EXHIBIT 1.2
FUTURUS FINANCIAL SERVICES, INC.
SALES AGENCY AGREEMENT
_____________, 2000
WACHOVIA SECURITIES, INC.
IJL Financial Center
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
This letter sets forth and confirms the terms and conditions of the
engagement (the "Agreement") of Wachovia Securities, Inc. ("WSI") by Futurus
Financial Services, Inc. (the "Company") as sales agent for the Company with
respect to the Company's proposed initial public offering (the "Offering") of a
minimum of 900,000 shares and a maximum of 1,100,000 shares of the Company's
common stock, no par value (the "Shares"). The Shares will be offered at a
purchase price of $10.00 per share (the "Purchase Price") and subject to the
terms and conditions set forth in the preliminary prospectus dated the date
hereof, as amended or supplemented (the "Prospectus"), relating to the offer and
sale of the Shares.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with WSI as follows:
(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
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Page 2
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 or 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 WSI 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
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Page 3
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
(1) 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;
(2) to the OCC, for approval to charter a national
bank; and
(3) 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
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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
Wachovia Securities, Inc.
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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
subscribers 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.
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(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) 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.
(r) 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.
(s) 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.
(t) 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
Wachovia Securities, Inc.
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Company, any director or executive officer of the Company or
the Bank has accepted or received any unlawful contributions
or payments.
(u) 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.
(v) 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.
(w) 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.
(x) The Company has approved the form of subscription agreement
(the "Subscription Agreement") and escrow agreement (the
"Escrow Agreement") that have been provided to WSI and will be
utilized in the Offering.
(y) The Company has or will have the full legal right, power and
authority to enter into and perform this Agreement and to sell
and deliver the Shares as provided in the Prospectus and
herein, this Agreement has been duly authorized by the
Company's Board of Directors and duly executed and delivered
on behalf of the Company, and this Agreement is a valid, legal
and binding obligation of the Company.
(z) 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 WSI and
any other registered broker-dealers approved by the Company
which are party to a selected dealer agreement to act as
selling agents for the Shares (the "Selected Dealers").
(aa) The Company agrees as follows:
(i) The Company will furnish to WSI copies of the
Applications and all correspondence with the Office
of the Comptroller of the Currency and the FDIC
relating to the Applications;
(ii) The Company will notify WSI immediately, and confirm
such notice in writing, of the receipt of any
comments from any state securities commission or
Wachovia Securities, Inc.
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Page 8
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;
(iii) 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".
(bb) The Company acknowledges and agrees that WSI and its
affiliates may, from time to time, have relationships and
engagements with the Company or other parties including, but
not limited to, its customers, suppliers, creditors, potential
investors and investors. Such engagements and relationships
may include, but are not limited to, the following: (i) loans,
other extensions of credit or financial accommodations; (ii)
treasury and cash management services; (iii) acting in various
capacities in connection with private or public placement of
debt and/or equity; (iv) acting as trustee or otherwise
performing fiduciary services for the Company or such other
parties or in connection with transactions in which the
Company is involved or may have an interest, including without
limitation any employee benefit plan or trust; (v) any and all
forms of depository services; (vi) any and all other services
or products which may be offered or provided by WSI or any of
its affiliated companies; and (vii) other services or products
customarily provided from time to time by financial
institutions. The Company waives any and all conflicts of
interest, which may result from WSI dealing in any of the
aforesaid capacities. Specifically, the Company waives any
conflict that may arise on account of, or in connection with
WSI's engagement pursuant to this Agreement. The Company
acknowledges that WSI and its affiliates may, in the course of
such other relationships, acquire information about the
Company or such other parties but WSI shall have no obligation
to disclose such information, or the fact that it has such
information in its possession, to the Company or to use such
information on the Company's behalf.
(cc) The Company represnets that each person associated with the
Company that intendends to participate in the distribution of
the Shares meets the safe harbor provision of SEC Rule 3a4-1
with respect to exemption from refistration as a
broker/dealer.
2. SERVICES TO BE PROVIDED BY WSI
WSI is hereby appointed as sales agent for the Offering. We agree that
we will forward any subscription proceeds which we receive to the
escrow agent by 12:00 PM, noon, of the following business day. We will
require all funds received with subscriptions to be payable to the
"Bankers Bank, Escrow Agent for Futurus Financial Services, Inc.".
In connection with this Agreement, the scope of WSI's services shall
include, but not be limited to, the following:
(a) Pursuant to this Agreement, WSI will serve as sales agent for
the Company and will act as a placement agent for the Shares
on a best efforts basis.
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(b) WSI will perform its duties pursuant to this Agreement in
compliance with all applicable federal and state securities
laws, and will solicit subscriptions for the Shares only by
means of the Prospectus and only in such jurisdictions
specified by the Company and in which the Company may make
such offers and sales.
In exchange for the services of WSI pursuant to this Agreement, the
Company agrees to pay WSI a sales agent commission (the "Sales
Commission")amounting to 5.00% of the gross proceeds for all Share
subscriptions accumulated and delivered to the Company's escrow agent
(the "Escrow Agent") by WSI.
Such amount shall be paid at such time as the Shares sold are accepted
by and payment in full is received therefor by the Escrow Agent and
released to the Company and in no event later than ten days after the
completion of the Offering.
Regardless of whether the transactions described herein have been
consummated, the Company shall reimburse WSI for the agreed upon
out-of-pocket expenses of WSI totaling $65,000. To date the Company has
paid $15,000 of such expenses to WSI and the balance shall be paid at
the time the Escrow Agent releases the funds to the Company or the
offering is terminated, as the case may be.
