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EXHIBIT 1
EAGLE BANCSHARES, INC.
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
AGREEMENT AMONG UNDERWRITERS
INCLUDING
UNDERWRITING AGREEMENT
AND
SELECTED DEALER AGREEMENT
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Xxxxxxxxxx/Xxxxxxx Xxxx Corporation
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxx & Company, Inc.
Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
EAGLE BANCSHARES, INC.
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
AGREEMENT AMONG UNDERWRITERS
____________, 1996
To each of the Underwriters named in Schedule I
to the attached Underwriting Agreement
Ladies and Gentlemen:
This is to confirm that the Underwriters agree among themselves as
follows with reference to their proposed purchases severally of an aggregate of
1,300,000 shares (the "Firm Shares") and up to an aggregate of 195,000
additional shares (the "Optional Shares") of Common Stock, $1.00 par value per
share (the "Common Stock"), of Eagle Bancshares, Inc., a Georgia corporation
(the "Company"). The Firm Shares and any Optional Shares which the
Underwriters elect to purchase pursuant to the Underwriting Agreement (as
hereinafter defined) are collectively referred to herein as the "Shares."
1. Each Underwriter agrees that it will purchase, on the terms
and subject to the conditions of an underwriting agreement in substantially the
form attached hereto (the "Underwriting Agreement"), the number of Shares
provided therein to be purchased by it (such number of Shares, including any
Shares to be so purchased by such Underwriter pursuant to Section 9 of the
Underwriting Agreement, being herein referred to as the "underwriting
obligation" of such Underwriter). Each Underwriter authorizes us as its
representatives (collectively, the "Representatives" and individually, a
"Representative") to execute and deliver the Underwriting Agreement in
substantially the form attached hereto and to exercise in our discretion all of
the authority vested in us therein. We are also authorized to take all action
that
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we may believe desirable in carrying out the provisions of the Underwriting
Agreement, including authority to agree to changes in those who are to be
Underwriters and, subject to the following paragraph, in the number of Firm
Shares and Optional Shares to be set forth opposite the name of such
Underwriter in Schedule I to the Underwriting Agreement, and to agree to any
variation in the terms of performance of the Underwriting Agreement and this
Agreement which, in our judgment, will not have a material adverse effect upon
the interests of the Underwriters.
Notwithstanding the provisions of the preceding paragraph, the consent
of an Underwriter shall be required for any increase in the number of Shares to
be purchased by such Underwriter under the Underwriting Agreement, except in
the following cases: (a) an increase in the number of Shares to be purchased by
such Underwriter, which is caused by the failure of another Underwriter or
Underwriters to perform its or their obligations under the Underwriting
Agreement; or (b) an increase in the number of such Shares as a result of (i)
an increase in the aggregate number of Shares proposed to be purchased by the
Underwriters as a whole, (ii) a reallotment of Shares among the Underwriters,
or (iii) any other cause, which in any such case (i) through (iii) results in
an aggregate net change of 25% or less in the number of Shares to be purchased
by such Underwriter.
2. The Firm Shares shall be released for sale to the public at
the initial public offering price as soon after the execution and delivery of
the Underwriting Agreement as in our judgment is advisable, but (except with
the consent of such of the Underwriters whose underwriting obligations
aggregate fifty-one percent or more of the Firm Shares under the Underwriting
Agreement) not later than the seventh full business day after the execution and
delivery of the Underwriting Agreement.
Each Underwriter authorizes us, for its account, to exercise all or
such portion of any over-allotment option to purchase Optional Shares under the
Underwriting Agreement as we in our discretion shall determine.
3. Each Underwriter authorizes us, for its account, to reserve
for sale, and to sell and deliver to securities dealers selected by us, who may
include any of the Underwriters, such number as we may determine of the Shares
which such Underwriter agrees to purchase under the Underwriting Agreement.
Such sales shall be made for the respective accounts of the Underwriters in the
same proportions, as nearly as may be practicable and so long as Shares of the
respective Underwriters are available therefor, as the respective numbers of
Shares initially so reserved for such sales. Such sales shall be made at the
public offering price, less a concession initially of not in excess of $.____
per share with respect to the Shares so sold. Underwriters and such dealers
may allow a portion of such concession (the "reallowance") initially of not in
excess of $.___ per share of the Shares so sold to (i) any member of the
National Association of Securities Dealers, Inc. (the "NASD"), acting as
principal or as buyer's agent, provided such member agrees in writing that the
reallowance is to be retained and not reallowed in whole or in part and also
agrees in writing to comply with Section 24 of Article
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III of the Rules of Fair Practice of the NASD or (ii) foreign dealers or
institutions ineligible for membership in the NASD that agree in writing (x)
that the reallowance is to be retained and not reallowed in whole or in part,
(y) not to resell Shares (A) to purchasers in, or to persons who are nationals
of, the United States of America or (B) when there is a public demand for the
Shares, to persons specified as those to whom members of the NASD participating
in a distribution may not sell and in connection therewith, comply with the
Interpretation with respect to Free-Riding and Withholding of the NASD, and (z)
to comply, as though such foreign dealer or institution were a member of the
NASD, with Sections 8, 24, 25 to the extent applicable to foreign nonmember
brokers or dealers, and 36 of such Article.
Each Underwriter also authorizes us to reserve for sale, and
authorizes us or any Underwriter designated by us to sell and deliver for its
account to such retail purchasers as we may select, at the public offering
price, such number as we may determine of the Shares which such Underwriter
agrees to purchase under the Underwriting Agreement. Such reservations and
sales to retail purchasers shall be made for the respective accounts of the
Underwriters in the same proportions, as nearly as may be practicable and so
long as Shares of the respective Underwriters are available therefor, as the
respective underwriting obligations of the Underwriters.
Each Underwriter further authorizes us to reserve for sale, and
authorizes us or any Underwriter designated by us to sell and deliver for its
account to certain of the Company's directors, officers and employees to be
specified by the Company in accordance with Section 2 of the Underwriting
Agreement (the "Directed Share Purchasers") at the public offering price, less
the concession to dealers, such number as we may determine of the Directed
Shares (as defined in Section 2 of the Underwriting Agreement) which such
Underwriter agrees to purchase under the Underwriting Agreement. Such
reservations and sales to Directed Share Purchasers shall be made for the
respective accounts of the Underwriters in the same proportions, as nearly as
may be practicable and so long as Directed Shares of the respective
Underwriters are available therefor, as the respective underwriting obligations
of the Underwriters.
At or before the time the Firm Shares are released for sale to the
public, we will advise each Underwriter as to the number of Firm Shares
initially reserved for sale for its account pursuant to this Section. Each
Underwriter authorizes us from time to time to add to the reserved Shares any
Shares of such Underwriter then remaining unsold and to release to it any
reserved Shares of such Underwriter then remaining unsold.
Each Underwriter authorizes us, on its behalf and as its
Representatives, to take all such actions as we may deem advisable in respect
of all matters pertaining to sales of reserved Shares to dealers, to retail
purchasers and to Directed Share Purchasers, including the right to make
variations in the selling arrangements, and, after the Firm Shares are released
for sale for the public, to vary from time to time the offering price,
concessions and reallowances to dealers, and other terms of sale of the Shares
hereunder and under such selling arrangements.
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4. Sales of Shares by Underwriters, except as otherwise set forth
herein, shall be on the terms specified under the selling arrangements then in
effect. Each Underwriter represents that in connection with the offering it
has conformed, and agrees that it will conform, with the provisions of Rule
10b-6 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), with regard, among other things, to trading by underwriters.
5. We may, in our discretion, charge the account of any
Underwriter with an amount equal to the concession allowed to dealers in
respect of each Share purchased under the Underwriting Agreement by such
Underwriter and not sold by us for its account (and each Share which we believe
has been substituted therefor) which may be delivered against a purchase
contract made by us for the account of any Underwriter prior to the later of
(a) the termination of all of the provisions referred to in Section 10 hereof
or (b) the covering by the Representatives of any short position created by
them for the accounts of the Underwriters pursuant to Section 9 hereof, or in
lieu of such charge, require such Underwriter to repurchase on demand at the
total cost thereof (including commissions), plus transfer taxes, any such Share
so delivered.
6. Upon our request each Underwriter will deliver to
Interstate/Xxxxxxx Xxxx Corporation payment for the Shares to be purchased by
such Underwriter under the Underwriting Agreement in an amount equal to the
initial public offering price for such Shares less the concession to dealers.
