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EXHIBIT 1.1
GEORGIA-CAROLINA BANCSHARES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
______________, 0000
XXXXXXXXXX/XXXXXXX XXXX CORPORATION
As the Representative of the several
Underwriters named in Schedule I hereto,
c/o Interstate/Xxxxxxx Lane Corporation
IJL Financial Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
Georgia-Carolina Bancshares, Inc., a Georgia corporation (the
"Company") proposes, subject to the terms and conditions stated herein, to issue
and sell to the underwriters named in Schedule I hereto (the "Underwriters") (i)
an aggregate of 430,000 shares of common stock, $.001 par value (the "Common
Stock"), of the Company (the "Firm Shares"), (ii) up to 310,000 shares of Common
Stock only to the extent of the number of such shares that are withdrawn by
persons who subscribed to the best efforts offering conducted by the Company
(the "Best Efforts Offering") from February 19, 1998 through August 18, 1998
(the "Standby Shares"), and (iii) at the election of the Underwriters, up to
111,000 additional shares of Common Stock (the "Optional Shares") solely to
cover overallotments, if any; provided, however, that the total number of
Optional Shares shall not exceed an amount equal to 15% of the total number of
Firm Shares and Standby Shares purchased by the Underwriters (the Firm Shares,
the Standby Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof are collectively referred to as the
"Shares").
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with each of the Underwriters that:
(a) A registration statement on Form SB-2 (File No. 333-62493)
(the "Registration Statement") with respect to the Shares has been
filed by the Company with the U.S. Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the
"Act"); the Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits
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thereto but including all documents incorporated by reference in the
prospectus contained therein, delivered to you for each of the
Underwriters, have been declared effective by the Commission in such
form; other than a registration statement increasing the size of the
offering, filed pursuant to Rule 462(b) under the Act which became
effective upon filing (the "Rule 462(b) Registration Statement"); no
other document with respect to the Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration
Statement has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or
threatened by the Commission (any preliminary prospectus included in
the Registration Statement or filed with the Commission pursuant to
Rule 424 of the Rules and Regulations of the Commission under the Act,
being hereinafter called a "Preliminary Prospectus," the various parts
of such Registration Statement and the Rule 462(b) Registration
Statement, including all exhibits thereto and the information contained
in the form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) of this
Agreement and deemed by virtue of Rule 430(A) 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 became effective, being herein
called collectively the "Registration Statement," and the final
prospectus, in the form first filed pursuant to Rule 424(b), being
hereinafter called the "Prospectus."
(b) No order preventing or suspending the use of any
Prospectus has been issued and no proceeding for that purpose has been
instituted or threatened by the Commission or the securities authority
of any state or other jurisdiction. No stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceeding for that purpose has been instituted or
threatened or, to the best knowledge of the Company, contemplated by
the Commission or the securities authority of any state or other
jurisdiction.
(c) Each Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto
complied when so filed in all material respects with the requirements
applicable to it under the Act and the rules and regulations
promulgated thereunder and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Securities Exchange Act
of 1934, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter
through the Representative expressly for use therein. When the
Registration Statement or any
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amendment thereto was declared effective, and at each Time of Delivery
(as hereinafter defined), it (i) contained all statements required to
be stated therein in accordance with, and complied or will comply in
all material respects with the requirements of the Act and the rules
and regulations of the Commission thereunder and (ii) did not include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading. When the
Prospectus or any amendment or supplement thereto is filed with the
Commission pursuant to Rule 424(b) (or, if the Prospectus or such
amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such
amendment or supplement to the Prospectus was or is declared effective)
and at each Time of Delivery, the Prospectus, as amended or
supplemented at any such time (i) contained or will contain all
statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements
of, the Act and the rules and regulations of the Commission thereunder
and (ii) did not or will not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (c) do
not apply to statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter.
(d) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings or contracts
and other documents that are required to be so described are accurate
in all material respects and fairly present the information required to
be shown; and there are no statutes or legal or governmental
proceedings required to be described in the Registration Statement or
the Prospectus that are not described as required and no contracts or
documents of a character that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described and filed as
required.