3. PAYMENT OF OFFERING EXPENSES
In addition to the amounts set forth in Section 2, above, The Company
is expected to be responsible for the following expenses of the
Offering:
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 __ hereof, including without limitation
all costs and expenses incident to:
(a) 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;
(b) the delivery of copies of the foregoing documents to WSI;
(c) the filing fees of the Commission and the National Association
of Securities Dealers, Inc. relating to the Shares;
(d) the preparation, issuance and delivery to WSI of any
certificates evidencing the Shares, including transfer agent's
and registrar's fees;
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(e) 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 WSI relating thereto;
(f) any expenses of listing the Shares on the Nasdaq OTC Bulletin
Board;
(g) 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, WSI 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);
(h) any fees and other costs relating the services of the Escrow
Agent and any expenses associated with the preparation of the
Escrow Agreement.
4. COVENANTS OF THE COMPANY
(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 WSI or
counsel for WSI, 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 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 WSI, 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 WSI of each such filing or effectiveness.
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(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 WSI, any events shall have occurred as a
result of which, in the judgment of the Company or the opinion
of WSI, 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 WSI, an amendment or supplement to
the Prospectus that corrects such statement or omission or
effects such compliance and will furnish without charge to WSI
and to any dealer in securities, as many copies of such
amended or supplemented Prospectus as you may from time to
time reasonably request.
(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 WSI promptly in
writing.
(f) The Company will deliver to, or upon the order of, WSI, from
time to time, as many copies of the Preliminary Prospectus or
Prospectus as WSI may reasonably request. The Company will
deliver to, or upon the order of, WSI, 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 WSI may reasonably
request. The Company will deliver to WSI 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 WSI may
reasonably request.
Wachovia Securities, Inc.
__________, 2000
Page 12
(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 WSI 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 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
the Escrow Agent releases funds to the Company, deliver to WSI
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 WSI 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) 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.
(k) 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.
(l) Following the time the Escrow Agent releases funds to the
Company, 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.
Wachovia Securities, Inc.
__________, 2000
Page 13
(m) 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.
5. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless WSI against
any losses, claims, damages or liabilities, joint or several,
to which such WSI 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
WSI for any legal or other expenses reasonably incurred by WSI
in connection with investigating, defending against or
appearing as a third-party witness in connection with any such
loss, claim, damage, liability or action. The Company will
not, without the prior written consent of WSI, 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
WSI is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an
unconditional release of WSI from all liability arising out of
such claim, action, suit or proceeding or related cause of
action or portion thereof.
(b) Promptly after receipt by an indemnified party under
subsection (a) 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
Wachovia Securities, Inc.
__________, 2000
Page 14
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 5 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 5) 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 5(b) shall preclude an indemnified
party from participating at its own expense in the defense of
any such action so assumed by the indemnifying party.
(c) If the indemnification provided for in this Section 5 is
unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) 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 WSI 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 (b) 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 WSI
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 WSI 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
Wachovia Securities, Inc.
__________, 2000
Page 15
bear to the total sales commissions received by WSI. 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 WSI 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 WSI agree that it would not be just and
equitable if contributions pursuant to this subsection (c)
were determined by pro rata allocation (even if WSI 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 (c). 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 (c)
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 (c), WSI
shall not be required to contribute any amount in excess of
the amount by which the total price at which the Shares
offered by it and subscribed to by the public exceeds the
amount of any damages which WSI 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.
(d) The obligations of the Company under this Section 5 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 WSI within the meaning of
the Securities Act; and the obligations of WSI under this
Section 5 shall be in addition to any liability which WSI 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.
7. SURVIVAL
The respective indemnities, agreements, representations, warranties and
other statements of the Company, its officers and WSI, 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
WSI or any controlling person referred to in Section 5(d) or made by or
on behalf of the Company, or any officer or director or controlling
person of the Company referred to in Section 5(d), and shall survive
delivery of and payment for the Shares. The respective agreements,
covenants, indemnities and other statements set forth in Sections 3 and
5 hereof shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement.
8. NOTICES
Wachovia Securities, Inc.
__________, 2000
Page 16
All communications hereunder shall be in writing and, if sent to WSI,
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).
9. BINDING EFFECT
This Agreement shall be binding upon, and inure solely to the benefit
of WSI and the Company and to the extent provided in Sections 5 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 WSI
shall be deemed a successor or assign by reason merely of such
purchase.
10. GOVERNING LAW; ASSIGNMENTS
This Agreement shall be governed by the laws of the State of New York.
The Company and WSI each hereby waives any right to a trial by jury
with respect to any claim or action arising out of the engagement of
WSI under this Agreement. The Company hereby consents to the
jurisdiction of any state or federal court of competent jurisdiction
sitting within the area comprising the Southern District of New York or
the Northern District of Georgia as well as to the jurisdiction of all
courts from which an appeal may be taken from such courts, for the
purpose of any litigation, proceeding or other action arising out of
the Company's obligations under or with respect to this Agreement, and
expressly waives any and all objections the Company may have as to
venue in any of such courts. Neither party may assign this Agreement
without the prior written consent of the other party.
11. 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.
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 WSI.
Very truly yours,
Wachovia Securities, Inc.
__________, 2000
Page 17
FUTURUS FINANCIAL SERVICES, INC.
By:_________________________
Confirmed and Accepted,
WACHOVIA SECURITIES, INC.
By:_________________________
Xxxxxx X. Xxxx
Senior Vice President
