bank is a party, or
to which property of the Company or the Bank is subject,
before or brought by any court or governmental agency or body
that is required to be disclosed in the Registration Statement
and the Prospectus and has not been properly disclosed
therein. In rendering the opinion set forth in this paragraph,
such counsel shall not be required to search the dockets of
any courts or governmental authority.
(xiii) To the knowledge of such counsel, neither
the Company nor the Bank is in violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to the Company or the Bank, or any decree of any
court or governmental agency or body having jurisdiction over
the Company or the Bank, except where such violation does not
and will not have a material adverse effect on the Company and
the Bank as a whole.
(xiv) The Registration Statement and the
Prospectus and each amendment or supplement thereto (other
than the financial statements and schedules and other
financial information included therein, as to which such
counsel need express no opinion), as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations. The descriptions in the "Supervision
and Regulation" section of the Registration Statement and the
Prospectus of statutes, rules and regulations are accurate and
fairly present the information required to be shown; and such
counsel does not know of any statutes, rules, regulations or
legal or governmental proceedings required to be described in
the Registration Statement or Prospectus that are not
described as required or of any contracts or documents of a
character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required.
(xv) The Registration Statement and all
post-effective amendments thereto have become effective under
the Securities Act; any required filing of the Prospectus
pursuant to Rule 430A and Rule 424(b) has been made in the
manner and within the time period required by such rules; and
to such counsel's knowledge no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and, to such counsel's knowledge, no
proceedings for that purpose have been instituted or
threatened or are contemplated by the Commission.
(xvi) The Company is not, and will not be as a
result of the consummation of the transactions contemplated by
this Agreement, an "investment company," or a company
"controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940.
In addition, such opinion shall also contain a
statement that such counsel has participated in conferences
with officers and representatives of the Company,
representatives of the independent public accountants for the
Company and representatives of the Underwriters at which the
contents of the Registration Statement and the Prospectus and
related matters were discussed and, although such counsel is
not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus
(other than as specifically provided above), and any
amendments or supplements thereto, on the basis of the
foregoing, no facts have come to the attention of such counsel
that would lead such counsel to believe that either the
Registration Statement at the time it became effective
(including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant
to Rule 430A(b) or Rule 434, if applicable) or any amendment
thereof made prior to the Closing Date as of the date of such
amendment, contained an untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus as of its date (or any
amendment thereof or supplement thereto made prior to the
Closing Date as of the date of
such amendment or supplement) and as of the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no belief or opinion with respect to the financial
statements and schedules and other financial and statistical data
included or incorporated by reference therein).
In rendering any such opinion, such counsel may rely,
as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company
and public officials.
(d) You shall have received from Xxxxxx Xxxxxx Xxxxx,
LLP, letters dated, respectively, the date of this Agreement and the
effective date of the most recently filed post-effective amendment to
the Registration Statement and also at each Time of Delivery, in form
and substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus.
(e) You shall have received at each Time of Delivery a
certificate or certificates of the President and Chief Executive
Officer and the Chief Financial Officer of the Company to the effect
that:
(i) the representations and warranties of the
Company in Section 1 of this Agreement are true and correct,
as if made at and as of the First Time of Delivery or the
Subsequent Time of Delivery, as the case may be, and the
Company has complied with all the agreements and covenants and
satisfied all the conditions on its part to be performed or
satisfied at or prior to the Time of Delivery and as to such
other matters as you may reasonably request;
(ii) no stop order suspending the effectiveness
of the Registration Statement has been issued, and no
proceedings for that purpose have been initiated or are
pending, or to their knowledge, contemplated under the
Securities Act;
(iii) all filings required by Rule 424 and
Rule 430A of the Rules and Regulations have been made;
(iv) they have carefully examined the
Registration Statement and the Prospectus, and any amendments
or supplements thereto, and in his or her opinion, such
documents do not include any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were
made; and
(v) since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been so set forth.
(f) Since the date of the latest audited financial
statements included in the Prospectus, neither the Company nor the Bank
shall have sustained (i) any loss or interference with their respective
businesses from fire, explosion, flood, hurricane or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as disclosed in
or contemplated by the Prospectus, or (ii) any change, or any
development involving a prospective change (including without
limitation a change in management or control of the Company), in or
affecting the position (financial or otherwise), results of operations,
net worth or business prospects of the Company and the Bank, otherwise
than as disclosed in or contemplated by the Prospectus (including any
amendment), the effect of which, in either such case, is in your
judgment so material and adverse as to make it unpracticable or
inadvisable to proceed with the purchase, sale and delivery of the
Shares being delivered at such Time of Delivery as contemplated by the
Registration Statement, as amended as of the date hereof.