Such payment shall be made in such form and at such times and places as may be
specified in such request, and each Underwriter authorizes Interstate/Xxxxxxx
Lane Corporation to make payment for such Shares against their delivery for its
account hereunder.
7. We shall remit to each Underwriter, as promptly as
practicable, the amounts received by us from retail purchasers and dealers and
Directed Share Purchasers as payment in respect of Shares sold by us for the
account of such Underwriter pursuant to the provisions of Section 3 hereof for
which payment has been received, less the concession to dealers (a) in the case
of amounts received from retail purchasers, (b) in the case of amounts received
from Directed Share Purchasers, and (c) in the case where amounts received from
dealers are equal to the public offering price. Shares purchased by each
Underwriter under the Underwriting Agreement and not reserved or sold by us for
its account pursuant to the provisions of Section 3 hereof shall be delivered
to such Underwriter as promptly as practicable after their receipt by us. Any
Shares so purchased by any Underwriter and so reserved which remain unsold at
any time prior to the settlement of accounts hereunder may, in our discretion,
and shall, upon the request of such Underwriter, be delivered to such
Underwriter, but, until the termination of all of the provisions referred to in
Section 10 hereof, for carrying purposes only.
Each Underwriter which is a member of The Depository Trust Company
authorizes us, in our discretion, to arrange for delivery of Shares to such
Underwriter and for payment therefor by and to such Underwriter through the
facilities of The Depository Trust Company.
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Each Underwriter, however, authorizes Interstate/Xxxxxxx Xxxx
Corporation, in its discretion, as agent for such Underwriter, to advance
funds, charge current interest rates, or arrange loans for such Underwriter's
account in connection with the purchase or carrying of its Shares held for its
account under this Agreement and for any other of the purposes of this
Agreement, to execute and deliver any notes or other instruments evidencing
such advances or loans, to hold or pledge as security therefor any or all of
its Shares and to give all instructions to the lenders with respect to any such
loans and the proceeds thereof, which instructions the lenders are hereby
authorized to accept. In the event of any such advance or loan, repayment
thereof shall, in the discretion of Interstate/Xxxxxxx Lane Corporation, be
effected prior to the making of any remittance or delivery pursuant to this
Section.
Each Underwriter agrees that, from time to time prior to the
settlement of accounts hereunder, it will furnish to us such information as we
may request in order to determine the number of Shares purchased by it under
the Underwriting Agreement which then remains unsold, and such Underwriter will
upon our request sell to us for the account of any Underwriter as many of such
unsold Shares as we may designate at the public offering price, less all or any
part of the concession to dealers as we may determine. The provisions of
Section 5 hereof shall not be applicable in respect of any such sale.
8. In the event of failure of any Underwriter to tender payment
for Shares as provided under the Underwriting Agreement, we shall have the
right under the provisions thereof to arrange for other persons, who may
include ourselves and any other Underwriters, to purchase the Shares which such
defaulting Underwriter agreed to purchase, and we shall also have the right,
subject to Section 1 hereof, to increase pro rata the original underwriting
obligations of the non-defaulting Underwriters to provide for the purchase of
the Shares which such defaulting Underwriter agreed to purchase, but in neither
case will such arrangements relieve such defaulting Underwriter from liability
for its default.
9. Each Underwriter authorizes Interstate/Xxxxxxx Xxxx
Corporation, in its discretion and for the account of such Underwriter, to
over-allot Firm Shares, and to purchase and sell shares of Common Stock, for
long or short account, in such amounts, at such prices, on such terms and in
such manner as Interstate/Xxxxxxx Lane Corporation may determine; provided,
however, that at no time (except as expressly set forth herein in the event of
default of any Underwriter in carrying out its commitment under this Section)
shall the net commitment of any Underwriter, for either long or short account,
resulting from such over-allotments or such purchases and sales pursuant to
this Section 9 exceed 15% of the number of Firm Shares which such Underwriter
agrees to purchase under the Underwriting Agreement (it being agreed for the
purposes of such calculation that the net commitment for short account of any
Underwriter shall be deemed to be reduced by the maximum number of Optional
Shares which such Underwriter is entitled to purchase under the Underwriting
Agreement). It is understood that the representatives may have made purchases
of securities of the Company for stabilizing purposes prior to the time this
Agreement became binding upon the Underwriters or any particular
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Underwriter with respect to the offering of the Shares, and each Underwriter
agrees that any securities so purchased shall be treated as having been
purchased for the respective accounts of the Underwriters pursuant to the
foregoing authorization. Each Underwriter authorizes Interstate/Xxxxxxx Xxxx
Corporation, in its discretion and for the account of such Underwriter, to
cover any short position, or sell any long position, created by
Interstate/Xxxxxxx Lane Corporation for the account of such Underwriter
pursuant to this Section, in such amounts, at such prices, on such terms and in
such manner as Interstate/Xxxxxxx Xxxx Corporation may determine. Such
purchases and sales, through over- allotments or otherwise, shall be for the
respective accounts of the Underwriters in the same proportions, as nearly as
may be practicable, as the respective underwriting obligations of the
Underwriters; provided, however, that, if any Underwriter defaults in carrying
out its commitment under this Section, the other Underwriters not so defaulting
shall assume its commitment in the same proportions as the respective
underwriting obligations by such other Underwriters, without, however,
relieving such defaulting Underwriter from its liability therefor. Each
Underwriter agrees that it will, upon the request of Interstate/Xxxxxxx Lane
Corporation, take up at cost (but, in the discretion of Interstate/Xxxxxxx Xxxx
Corporation, until the termination of all of the provisions referred to in
Section 10 hereof, for carrying purposes only) shares of Common Stock so
purchased by Interstate/Xxxxxxx Lane Corporation for the account of such
Underwriter, and deliver to Interstate/Xxxxxxx Xxxx Corporation shares of
Common Stock so sold for the account of such Underwriter, through
over-allotment or otherwise. Interstate/Xxxxxxx Lane Corporation shall have
full discretionary power to pay such commissions in connection with such
purchases and sales as it may deem proper and to charge such commissions on
purchases and sales effected by them.
In the event that the Representatives effect any stabilizing purchases
pursuant to this Section, they will notify each Underwriter promptly of the
date and time when the first purchase is effected and the date and time when
such stabilizing is terminated. Each Underwriter agrees that, without the
prior permission of Interstate/Xxxxxxx Xxxx Corporation, it will not effect any
stabilizing purchases. Each Underwriter agrees that, if stabilizing is
effected, it will provide Interstate/Xxxxxxx Lane Corporation with such
information and reports as are required in relation to such stabilization
pursuant to the rules and regulations of the Securities and Exchange Commission
(the "Commission") under the Exchange Act.
10. The provisions of the first sentence of Section 9 hereof will
terminate at the close of business on the 30th full business day after the Firm
Shares are released by us for sale to the public, unless any of such provisions
are terminated at such earlier time as we may determine by notice to that
effect sent to each Underwriter.
11. We may charge against the account of each Underwriter any and
all expenses and transfer taxes incurred by us on such Underwriter's behalf and
as its representatives in connection with the purchase and sale of the Shares
or preparations therefor. All expenses of a general nature incurred by us
shall be borne by the Underwriters in the same proportions as
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the respective underwriting obligations of the Underwriters. In the event of
the failure of any Underwriter to fulfill its obligations hereunder, the
expenses chargeable to such Underwriter pursuant to this Agreement and not
paid, as well as any additional expenses arising from such default, may be
charged against the other Underwriters not so defaulting in the same
proportions as the respective underwriting obligations of such other
Underwriters, without, however, relieving such defaulting Underwriter from its
liability therefor. Our ascertainment of all expenses and apportionment
thereof shall be conclusive.
We shall not be accountable for interest on funds of any of the
Underwriters at any time in our hands, and any such funds may be held by us
unsegregated from our general funds.
12. As compensation for our services to each of the Underwriters
in connection herewith, each Underwriter agrees to pay us an amount equal to
$.____ per Share, in respect of the underwriting obligation of such
Underwriter, and authorizes us, at our election, to charge its account
therefor.
13. Each of the Underwriters acknowledges that it has received
copies of the documents stated in Section l(a) of the Underwriting Agreement to
have been filed with the Commission prior to the date of the Underwriting
Agreement and delivered to us for it. The Registration Statement and
Prospectus (as defined in the Underwriting Agreement) may be further amended or
changed, but no such amendment or change (unless disapproved by us) shall
release any Underwriter hereunder or under the Underwriting Agreement.