(e) Each of the Company and its subsidiary has been duly
incorporated, is validly existing as a corporation under the laws of
its jurisdiction of incorporation and has full power and authority to
own or lease its properties and conduct its business as described in
the Prospectus. The Company has full power and authority to enter into
this Agreement and to perform its obligations hereunder. Each of the
Company and its subsidiary is duly qualified to transact business as a
foreign corporation 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
financial position, results of operations or business of the Company
and its subsidiary.
(f) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and
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conform to the description of the Common Stock contained in the
Prospectus. None of the issued shares of capital stock of the Company
or its subsidiary has been issued or is owned or held in violation of
any preemptive rights of shareholders, and no person or entity
(including any holder of outstanding shares of capital stock of the
Company or its subsidiary) has any preemptive or other rights to
subscribe for any of the Shares.
(g) All of the issued shares of capital stock of the Company's
subsidiary have been duly authorized and validly issued, are fully
paid, and nonassessable and are owned beneficially by the Company free
and clear of all liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting trusts,
equities or claims of any nature whatsoever. Other than First Bank of
Georgia, the Company does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any
ownership interest in any partnership, joint venture or other
association.
(h) Except as disclosed in the Prospectus, there are no
outstanding (i) securities or obligations of the Company or its
subsidiary convertible into or exchangeable for any capital stock of
the Company or its subsidiary, (ii) warrants, rights or options to
subscribe for or purchase from the Company or its subsidiary any such
capital stock or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company or its subsidiary to
issue any shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(i) Since the date of the most recent financial statements
included in the Prospectus, neither the Company nor its subsidiary has
sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as disclosed in or contemplated by the
Prospectus.
(j) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) neither the
Company nor its subsidiary has incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in the
ordinary course of business, that are material to the Company and its
subsidiary, (ii) the Company has not purchased any of its outstanding
capital stock or declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock, (iii) there has not been
any change in the capital stock, long-term debt or short-term debt of
the Company or its subsidiary, and (iv) there has not been any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the financial position, results of
operations or business of the Company and its subsidiary, in each case
other than as disclosed in or contemplated by the Prospectus.
(k) The Shares have been duly authorized and, when issued and
delivered against payment therefor as provided therein, will be validly
issued and fully paid and nonassessable and will conform to the
description of the Common Stock contained in the
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Prospectus; and the certificates evidencing the Shares will comply with
all applicable requirements of Georgia law.
(l) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement (or any
such right has been effectively waived) or any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(m) Neither the Company nor its subsidiary is, or (with or
without the giving of notice or passage of time or both), would be in
violation of its Articles of Incorporation or Bylaws or in default
under any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or its subsidiary is
a party or to which any of their respective properties or assets are
subject that is material to the Company and its subsidiary, when taken
as a whole.
(n) The issue and sale of the Shares and the performance of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other
material agreement or instrument to which the Company or its subsidiary
is a party or to which any of their respective properties or assets is
subject, nor will such action conflict with or violate any provision of
the Articles of Incorporation or Bylaws of the Company or its
subsidiary or any statute, rule or regulation or any order, judgment or
decree of any court or governmental agency or body having jurisdiction
over the Company or its subsidiary or any of their respective
properties or assets.
(o) The Company and its subsidiary have good and marketable
title in fee simple to all real property, if any, and good title to all
personal property owned by them, in each case free and clear of all
liens, security interests, pledges, charges, encumbrances, mortgages
and defects, except such as are disclosed in the Prospectus or such as
do not materially and adversely interfere with the operations of the
Company and its subsidiary; and any real property and buildings held
under lease by the Company or its subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as are
disclosed in the Prospectus or are not material and do not interfere
with the operations of the Company or its subsidiary.
(p) No consent, approval, authorization, order or declaration
of or from, or registration, qualification or filing with, any court,
governmental agency or body or self-regulatory organization is required
for the issue and sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except the registration of
the Shares under the Act and such as may be required under state
securities
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or blue sky laws in connection with the offer, sale and distribution of
the Shares by the Underwriters.