(g) Subsequent to the date hereof there shall not have
occurred any of the following: (i) any suspension or limitation in
trading in securities generally on the New York Stock Exchange or the
over-the-counter market (other than normal market breaks or cooling
periods), or any setting of minimum prices for trading on such
exchange, or if trading in any securities of the Company has been
suspended by the Commission, or limitations on prices for trading
(other than limitations on hours or numbers of days of trading) have
been fixed, or maximum ranges for prices for securities have been
required, by the Nasdaq OTC Bulletin Board or the NASD or by order of
the Commission or any other governmental authority; (ii) a moratorium
on commercial banking activities in New York declared by either federal
or state authorities; (iii) any major outbreak or major escalation of
hostilities involving the United States, declaration by the United
States of a national emergency (other than with respect to natural
disasters) or war or any other national or international calamity or
emergency or any material adverse change in general economic, political
or financial conditions if the effect of any such event specified in
this clause (iii) in your judgment makes it impracticable or
inadvisable to proceed with the purchase, sale and delivery of the
Shares being delivered at such Time of Delivery as contemplated by the
Registration Statement.
(h) The Shares shall be approved for quotation on the
Nasdaq OTC Bulletin Board when issued.
(i) The Company shall have furnished the Representative
with evidence of its receipt of the preliminary conditional approval of
the OCC and the applications for each of the Regulatory Approvals.
(j) The Representative shall have received the Lockup
Agreements as described in Section 1(v).
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the Company in
Section 1 of this Agreement; (ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or (B) any application or other document, or
any amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities or blue sky
laws thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"); or (iii) the omission or alleged
omission to state in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application, a material fact required to be stated therein or necessary
to make the statements therein not misleading, and will reimburse each
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim, damage, liability
or action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto or any Application in reliance upon and in conformity with
written information furnished to the Company by any Underwriter expressly for
inclusion in the Prospectus beneath the heading "Underwriting". The Company will
not, without the prior written consent of each Underwriter, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding (or related cause of action or portion thereof) in
respect of which indemnification may be sought hereunder (whether or not such
Underwriter is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of such
Underwriter from all liability arising out of such claim, action, suit or
proceeding or related cause of action or portion thereof.
(b) Each Underwriter agrees to indemnify and hold
harmless the Company and its officers, directors, agents, representatives and
affiliates against any losses, claims, damages or liabilities to which the
Company or its officers, directors, agents, representatives and affiliates 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 or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto or
any Application or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
through the Representative expressly for inclusion in the Prospectus beneath the
heading "Underwriting"; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) and (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party); provided, however, that if the defendants in any such action included
both the indemnified party and the indemnifying party, and the indemnified party
shall have reasonably concluded that there may be one or more legal defenses
available to it or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
indemnified party and such indemnified party shall have the right to select
separate counsel to defend such action on behalf of such indemnified party.
After such notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any action and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 8 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense of the action,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that in connection with such action the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
which separate counsel shall be designated by the Representative in the case of
indemnity arising under paragraph (a) of this Section 8) or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Nothing in this Section 8(c)
shall preclude an indemnified party from participating at its own expense in the
defense of any such action so assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of
any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriter on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and the Underwriter on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriter on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
the Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 8 shall be in addition to any
liability which the Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the meaning of the
Securities Act.