14. Each Underwriter represents that it is a registered dealer or
broker under the Exchange Act, that it is a member in good standing of the
NASD, that it is actually engaged in the investment banking or securities
business and that in making sales of Shares it will comply with the Rules of
Fair Practice of the NASD, including, without limitation, Section 24 of Article
III thereof. We will file on behalf of the several Underwriters with the NASD
such required documents and information, if any, which have been furnished to
us for filing pursuant to applicable rules, statements and interpretations of
the NASD.
15. In taking all actions hereunder, except in the performance of
our own obligations hereunder and under the Underwriting Agreement, we shall
act only as representatives of each of the Underwriters. Our authority as
Representatives hereunder and under the Underwriting Agreement may be exercised
by us jointly or by Interstate/Xxxxxxx Xxxx Corporation on behalf of us as
Representatives. Nothing contained herein shall constitute the Underwriters
partners or render any of them liable to make payments otherwise than as herein
provided. If for Federal income tax purposes the Underwriters should be deemed
to constitute a partnership, then each Underwriter elects to be excluded from
the application of Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue
Code, as amended. Each Underwriter authorizes Interstate/Xxxxxxx Lane
Corporation, in its discretion, on behalf of such Underwriter, to execute such
evidence of such election as may be required by the Internal Revenue Service.
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16. We shall be under no liability (except for our own want of
good faith and for obligations expressly assumed by us hereunder) for or in
respect of: the validity or value of, or title to, any shares of Common Stock;
the form of, or the statements contained in, or the validity of, the
Registration Statement, any Preliminary Prospectus (as defined in the
Underwriting Agreement), the Prospectus, any amendment or supplement thereto,
any document which may be incorporated by reference therein, or any letters or
instruments executed by or on behalf of the Company or others; the form or
validity of the Underwriting Agreement or this Agreement; the delivery of the
Shares; the performance by the Company or others of any agreement on its or
their part; the qualification for sale of the Shares or the legality of the
Shares for investment under the laws of any jurisdiction; or any matter in
connection with any of the foregoing; provided, however, that nothing in this
Section shall be deemed to relieve us from any liability imposed by the
Securities Act of 1933, as amended (the "Act"),
17. (a) Each Underwriter agrees to indemnity, hold harmless
and reimburse each other Underwriter and each person, if any, who controls such
other Underwriter within the meaning of Section 15 of the Act, to the extent,
and upon the terms, that such Underwriter agrees to indemnity, hold harmless
and reimburse the Company and certain other persons pursuant to the provisions
of Section 8 of the Underwriting Agreement. This indemnity agreement shall
remain in full force and effect regardless of any investigation made by or on
behalf of such other Underwriter or controlling person or any statement made to
the Commission as to the results thereof.
(b) Each Underwriter agrees to pay upon our request, as
contribution, its proportionate share, based upon the respective underwriting
obligations of the Underwriters, of any losses, claims, damages or liabilities,
joint or several, under the Act or otherwise, paid or incurred by any
Underwriter (including us, individually or as representatives of the
Underwriters) to any person other than an Underwriter (including amounts paid
by an Underwriter as contribution), arising out of or based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus, any
amendment or supplement thereto, any document which may be incorporated by
reference therein, or any other selling or advertising material used with the
consent of Interstate/Xxxxxxx Xxxx Corporation by the Underwriters in
connection with the sale of the Shares, or arising out of or 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 and
(ii) any act or omission to act or any alleged act or omission to act by us,
individually or as Representatives of the Underwriters, or by the Underwriters,
as a group but not individually, in connection with any transaction
contemplated by this Agreement or undertaken in preparing for the purchase,
sale and delivery of the Shares; and each Underwriter will pay such
proportionate share of any legal or other expenses reasonably incurred by us or
with our consent, in connection with investigating or defending any such loss,
claim, damage or liability, or any action in respect thereof. In determining
the amount of any Underwriter's obligation under this paragraph, appropriate
adjustment may be made by us to reflect any
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amounts received by any one or more Underwriters, pursuant to Section 8 of the
Underwriting Agreement or otherwise, in respect of the claim upon which such
obligation is based. In respect of any claim there shall be credited against
the amount of any Underwriter's obligation under this paragraph any loss,
damage, liability or expense which is paid or incurred by such Underwriter as a
result of any such claim being asserted against it, and, if such loss, damage,
liability or expense is paid or incurred by such Underwriter subsequent to any
payment by it pursuant to this paragraph, appropriate provision shall be made
to effect such credit, by refund or otherwise. If any claim to which the
provisions of this paragraph would be applicable is asserted, we may take such
action in connection therewith as we deem necessary or desirable, including
retention of counsel for the Underwriters, and in our discretion separate
counsel for any particular Underwriter or group of Underwriters, and the fees
and disbursements of any counsels retained by us shall be included in the
amounts of the Underwriter's obligations under this paragraph. At our
discretion, we may consent to being named as the representatives of a defendant
class of Underwriters. Any Underwriter may elect to retain at its own expense
its own counsel and, on advice of such counsel and with our consent, may settle
or consent to the settlement of any such claim. We may settle or consent to
the settlement of any such claim, on advice of counsel retained by us, with the
approval of a majority-in-interest of the Underwriters. Whenever any
Underwriter receives notice of the assertion of any claim to which the
provisions of this paragraph would be applicable, such Underwriter will give
prompt notice thereof to us.
Whenever we receive notice of the assertion of any such claim, we will
give prompt notice thereof to each Underwriter. We also will furnish each
Underwriter with periodic reports, at such times as we deem appropriate, as to
the status of any such claim and the action taken by us in connection
therewith. In the event of the failure of any Underwriter to fulfill its
obligations under this paragraph, such obligations may be charged against the
other Underwriters not so defaulting in the same proportions as the respective
underwriting obligations of such other Underwriters, without, however,
relieving such defaulting Underwriter from its liability therefor. In
determining amounts payable pursuant to this paragraph, any loss, claim,
damage, liability or expense paid or incurred, and any amount received, by any
person controlling any Underwriter within the meaning of Section 15 of the Act,
which has been paid or incurred or received by reason of such control
relationship, shall be deemed to have been paid or incurred or received by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
18. As promptly as may be practicable after termination of all of
the provisions referred to in Section 10 hereof and completion of transactions
under Section 9 hereof, any shares of Common Stock held by us for the account
of any Underwriter shall be delivered by us to such Underwriter, and the net
credit or debit balance of each Underwriter shall be paid to it or collected
from it by us, but we may establish such reserves as we may deem advisable
against any expenses or claims not then ascertained. If at such termination
the aggregate number of shares of Common Stock so held by us does not exceed
15% of the aggregate underwriting
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obligation of the Underwriters, we may in our discretion sell such securities
for the accounts of the several Underwriters at such prices, on such terms and
in such manner as we may determine. Any Shares which are held by us for the
account of any Underwriter by reason of a default by a dealer or other
purchaser in respect of the purchase thereof pursuant to a sale under Section 3
hereof shall, in our discretion, be purchased from time to time by the
Underwriters in the same proportions, as nearly as may be practicable, as the
respective numbers of Shares theretofore contracted for sale thereunder to
dealers or other purchasers, as the case may be, for the respective accounts of
the Underwriters, at the net price at which such Shares were contracted for
sale to such dealer or other purchaser, and we are authorized to make
appropriate charges and credits to the respective accounts of the Underwriters
for this purpose. Notwithstanding any distribution and settlement of accounts
hereunder, each Underwriter shall remain liable for its proper proportion of
any transfer tax or any other liability which may be asserted against us or any
one or more of the Underwriters in respect of this Agreement or the
Underwriting Agreement based upon the claim that the Underwriters constitute a
partnership, an association, an unincorporated business or other separate
entity.
19. Any notice to any Underwriter shall be deemed to have been
duly given if mailed, sent by telex or facsimile transmission or delivered in
person to such Underwriter at the address set forth in its Underwriters'
Questionnaire or telex constituting such Underwriters' Questionnaire. Any such
notice shall take effect upon receipt thereof.
20. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
21. This Agreement may be signed in any number of counterparts,
each of which shall be deemed an original, but all of which taken together
shall constitute one and the same instrument.