(q) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or threatened (or any basis therefor) in which
the Company or its subsidiary is a party or of which any of their
respective properties or assets are the subject which, if determined
adversely to the Company or its subsidiary, would individually or in
the aggregate have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiary.
(r) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating
to or affecting the enforcement of creditors' rights generally and to
general equitable principles, and except as the enforceability of
rights to indemnity and contribution under this Agreement may be
limited under applicable securities laws or the public policy
underlying such laws.
(s) Neither the Company nor any of its officers, directors or
affiliates has (i) taken, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares or (ii) since the filing of the Registration Statement (A) sold,
bid for, purchased or paid anyone any compensation for soliciting
purchases of, the Shares or (B) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company.
(t) The Company has obtained for the benefit of the Company
and the Underwriters from each of its directors and officers a written
agreement that for a period of 180 days from the date of the Prospectus
such director or officer will not, without your prior written consent,
offer, pledge, sell, contract to sell, grant any option for the sale
of, or otherwise dispose of (or announce any offer, pledge, sale, grant
of an option to purchase or other disposition), directly or indirectly,
any shares of Common Stock or securities convertible into, or
exercisable or exchangeable for, shares of Common Stock.
(u) The Company's subsidiary is not currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distributions on its subsidiary's capital stock, from
repaying to the Company any loans or advances to its subsidiary or from
transferring its subsidiary's property or assets to the Company, except
as disclosed in the Prospectus.
(v) The Company and its subsidiary have filed all material
foreign, federal, state and local tax returns that are required to be
filed by them and have paid all taxes
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shown as due on such returns as well as all other taxes, assessments
and governmental charges that are due and payable; and no deficiency
with respect to any such return has been assessed or proposed in any
material respects.
(w) The Company is not, nor will it become as a result of
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(x) The Company has complied in all material respects with its
obligations under the Escrow Agreement, dated January 22, 1998 and
amended as of the date hereof (the "Escrow Agreement"), by and between
the Company and The Bankers Bank (the "Escrow Agent") and is not aware
of any failure by the Escrow Agent to comply in all material respects
with its obligations under the Escrow Agreement.
2. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
herein set forth: (a) the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price of $12.4875 per share, the number
of Firm Shares set opposite the name of such Underwriter in Schedule I hereto;
(b) the Company agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agree, severally and not jointly, to purchase from the
Company, at a purchase price of $12.69 per share, the number of Standby Shares
set opposite the name of such Underwriter in Schedule I hereto; and (c) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, the Company agrees to issue and to
sell to each of the Underwriters, and each of the Underwriters agree, severally
and not jointly, to purchase from the Company, at 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 exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares that such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of the Optional Shares that all of
the Underwriters are entitled to purchase hereunder. In addition, the Company
shall pay the Representative a standby underwriting fee in the amount of
Sixty-Two Thousand Seven Hundred Seventy-Five Dollars ($62,775).
The Company hereby grants to the Underwriters the right to purchase at
its election in whole or in part from time to time up to 111,000 Optional
Shares, at the purchase price per share set forth in clause (a) in the paragraph
above for the sole purpose of covering over-allotments in the sale of Firm
Shares and the Standby Shares. Any such election to purchase Optional Shares may
be exercised by written notice from you to the Company, given from time to time
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as hereinafter defined) 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. In the event you elect to
purchase all or a portion of the Optional Shares, the Company agrees to furnish
or cause to be furnished to you the certificates, letters and opinions, and to
satisfy all conditions set forth in Section 7 hereof at each Subsequent Time of
Delivery (as hereinafter defined).