9. DEFAULT OF UNDERWRITERS. (a) If any Underwriter defaults in
its
obligation to purchase Shares at a Time of Delivery, you may in your discretion
arrange for you or another party, or other parties to purchase such shares on
the terms contained herein. If within 36 hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, the Company
shall be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such Shares, or
the Company notifies you that it has so arranged for the purchase of such
Shares, you or the Company shall have the right to postpone a Time of Delivery
for a period of not more than 7 days in order to effect whatever change is made
necessary thereby in the Registration Statement or the Prospectus, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Prospectus that in your opinion
may thereby be made necessary. The cost of preparing, printing and filing any
such amendments shall be paid for by the Underwriters. The term "Underwriters"
as used in this Agreement shall include any person substituted under this
Section with effect as if such person had originally been a party to this
Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed one-eleventh of the aggregate
number of Shares to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to purchase the
number of Shares which such Underwriter agreed to purchase hereunder at such
Time of Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made, but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. TERMINATION. (a) This Agreement may be terminated with
respect to the Firm Shares or any Optional Shares in the sole discretion of
the Representative by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that
(i) any condition to the obligations of the Underwriters set forth in Section
7 hereof has not been satisfied, or (ii) the Company shall have failed,
refused or been unable to deliver the Shares or to perform all obligations
and satisfy all conditions on its part to be performed or satisfied hereunder
at or prior to such Time of Delivery, in either case other than by reason of
a default by any of the Underwriters. If this Agreement is terminated
pursuant to this Section 10(a), the Company will reimburse the Underwriters
upon demand for all out-of-pocket expenses (including counsel fees and
disbursements) that shall have been incurred by it in connection with the
proposed purchase and sale of the Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in Section 9(a), the aggregate number of such Shares
which remain unpurchased exceeds one-eleventh of the aggregate number of Shares
to be purchased at such Time of Delivery, or if the Company shall
not exercise the right described in Section 9(b) to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to a Subsequent Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) thereupon will terminate, without liability on the part of any
nondefaulting Underwriter or the Company, except for the expenses to be borne by
the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
11. SURVIVAL. The respective indemnities, agreements,
representations, warranties and other statements of the Company, its officers
and the Underwriter, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of the Underwriter or any controlling person
referred to in Section 8(e) or made by or on behalf of the Company, or any
officer or director or controlling person of the Company referred to in
Section 8(e), and shall survive delivery of and payment for the Shares. The
respective agreements, covenants, indemnities and other statements set forth
in Sections 6, 8 and 13 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder shall be in writing and,
if sent to the Representative, shall be mailed, delivered or faxed and confirmed
in writing to Wachovia Securities, Inc., IJL Financial Center, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Investment Banking
Department (with a copy to Xxxxxx X. Xxxx at Wachovia Securities, Inc.,
Resurgens Plaza, 000 X. Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, and Xxxx X.
Xxxxxxxx, Xx. at Xxxxx Xxxxx Mulliss & Xxxxx L.L.P., 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 28202), and if sent to the Company, shall be mailed,
delivered or faxed and confirmed in writing to the Company at 0000 Xxxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, Attention: President and Chief Executive Officer (with a
copy to Xxxxxxx X. Xxxxxxx at Powell, Goldstein, Xxxxxx & Xxxxxx, LLP, 191
Peachtree Street, N.E., 16th Floor, Atlanta, Georgia 30303).
13. RIGHT OF FIRST REFUSAL. The Company grants to the
Representative an unconditional right of first refusal to serve as exclusive or
lead advisor to the Company on all corporate finance transactions undertaken or
considered by the Company for three years from the effective date of the
Prospectus. The Representative shall not be entitled to more than one payment or
fee in exchange for the waiver or termination of this right of first refusal,
and any payment or fee to waive or terminate the right of first refusal shall be
paid in cash and will not exceed the greater of (a) one percent (1%) of the
aggregate purchase price of the Shares purchased pursuant to this Agreement, and
(b) five percent (5%) of the underwriting discount or commission paid in
connection with the future financing (including any overallotment option that
may be exercised).
14. REPRESENTATIVE. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you will be binding upon all the Underwriters.
15. BINDING EFFECT. This Agreement shall be binding upon, and
inure solely to the benefit of, each Underwriter and the Company and to the
extent provided in Sections 8 and 10 hereof, the officers and directors and
controlling persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriters shall be deemed a successor or assign by reason
merely of such purchase.
16. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina without
giving effect to any provisions regarding conflicts of laws.
17. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by Wachovia Securities, Inc., this letter will constitute
a binding agreement among the Underwriters and the Company.
Very truly yours,
FUTURUS FINANCIAL SERVICES, INC.
By:
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
WACHOVIA SECURITIES, INC.
By:
Name: ____________________________________
Title: ____________________________________
SCHEDULE I
FUTURUS FINANCIAL SERVICES, INC.
1,100,000 SHARES
COMMON STOCK
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER OF TO BE PURCHASED
FIRM SHARES TO IF MAXIMUM
UNDERWRITER BE PURCHASED OPTION EXERCISED
----------- ------------ ----------------
Wachovia Securities, Inc.
Total