Please confirm that the foregoing is in accordance with your
understanding by signing a counterpart hereof as indicated below.
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Very truly yours,
Interstate/Xxxxxxx Xxxx Corporation
Xxxxxx Xxxxxx & Company, Inc.
By: Interstate/Xxxxxxx Xxxx Corporation
By: ______________________________
Xxxxxxx X. Xxxxxxxxxxx
Managing Director
Confirmed as of the date hereof:
______________________________
Attorney-in-fact for the
several Underwriters named in
Schedule I to the attached
Underwriting Agreement.
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EAGLE BANCSHARES, INC.
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
UNDERWRITING AGREEMENT
__________________, 0000
Xxxxxxxxxx/Xxxxxxx Xxxx Corporation
Xxxxxx Xxxxxx & Company, Inc.
As Representatives of the several
Underwriters named in Schedule I hereto
c/o Interstate/Xxxxxxx Xxxx Corporation
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Eagle Bancshares, Inc., a Georgia corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to sell to the underwriters
named in Schedule I hereto (the "Underwriters") for whom you are acting as the
representatives (the "Representatives") an aggregate of 1,300,000 shares (the
"Firm Shares") of the Company's common stock, par value $1.00 per share (the
"Common Stock"). The Firm Shares are to be sold to the Underwriters, acting
severally and not jointly, in such amounts as are set forth in Schedule I
hereto opposite the name of such Underwriter. The Company also proposes to
grant to the Underwriters an option to purchase up to an aggregate of 195,000
additional shares of Common Stock as provided for in Section 2 of this
Agreement for the purpose of covering over-allotments (the "Optional Shares").
The Firm Shares and the Optional Shares are collectively referred to herein as
the "Shares."
1. Representations and Warranties of the Company.
(a) The Company represents and warrants to, and agrees with, each
of the Underwriters that:
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(i) The Company meets the requirements for use of Form S-2 under
the Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
with respect to the Shares on Form S-2 (File No. 33-____________) under the
Act; such registration statement (including all financial schedules and
exhibits thereto, all documents incorporated by reference therein pursuant to
Item 12 of Form S-2 under the Act and any information deemed to be a part
thereof pursuant to Rule 430A(b) of the rules and regulations of the Commission
under the Act) and any amendment thereto, each in the form heretofore delivered
to you, and delivered to you for each of the other Underwriters, has been
declared effective by the Commission in such form; and no stop order suspending
the effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated, instituted or, to the knowledge
of the Company, threatened by the Commission (any preliminary prospectus
included in such registration statement, or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission under the Act,
being hereinafter called a "Preliminary Prospectus"; the various parts of such
registration statement, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act and deemed by virtue of Rule 430A under
the Act to be part of the registration statement at the time it was declared
effective, each as amended at the time such part of the registration statement
became effective, being hereinafter called the "Registration Statement"; and
such final prospectus, in the form first filed pursuant to Rule 424(b) under
the Act, being hereinafter called the "Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(iii) The Registration Statement on the date it shall become
effective (the "Effective Date") conformed, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus
conformed, in all material respects, with the requirements of the Act and the
rules and regulations of the Commission thereunder and do not, as of the
Effective Date of the Registration Statement and any amendment thereto and as
of the applicable filing date of the Prospectus and any amendment or supplement
thereto, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and no contract or document of a character required to be described
in the Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration
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15
Statement is not so described or filed as required by the Act; 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 you
expressly for use therein;
(iv) The Company (as hereinafter defined) has not sustained since
the date of the latest unaudited financial statements included in the
Prospectus 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 as a result of any other dispute or court or
governmental action, order or decree or otherwise, except as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there
has not been, and prior to the Time of Delivery (as defined in Section 4
hereof) there will not be, any change in the capital stock, or long-term debt
or short-term debt of the Company, any material adverse change, or any
development involving a prospective material adverse change, in or affecting
the general affairs, management, prospects, financial position, shareholders'
equity or results of operations of the Company, otherwise than as set forth or
contemplated in the Prospectus. Except as disclosed in or contemplated by the
Prospectus, the Company has not incurred or undertaken, and prior to the Time
of Delivery (as defined in Section 4 below) will not incur or undertake, any
material liability or obligation, direct or contingent, not disclosed in the
Registration Statement or Prospectus which is material to the business or
financial condition of the Company; and except as disclosed or contemplated by
the Registration Statement or Prospectus, the Company has not declared or paid,
and prior to the Time of Delivery (as defined in Section 4 hereof) will not
declare or pay, any dividend on its capital stock;
(v) The Company and each of its direct and indirect subsidiaries
other than Xxxxxx Federal Savings and Loan Association (the "Bank") has been
duly organized and is validly existing as a corporation in good standing under
the laws of the jurisdictions in which it is incorporated, with full power and
authority to own, lease or operate its properties and conduct its businesses as
now conducted and described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require such qualification,
except where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, of the Company; the Bank is duly
organized and validly existing as a stock savings and loan association and is
in good standing under the laws of the United States with full power and
authority to own, lease or operate its properties and conduct its business as
now conducted and described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business so as to require such qualification,
except where the failure to so qualify would not have a material adverse effect
on the condition, financial or otherwise, of the Bank; and the Bank is a member
in good standing of the Federal Home Loan Bank of Atlanta, and is
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16
in addition a member in good standing of the Savings Association Insurance Fund
("SAIF") of the Federal Deposit Insurance Corporation ("FDIC") with its deposit
accounts insured by the SAIF up to applicable limits;
(vi) The execution, delivery and performance of this Agreement by
the Company has been duly and validly authorized by all necessary corporate or
other action, and this Agreement, upon its due authorization, execution and
delivery by the Underwriters, constitutes a valid and binding obligation of the
Company, and is enforceable against the Company in accordance with its terms,
subject to bankruptcy laws, insolvency, reorganization and other laws relating
to or affecting creditors' rights and general equitable principles and except
as rights to indemnity and contribution hereunder may otherwise be limited by
federal or state law or public policy;
(vii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued and outstanding shares of capital stock
of the Company have been duly and validly authorized and issued, are fully paid
and nonassessable, are not subject to any preemptive or similar rights and
conform to the description thereof contained in the Prospectus; none of the
outstanding shares of capital stock has been issued in violation of any
preemptive rights (contractual or other); all shares of Common Stock subject to
outstanding options or warrants, if any, have been duly authorized and when
issued in accordance with the terms of the applicable option or warrant, will
be validly issued, fully-paid and non-assessable and will not be issued in
violation of any preemptive rights (contractual or other); except as disclosed
in or contemplated by the Registration Statement or the Prospectus, there are
no outstanding options, warrants or other rights which require the issuance or
sale of, and there is no commitment, plan or arrangement to issue, any share of
capital stock of the Company or any security convertible into or exchangeable
for capital stock of the Company; the Company owns beneficially and of record
all authorized and issued capital stock of the Bank and of Eagle Real Estate
Advisers, Inc. ("EREA"), and the Bank owns beneficially and of record all
authorized and issued capital stock of Eagle Service Corp. ("Eagle Service"),
Prime Eagle Mortgage Corporation ("Prime Eagle") and Eagle A.R.M.S., Inc. (the
capital stock of the Bank, EREA, Eagle Service, Prime Eagle and Eagle A.R.M.S.,
Inc. is hereinafter collectively referred to as the "Subsidiary Stock"); all of
such issued and outstanding shares of Subsidiary Stock have been duly and
validly authorized and issued and are fully-paid and nonassessable, and except
as disclosed in or contemplated by the Registration Statement or the
Prospectus, there are no outstanding options, warrants or other rights which
require the issuance or sale of, and no commitment, plan or arrangement to
issue, any Subsidiary Stock, or any or any security convertible into or
exchangeable for any such stock;
(viii) The unissued Shares to be issued and sold by the Company to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully-paid and nonassessable, will not be subject to any
preemptive or similar rights and will conform to the description of the Common
Stock contained in the Prospectus; and the Underwriters will receive good and
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marketable title to the Shares to be issued and delivered by the Company
hereunder, free and clear of all liens, encumbrances, claims, security
interests, restrictions, stockholders' agreements and voting trusts other than
those that may be or might have been created by the Underwriters;
(ix) The issue and sale of the Shares hereunder, and the compliance
by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated have been duly authorized
by all required corporate or other action on the part of the Company, will not
conflict (with or without the giving of notice or the passage of time or both)
or result in a breach or violation of any of the terms or provisions of,
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon, any property or assets of the Company
pursuant to the terms of (i) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company is a party or
by which the Company is bound or to which any of the property or assets of the
Company is subject, or (ii) any of the provisions of the articles of
incorporation or bylaws or other constituent instrument of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification of or
with any such court or governmental agency or body is or was required, the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except the registration under the
Act of the Shares and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters;
(x) The Company is not, nor with the giving of notice or passage
of time or both would be, (i) in violation of any provision of its articles of
incorporation or bylaws or other constituent instrument, (ii) in default in the
performance of any material obligation, agreement or condition in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, or (iii) in
violation of any judgment, ruling, decree, order, franchise, license or permit
or any statute, rule or regulation of any court or other governmental authority
applicable to the business or properties of the Company, the effect of which
violation would be materially adverse to the Company, including, without
limitation, any rule, regulation or order of, any agreement or understanding
with, or any commitment to, the OTS, the FDIC or any other supervisory or
regulatory authority that could result in any enforcement action against the
Company, any of its subsidiaries or their officers or directors which might
materially and adversely affect the Company's financial condition, results of
operations, business or assets; and the Company is in compliance in all
material respects with the statutes, rules and regulations of any state or
other jurisdiction in which the Company does business;
(xi) The financial statements of the Company, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus, present fairly the financial
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18
condition, results of operations and cash flows of the Company on the bases
stated in the Registration Statement and the Prospectus at the respective dates
or for the respective periods specified; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and data
set forth in the Registration Statement and the Prospectus, including without
limitation, all pro forma and financial information, are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company;
(xii) The Company has good and marketable title to all real and
personal property owned by it, in each case free and clear of all liens,
encumbrances and defects, except such as are set forth or described in the
Prospectus or such as do not materially affect the value of such property; and
any real property and buildings held under lease by the Company are held by the
Company under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company, and no default has occurred or
is continuing under such leases that might result in any material adverse
change in the financial condition, results of operations or cash flows of the
Company;
(xiii) Except as may otherwise be disclosed in the Registration
Statement and Prospectus, the Company is in material compliance with all
federal, state and local laws, rules and regulations relating to environmental
protection, and the Company is not otherwise aware of any material liabilities,
contingent or otherwise, to which it or any of its properties are subject
pursuant to such laws, rules and regulations, the noncompliance with which or
the existence of which would have a material adverse effect on the financial
condition, results of operations, cash flows or business of the Company; the
Preliminary Prospectus and the Prospectus contain or incorporate by reference,
if and to the extent required, appropriate disclosure of the material effects
that compliance with federal, state and local provisions which have been
enacted or adopted, regulating the discharge of materials into the environment
or otherwise relating to the protection of the environment, may have upon the
capital expenditures, earnings and competitive position of the Company and its
subsidiaries, in accordance with Regulation S-K, Item 101(c)(xii) and Item 103,
and consistent with published Commission interpretations thereof; no real
property currently or previously owned or operated by the Company or any direct
or indirect subsidiary of the Company (whether such property is or was used in
operations, held for investment, as real estate owned, in trust or otherwise):
(i) was or is being used for the handling, treatment, storage or disposal of
any Hazardous Substance (as defined below); (ii) has been or is subject to any
release, discharge, spillage or disposal of any Hazardous Substance or soil or
water contamination by any Hazardous Substance; (iii) has or contains any
underground storage tank; or (iv) has any building or other improvement
containing any asbestos or any asbestos-containing materials; which ownership
or operation reasonably may be expected to result in liability to the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole; "Hazardous Substance" shall refer to any
hazardous or toxic
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substance or waste as those terms are defined by any applicable federal or
state law or regulation, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901 et seq., and petroleum, petroleum products and oil;
(xiv) Other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company is a party or of which
any property of the Company is the subject which, if determined adversely to
the Company, would, individually or in the aggregate, have a material adverse
effect upon the financial position, results of operations or cash flows of the
Company; and, to the Company's knowledge, no such proceedings are threatened or
contemplated by any person, including governmental authorities or others;
(xv) Xxxxxx Xxxxxxxx LLP and KPMG Peat Marwick LLP, each of whom
have certified certain financial statements of the Company included in the
Registration Statement and the Prospectus, are, and were during the periods
covered in their respective reports included in the Registration Statement and
Prospectus, independent public accountants with respect to the Company as
required by the Act and the rules and regulations of the Commission thereunder,
and have no interest required to be disclosed in the Registration Statement or
the Prospectus pursuant to Item 10 of Form S-2;
(xvi) The Company's system of internal accounting controls taken as
a whole are, in the opinion of management, sufficient to meet the broad
objectives of internal accounting control insofar as those objectives pertain
to the prevention or detection of errors or irregularities in amounts that
would be material in relation to the Company's financial statements;
(xvii) No labor dispute is known to exist with the Company's
employees or is known to be imminent which could materially adversely affect
the Company;
(xviii) The Company is duly registered as a savings and loan holding
company and it and each of its direct and indirect subsidiaries has all
permits, licenses, franchises and authorizations of governmental or regulatory
authorities ("permits") as are necessary to own its properties and conduct its
businesses in the manner described in the Prospectus unless the failure to have
such permits would not have a material adverse effect on the financial
condition, results of operations or business of the Company; the Company and
each of its direct and indirect subsidiaries has fulfilled and performed in all
respects all of its material obligations with respect to such permits; and the
Company is not aware of any event which allows, or after notice, lapse of time
or both would allow, revocation or termination thereof or would result in any
other material impairment of the rights of the holder of any such permit,
except as set forth in the Prospectus;
(xix) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof (or has
obtained extensions for such filings as permitted by applicable law) and has
paid all taxes shown as owing thereon as and when due,
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or the Company is engaged in bona fide negotiations or discussions with
applicable government agencies with respect to the amount of taxes alleged to
be due which amounts, including interest and penalties, if any, would not have
a material adverse effect on the financial condition or results of operations
(when considered on an annualized basis) of the Company;
(xx) The Company has not (i) taken, and at the Time of Delivery (as
defined in Section 4 hereof) will not have taken, directly or indirectly, any
action to cause or result in, or which has constituted, or might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of any of the Shares; or (ii)
since the filing of the Registration Statement, except for the marketing of the
Shares and the payment to the Underwriters of the compensation contemplated by
Section 2 of this Agreement, (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 person to purchase
any securities of the Company;
(xxi) Neither the Company, nor, to the Company's knowledge, any
director, officer, agent, employee or other person acting on behalf of the
Company, has directly or indirectly: (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity; (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties
or campaigns from corporate funds; (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment;
(xxii) The Shares have been duly authorized for quotation on the
National Association of Security Dealers, Inc. National Market System
("NASDAQ/NMS");
(xxiii) 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, as amended;
(xxiv) All offers and sales of the Company's capital stock prior to
the date hereof were at all relevant times duly registered or exempt from the
registration requirements of the Act, and were duly registered or the subject
of an available exemption from the registration requirements of the applicable
state securities or Blue Sky laws, or, to the extent not duly registered or the
subject of an available exemption under such federal and state securities laws,
the applicable statute of limitations relating to any violation thereof has
expired or any such violations have been effectively waived;
(xxv) The Company has all licenses or other rights to use, patents,
trade secrets, trademarks, service marks, trade names and copyrights
(collectively, "Intangibles") currently
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21
used to conduct its business as described in the Prospectus, and the Company
has not granted any lien or encumbrance on, or any right or license with
respect to any such Intangibles, except as described in the Prospectus or
except as would not have a material adverse effect on the financial condition,
results of operations or business of the Company; there is no claim pending
against the Company with respect to any such Intangibles, and the Company has
not received notice that its use of such Intangibles infringes upon or
conflicts with the rights of any third party; and
(xxvi) Except as set forth or contemplated in the Prospectus, no
holder of any security of the Company has any right, not effectively satisfied
or waived, to require registration of shares of Common Stock or any other
security of the Company.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriters or to counsel for the Underwriters shall be
deemed a representation and warranty by the Company to the Underwriters as to
the matters covered thereby. Whenever used in this Section 1, the term
"Company" shall refer to Eagle Bancshares, Inc. and each of its direct and
indirect subsidiaries, individually and collectively, unless the context
otherwise requires.
2. Purchase and Sale of the Shares. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, (a) the Company agrees to
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price per
share of $_________, the number of Firm Shares to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule I
hereto, and (b) in the event and to the extent that the Underwriters shall
elect to purchase Optional Shares as provided below, the Company agrees to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been made (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 which 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 which all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election all or less than all of the Optional Shares on a pro rata basis,
at the purchase price per share set forth in the paragraph above, for the sole
purpose of covering over-allotments in the sale of the Firm Shares. Any such
election to purchase Optional Shares may be exercised only once and by written
notice from you to the Company, given within a period of 30 calendar days after
the date of this Agreement and setting forth the aggregate number of Optional
Shares to be purchased and the date on which such Optional Shares are to be
delivered, as determined by you
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22
but in no event earlier than the First Time of Delivery (as defined in Section
4 below) or, unless you and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
Notwithstanding the foregoing, the Company shall have the right to
direct the Underwriters, subject to the Underwriters' receipt of approval from
the National Association of Securities Dealers, Inc. ("NASD"), to offer and
sell up to ten percent (10%) of the Firm Shares (the "Directed Shares") (to be
allocated among the Underwriters on a pro rata basis according to the number of
Firm Shares set forth opposite the name of each Underwriter in Schedule I
hereto) to specified Company directors, officers and employees at the per share
public offering price set forth on the cover page of the Prospectus, less the
concession to dealers set forth in Section 3 of the Agreement Among
Underwriters.
3. Offering by the Underwriters. Upon the authorization by you
of the release of the Firm Shares after the Registration Statement becomes
effective, the several Underwriters propose to offer the Firm Shares and the
Optional Shares, if any, for sale upon the terms and conditions set forth in
the Prospectus.
4. Delivery of the Shares. 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 Representatives may request
upon at least 48 hours prior written notice to the Company, shall be delivered
by or on behalf of the Company to you for the account of such Underwriters at
the offices of The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 or at such other place as the parties may agree, against payment by
such Underwriters or on its behalf of the purchase price therefor by certified
or official bank check or checks in next day available funds to the Company,
all at the offices of Interstate/Xxxxxxx Xxxx Corporation, 000 Xxxx Xxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000. The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:00 am, Eastern Time, on the
[SIXTH] [THIRD] full business day after the Registration Statement becomes
effective, or such other time and date as you and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:00 am, Eastern Time, on
the date specified by you in the written notice given by you of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as you 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 the "Second Time of Delivery," and each such time and date for
delivery is herein called a "Time of Delivery." Such certificates will be made
available for checking and packaging by you or on your behalf at least 24 hours
prior to each Time of Delivery at the offices of The Depository Trust Company,
00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or, upon at least one full business
day's prior notice to the Company, at any other specified location in New York,
New York, Atlanta, Georgia or at such other place as the parties may agree.
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5. Agreements of the Company. The Company covenants and agrees
with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the date of
this Agreement, or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to any Time of Delivery which shall
be disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when the Registration
Statement, or any amendment thereto, has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you copies thereof; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or Prospectus,
of the suspension of the qualification of the Shares for offering or sale in
any jurisdiction, or the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain withdrawal of such order at the earliest possible time;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for such reasonable time as may be necessary to complete the
distribution of the Shares; provided, however, 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;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as you may from time to time reasonably request, and, if the
delivery of a Prospectus is required at any time prior to the expiration of
nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in order to
comply with the Act, to notify you and upon your request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
copies as you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will
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correct such statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales of any
of the Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its stockholders as soon as
practicable, but in any event not later than the 45th day after the end of the
fourth fiscal quarter that follows the fiscal quarter that includes the
effective date of the Registration Statement (as defined in Rule 158(c)), a
statement of the Company on a consolidated basis (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of any capital stock
of the Company (other than issuances pursuant to employee and director stock
option plans existing on the date of this Agreement or options outstanding
thereunder) or any security convertible into or exchangeable for capital stock
of the Company, without the prior written consent of Interstate/Xxxxxxx Lane
Corporation;
(f) For so long as the Company is subject to the reporting
requirements of the Securities Exchange Act of 1934, to furnish to its
stockholders as soon as practicable after the end of each fiscal year an annual
report (including a balance sheet and statements of income, shareholders'
equity and cash flow of the Company and its Subsidiaries on a consolidated
basis, certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its Subsidiaries on a consolidated basis for such quarter in
reasonable detail;
(g) During the period of five years from the Effective Date
(provided the Company's Common Stock continues to be publicly-traded), to
furnish and deliver to you as soon as they are available (i) copies of all
reports or other communications (financial or other) furnished to stockholders
and copies of any reports and financial statements furnished to or filed with
the Commission or NASDAQ/NMS or any national securities exchange on which any
class of securities of the Company is listed and (ii) such additional
information concerning the business and financial condition of the Company and
its Subsidiaries, if any, as you may, from time to time, reasonably request
(subject to the Underwriters' obligation to handle any material nonpublic
information provided to them by the Company in a confidential manner and in
accordance with their obligations under applicable federal securities laws);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds;" and
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25
(i) To use its reasonable best efforts to maintain the inclusion
of the Common Stock on the NASDAQ/NMS (or on a national securities exchange)
for a period of five years after the Effective Date (provided the Company's
Common Stock continues to be publicly-traded).
6. Expenses. The Company covenants and agrees with the several
Underwriters that it will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and any Subsidiary's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of preparing, printing
or producing any Agreement Among Underwriters, this Agreement, the Blue Sky
Memorandum and any other documents in connection with the offering, purchase,
sale and delivery of the Shares; (iii) all expenses in connection with the
qualification of the Shares for offering and sale under state securities laws
as provided in Section 5(b) hereof, including the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the preparation and distribution of Blue
Sky Memoranda, not to exceed $__________; (iv) the filing fees incident to
securing any required review by the NASD of the terms of the sale of the Shares
and other costs, fees and expenses incident to the listing of the Shares on the
NASDAQ/NMS; (v) the cost of preparing stock certificates; (vi) the cost and
charges of any transfer agent or registrar; (vii) all stock transfer taxes, if
any, incident to the sale and delivery of the Shares to the Underwriters;
(viii) the travel and lodging expenses of employees of the Company who
participate in the advertising and marketing of the Shares; and (ix) all other
costs and expenses incident to the performance of their obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood that except as provided in this Section, Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, travel and out-of-pocket expenses, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
7. Conditions to the Underwriters Obligations. The obligations
of the Underwriters hereunder, as to the Shares to be delivered at each Time of
Delivery, shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of each Time of Delivery, true and correct, the condition that the
Company shall have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) The Registration Statement shall have been declared effective;
the Prospectus shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been
13
26
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Holland & Knight, counsel for the Underwriters, shall have
furnished to you such opinion or opinions, dated each Time of Delivery, with
respect to the incorporation of the Company, the validity of the Shares being
delivered at such Time of Delivery, the Registration Statement, the Prospectus,
and other related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Long, Xxxxxxxx & Xxxxxx, counsel for the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in form
and substance satisfactory to you and your counsel, and substantially in the
form that is attached hereto as Exhibit A;
(d) On the date hereof and on the effective date of each filed
post-effective amendment to the Registration Statement and also at each Time of
Delivery, Xxxxxx Xxxxxxxx LLP and KPMG Peat Marwick LLP shall have furnished to
you a comfort letter or letters, dated the respective date of delivery thereof,
and otherwise in form and substance satisfactory to you and your counsel
stating that they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the Act and of the rules and
regulations of the Commission thereunder, that they have no interest required
to be disclosed in the Registration Statement or the Prospectus pursuant to
Item 10 of Form S-2, and to the effect that:
(i) They are, and were during the periods covered in
their report(s) included in the Registration Statement and the
Prospectus, independent certified public accountants with respect to
the Company and its direct and indirect subsidiaries within the
meaning of the Act and the rules and regulations of the Commission
thereunder;
(ii) In their opinion, the consolidated financial
statements audited by them and the related schedules included in the
Prospectus or the Registration Statement, comply as to form in all
material respects with the applicable accounting requirements of the
Act, the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission thereunder;
(iii) On the basis of limited procedures, but not an audit
in accordance with generally accepted auditing standards, consisting
of a reading of the unaudited financial statements of the Company and
related notes included in the Registration Statement and Prospectus,
the latest available interim financial statements of the Company,
inspection of the minute books of the Company since the date of the
latest audited financial statements included in the Prospectus,
inquiries of officials of the Company responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
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27
(A) the unaudited financial data of the Company
and its subsidiaries included in the Prospectus or
Registration Statement do not comply as to form in all
material respects with the applicable accounting requirements
of the Act, the Exchange Act and the rules and regulations of
the Commission thereunder or are not presented on a basis
substantially consistent with that of the audited financial
statements included in the Prospectus or Registration
Statement;
(B) the unaudited amounts set forth under the
caption "Selected Financial Data" in the Prospectus were not
determined on a basis substantially consistent with that used
in determining the corresponding amounts in the audited
consolidated financial statements included in, or incorporated
by reference into, the Registration Statement and the
Prospectus;
(C) as of a specified date not more than five
days prior to the Time of Delivery, there have been any
changes in the capital stock or any increase in the long-term
debt of the Company, in each case as compared with amounts
shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; or
(D) for the period from September 30, 1995 to the
specified date referred to in clause (C) above there were
decreases in the total or per share amounts of net income or
increases in the rates of charge offs or allowances for loan
losses, in each case as compared with the comparable period of
the preceding year, except in each case for decreases or
increases which the Prospectus discloses have occurred or may
occur or which are described in such letter;
(iv) In addition to the audit referred to in their
report(s) included in the Prospectus and on the basis of certain other
limited procedures, including an inspection of minute books of the
Company since the date of the latest audited financial statements
included in the Prospectus, inquiries of officials of the Company
responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, they have
carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Underwriters, which are derived from the accounting
records of the Company or accounting records subject to its system of
internal accounting controls, which appear in the Prospectus, or in
exhibits and schedules to the Registration Statement, specified by the
Underwriters, and have compared certain of such amounts, percentages
and financial information with these accounting records of the Company
and have found them to be in agreement;
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28
In the event that the letters to be delivered referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that the Underwriters shall have reasonably
determined, after discussions with officers of the Company responsible for
financial and accounting matters and with Xxxxxx Xxxxxxxx LLP, that such
changes, decreases or increases as are set forth in such letters do not reflect
a material adverse change in the stockholders' equity or long-term debt of the
Company as compared with the amounts shown in the latest consolidated balance
sheets of the Company included in the Prospectus, or a material adverse change
in total revenues or net income, of the Company, in each case as compared with
the corresponding period of the prior year;
(e) No Underwriter shall have advised the Company that the
Registration Statement, Preliminary Prospectus or the Prospectus, or any
amendment or any supplement thereto, contains an untrue statement of fact
which, in your reasonable judgment, is material, or omits to state a fact
which, in your reasonable judgment, is material and is required to be stated
therein or necessary to make the statements therein not misleading and the
Company shall not have cured such untrue statement of fact or stated a
statement of fact required to be stated therein;
(f) On or after the date hereof there shall not have occurred any
of the following: (i) a general suspension or material limitation in trading in
securities on the New York Stock Exchange or the NASDAQ/NMS, or limitation on
prices for securities on any such exchange or NASDAQ/NMS other than imposition
of so called circuit breakers; (ii) a general moratorium on commercial banking
activities in New York or Georgia declared by either Federal or State
authorities; or (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (f) in your
reasonable judgment makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated by the Prospectus;
(g) The Shares to be sold by the Company at such Time of Delivery
shall have been duly authorized for quotation on the NASDAQ/NMS;
(h) The NASD, upon review of the terms of the public offering of
the Shares, shall not have objected to such offering, such terms or the
Underwriters' participation in such offering;
(i) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery mutually agreed upon certificates of officers of
the Company satisfactory to you and your counsel as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of
Delivery, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to such Time of Delivery, as to the
matters set forth in subsection (a) of this Section, and as to such other
matters as you may reasonably request;
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29
(j) At each Time of Delivery, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may have
reasonably requested prior to that Time of Delivery for the purpose of
reasonably enabling them to pass upon the issuance and sale of the Shares as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Shares as herein contemplated
shall be reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters; and
(k) The Company shall have furnished or caused to be furnished to
you at or prior to the First Time of Delivery lock-up agreements in form and
scope satisfactory to the Underwriters and their counsel from all stockholders,
executive officers and directors of the Company as of the date hereof.
8. (a) The Company agrees to indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or any such amendment or supplement thereto, in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use therein; and provided further, that
as to any Preliminary Prospectus this indemnity agreement shall not inure to
the benefit of any Underwriter on account of any loss, claim, damage, liability
or action arising from the sale of the Shares to any person by the Underwriter
if that Underwriter failed to send or give a copy of the Prospectus, as the
same may be amended or supplemented, to that person within the time required by
the Act, and the untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact in such
Preliminary Prospectus was corrected in the Prospectus, unless such failure
resulted from noncompliance by the Company with Section 5(c).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
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30
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with information furnished to the Company by such Underwriter
through you expressly for use therein, and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (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 an
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. No such action
shall be settled by the indemnified party without the consent of the
indemnifying party, which consent shall not be unreasonably withheld. 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), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(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 each party 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 party in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits
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31
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Shares purchased under this Agreement (before deducting
expenses) received by the Company bear to the total underwriting' discounts and
commissions received by the Underwriters with respect to the Shares purchased
under this Agreement, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company 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 entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (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), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(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 Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company, each
prospective director of the Company named in the Registration Statement, and to
each other person, if any, who controls the Company within the meaning of the
Act.
9. Default of Underwriter. (a) If any Underwriter shall default
in its obligation to purchase the Shares which it has agreed to purchase
hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or parties to purchase such Shares on the terms contained herein.
If within thirty-six hours after such default by any Underwriter you do not
arrange for the purchase of such Shares, then the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties satisfactory to
19
32
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 such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with the 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 or 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 all
the 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;
provided, however, that nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the 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 exceeds one-eleventh of the aggregate number
of all the Shares to be purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Shares of a defaulting Underwriter or
Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Company to
sell the Optional Shares) shall thereupon terminate, without liability on the
part of any non-defaulting Underwriter or the Company, except for the expenses
to be borne by the Company and the Underwriters as provided in Section 6 hereof
and the indemnity and contribution agreements in Section 8 hereof; provided,
however, that nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. Survival. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the
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33
Company or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Shares.
11. Effectiveness. If this Agreement shall be terminated pursuant
to Section 9 hereof, the Company shall not then be under any liability to any
Underwriter except as provided in Section 6 and Section 8 hereof, but, if the
Shares are not delivered by or on behalf of the Company as provided herein for
the reason that the Company and Xxxxxx Xxxxxxxx LLP do not comply with or
otherwise satisfy the conditions imposed upon them to perform pursuant to
Section 7 hereof and such nonperformance continues for over a period of twelve
(12) calendar months, the Company will, at the request of the Underwriters,
reimburse the Underwriters through you for all reasonable out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel not to exceed $________________, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
Shares not so delivered, but the Company shall then be under no further
liability to any Underwriting in respect of the Shares not so delivered except
as provided in Section 6 and Section 8 hereof.
12. Notices. (a) In all dealings hereunder, you shall act on
behalf of each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf of any
Underwriter made or given by you jointly or by Interstate/Xxxxxxx Lane
Corporation on behalf of you as the Representatives.
(b) All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or sent by
mail, telex, or facsimile transmission to you as the representative in care of
Interstate/Xxxxxxx Xxxx Corporation, 000 Xxxx Xxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Senior Vice President - Syndicate Department; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: President; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. Miscellaneous. (a) This Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters and the Company and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Shares from any Underwriter shall be
deemed a successor or assign merely by reason of such purchase.
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34
(b) Time shall be of the essence of this Agreement. As used
herein, the term "business day" shall mean any day when the Commission's office
in Washington, D.C. is open for business.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
(d) 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, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on
behalf of each of the Underwriters is pursuant to the authority set forth in a
form of Agreement Among Underwriters, the form of which shall be submitted to
the Company for examination, upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
Eagle Bancshares, Inc.
By:______________________________
Xxxxxx X. Xxxxxxx, Xx.
Chairman of the Board of Directors
and Chief Executive Officer
Accepted as of the date hereof at
Atlanta, Georgia:
Interstate/Xxxxxxx Xxxx Corporation
Xxxxxx Xxxxxx & Company, Inc.
By: Interstate/Xxxxxxx Xxxx Corporation
By:______________________________
Xxxxxxx X. Xxxxxxxxxxx
Managing Director
On behalf of each of the Underwriters
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SCHEDULE I
UNDERWRITERS NUMBER OF FIRM NUMBER OF OPTIONAL
------------ -------------- ------------------
SHARES TO BE SHARES TO BE
------------ ------------
PURCHASED PURCHASED IF
------------
--------- MAXIMUM OPTION
--------------
EXERCISED
---------
Interstate/Xxxxxxx Xxxx
Corporation
Xxxxxx Xxxxxx &
Company, Inc.
TOTAL
36
EXHIBIT A
[FORM OF LONG, XXXXXXXX & XXXXXX OPINION TO COME]
37
1,300,000 SHARES(1)
EAGLE BANCSHARES, INC.
COMMON STOCK
($1.00 PAR VALUE PER SHARE)
SELECTED DEALER AGREEMENT
__________________, 1996
Ladies and Gentlemen:
The underwriters named in the enclosed prospectus, on whose behalf we are
acting as representatives, have severally agreed to purchase from Eagle
Bancshares, Inc., a Georgia corporation (the "Company"), an aggregate of
1,300,000 shares of the Common Stock (the "Shares") of the Company, as set
forth in the enclosed prospectus and subject to the terms of the underwriting
agreement referred to therein. The Shares are described in the prospectus,
additional copies of which will be supplied in reasonable quantities upon
request to us.
1. Offering to Dealers. One or more of the several underwriters
acting through us are severally offering a portion of the Shares to certain
dealers (the "Dealers") as principals, at the public offering price thereof set
forth on the cover of the Prospectus less a concession of $.___ per Share. The
offering of Shares to Dealers may be made on the basis of reservations or
allotments against subscription. We are advising you by telegram of the method
and terms of the offering. Acceptances of any reserved Shares received at the
office of Interstate/Xxxxxxx Lane Corporation, 000 Xxxx Xxxxx Xxxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000, after the time specified therefor in the telegram, and
any subscriptions for additional Shares, will be subject to rejection in whole
or in part. Subscription books may be closed by us at any time without notice,
and the right is reserved to reject any subscription in whole or in part.
2. Offering by Dealers. Upon receipt of the aforementioned
telegram, the Shares purchased by you may be reoffered to the public in
conformity with the terms of offering set forth in the Prospectus. You may, in
accordance with the rules of the National Association of Securities Dealers,
Inc. (the "NASD"), allow a discount from the public offering price of not more
than $.____ per Share with respect to Shares sold by you to (i) certain dealers
that are members of the NASD and that agree to comply with the provisions of
Section 24 of Article III of the Rules of Fair Practice of the NASD and (ii)
foreign dealers or institutions ineligible for
____________________
1 Plus an option to purchase up to 195,000 shares to cover
overallotments.
1
38
membership in the NASD that agree (x) not to resell Shares (A) to purchasers
in, or to persons who are nationals of, the United States of America or (B)
when there is a public demand for the Shares, to persons specified as those to
whom members of the NASD participating in a distribution may not sell, and (y)
to comply, as though such foreign dealer or institution were a member of the
NASD, with Sections 8, 24, 25 to the extent applicable to foreign nonmember
brokers or dealers, and 36 of such Article.
Neither you nor any other person is, or has been, authorized by the
Company or us to give any information or make any representation in connection
with the sale of the Shares other than those obtained in the prospectus.
It is assumed that the Shares will be effectively placed for
investment. In the event that, during the term of this Agreement, we shall
purchase or contract to purchase any Shares purchased by you hereunder, we may,
at our election, either (a) require you to repurchase such Shares at a price
equal to the total cost of such purchase by us, including brokerage
commissions, if any, and transfer taxes on the recovery, or (b) charge you with
and collect from you an amount equal to the selling concession originally
allowed you with respect to the Shares so purchased by us.
3. Payment and Delivery. Payment for the Shares which you shall
have agreed to purchase hereunder shall be made by you at such time and place
as we shall direct by certified or bank cashier's check payable in next-day
available funds to our order, against delivery of such Shares. Additional
Shares confined to you shall be delivered on such date or dates as we shall
advise you.
4. Blue Sky Matters. We and the underwriters shall have no
obligation or responsibility with respect to the right of any dealer to sell
the Shares in any jurisdiction, notwithstanding any information which may be
furnished as to the jurisdictions under the securities laws of which it is
believed the Shares may be sold. In compliance with the General Business Law
of New York, it will be necessary for you to file a Further State Notice
respecting the Shares, in the form required by said Law, prior to offering any
of the Shares in such state.
5. Termination. This Agreement shall terminate thirty (30) days
after the initial public offering, but may be extended for a period or periods
not exceeding in the aggregate fifteen (15) days as we may determine. We may
terminate this Agreement at any time without prior notice. Notwithstanding
termination of this Agreement, you shall remain liable for your proportion of
any transfer tax or other liability which may be asserted or assessed against
us or any of the Dealers based upon the claim that the Dealers or any of them
constitute a partnership, an association, an unincorporated business or other
separate entity.
2
39
6. Obligations and Position of Dealers. Your acceptance hereof
will constitute an obligation on your part to purchase, upon the terms and
conditions hereof, the aggregate amount of Shares reserved for and accepted by
you and to perform and observe all the terms and conditions hereof.
You are not authorized to act as our agent or as agent for any of the
underwriters in offering Shares to the public or otherwise. Nothing contained
herein shall constitute the Dealers an association, or partners with us, or any
of the underwriters, or with each other.
You agree that at any time or times prior to the termination of this
Agreement you will, upon our request, report to us the number of Shares
purchased by this Agreement which then remain unsold by you and will, upon our
request at such time or times, sell to us for our account such number of such
unsold shares as we may designate, at the public offering price less an amount
to be determined by us, not in excess of the concession allowed you.
We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the offering or arising
hereunder. We shall be under no liability to you, except for our own want of
good faith obligations assumed in this Agreement, and any liabilities arising
under the Securities Act of 1933, as amended. No obligation not expressly
assumed by us in this Agreement shall be implied hereby or inferred herefrom.
7. Notices. All communications from you should be addressed to
us at the office of Interstate/Xxxxxxx Xxxx Corporation, 000 Xxxx Xxxxx Xxxxx
Xxxx, Xxxxxxx, Xxxxxxx 00000. Any notice from us to you shall be deemed to
have been duly given if mailed or telegraphed to you at the address to which
this letter is mailed.
Please confirm this Agreement by signing and returning at once the
duplicate copy of the letter enclosed herewith.
Very truly yours,
Interstate/Xxxxxxx Lane Corporation
Xxxxxx Xxxxxx & Company, Inc.
By: Interstate/Xxxxxxx Lane Corporation
By:______________________________
Xxxxxxx X. Xxxxxxxxxxx
Managing Director
3
00
Xxxxxxxxxx/Xxxxxxx Xxxx Corporation
Xxxxxx Xxxxxx & Company, Inc.
As Representatives of the several Underwriters
c/o Interstate/Xxxxxxx Lane Corporation
000 Xxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentleman:
The undersigned confirms its agreement to purchase shares of the
Common Stock of Eagle Bancshares, Inc., subject to the terms and conditions of
the foregoing agreement, and agrees to take up and pay for such shares at the
price and upon the terms and conditions stated in said agreement. The
undersigned hereby acknowledges receipt of the Prospectus relating to the
Shares and confirms that in agreeing to purchase the Shares it has relied on
said Prospectus and on no other statement whatsoever, written or oral. The
undersigned represents that it has complied and will comply with the
requirements of Rule 15c2-8 under the Securities Exchange Act of 1934, as
amended. The undersigned confirms that it is (i) a member of the National
Association of Securities Dealers, Inc. and agrees to comply with the
provisions of Section 24 of Article III of the Rules of Fair Practice of such
Association or (ii) a foreign dealer or institution ineligible for membership
in such Association that hereby agrees (x) not to resell shares (A) to
purchasers in, or to persons who are nationals of, the United States of America
or (B) when there is a public demand for the Shares, to persons specified as
those to whom members of such Association participating in a distribution may
not sell, and (y) to comply, as though it were a member of such Association,
with Sections 8, 24, 25 (to the extent applicable to foreign non-member brokers
or dealers) and 36 of such Article.
Dated: __________, 1996
______________________________
[Name of Firm]
By:___________________________
Title:________________________