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3. OFFERING BY THE UNDERWRITERS. Upon the authorization by you of the
release of the Shares, the several Underwriters propose to offer the Shares for
sale upon the terms and conditions disclosed in the Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as the Representative may request upon at least 48
hours prior notice to the Company shall be delivered by or on behalf of the
Company to you for your account against payment by you of the purchase price
therefor by official bank check or checks (payable in same day funds) drawn on a
Charlotte, North Carolina bank, payable to the order of the Company. The closing
of the sale and purchase of the Shares shall be held at the offices of Xxxxx &
Xxx Xxxxx, PLLC, Charlotte, North Carolina. The time and date of such delivery
and payment shall be, with respect to the Firm Shares and the Standby Shares, at
10:00 a.m., Charlotte time, on the fourth full business day after the execution
of this Agreement or at such other time and date as you and the Company may
agree upon in writing, and, with respect to the Optional Shares, at 10:00 a.m.,
Charlotte time, on the date specified by you in the written notice given by you
of the Underwriters' election to purchase all or part of such Optional Shares,
or at such other time and date as you and the Company may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery," such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called a "Subsequent Time of
Delivery," and each such time and date for delivery is herein called a "Time of
Delivery." The Company will make such certificates available for checking and
packaging at least 24 hours prior to each Time of Delivery at your office at the
address set forth above or such other location designated by you to the Company.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriter:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable
and if consented to by you, subparagraph (4)) of Rule 424(b) not later
than the earlier of (i) the second business day following the execution
and delivery of this Agreement or (ii) the 15th business day after the
date on which the Registration Statement is declared effective. The
Company will advise you promptly of any such filing pursuant to Rule
424(b).
(b) The Company will not file with the Commission the
Prospectus or the amendment referred to in the second sentence of
Section l(a) hereof, any amendment or supplement to the Prospectus or
any amendment to the Registration Statement unless you have received a
reasonable period of time to review any such proposed amendment or
supplement and consented to the filing thereof and will use its best
efforts to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible. Upon the request of the
Representative or counsel for the Representative, the Company will
promptly prepare and file with the Commission, in accordance with the
rules and regulations of the Commission, any amendments to the
Registration Statement or amendments or supplements to the Prospectus
that may be necessary or advisable in
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connection with the distribution of the Shares by the Underwriters and
will use its best efforts to cause any such amendment to the
Registration Statement to be declared effective as promptly as
possible. If required, the Company will file any amendment or
supplement to the Prospectus with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. The
Company will advise the Representative, promptly after receiving notice
thereof, of the time when the Registration Statement or any amendment
thereto has been filed or declared effective or the Prospectus or any
amendment or supplement thereto has been filed and will provide
evidence to the Representative of each such filing or effectiveness.
(c) The Company will advise you promptly after receiving
notice or obtaining knowledge of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or any part thereof or any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, (ii) the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (iii) any
request made by the Commission or any securities authority of any other
jurisdiction for amending the Registration Statement, for amending or
supplementing the Prospectus or for additional information. The Company
will use its best efforts to prevent the issuance of any such stop
order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(d) If the delivery of a Prospectus relating to the Shares is
required under the Act at any time prior to the expiration of nine
months after the date of the Prospectus, and if at such time any events
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if for any reason it is necessary during such
same period to amend or supplement the Prospectus to comply with the
Act or the rules and regulations thereunder, the Company will promptly
notify you and upon your request (but at the Company's expense) prepare
and file with the Commission an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such
compliance and will furnish without charge to each Underwriter and to
any dealer in securities, as many copies of such amended or
supplemented Prospectus as you may from time to time reasonably
request. If the delivery of a Prospectus relating to the Shares is
required under the Act at any time nine months or more after the date
of the Prospectus, upon your request but at the expense of such
Underwriter, the Company will 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. Neither your
consent to nor the Underwriter's delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 7.
(e) The Company promptly from time to time will take such
action as you may reasonably request to qualify the Shares for offering
and sale under the securities or
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blue sky laws of such jurisdictions as you may request and will
continue such qualifications in effect for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
(f) The Company will promptly provide you, without charge, (i)
one manually executed copy of the Registration Statement as originally
filed with the Commission and of each amendment thereto, (ii) for each
other Underwriter a conformed copy of the Registration Statement as
originally filed and of each amendment thereto, without Exhibits, and
(iii) so long as a prospectus relating to the Shares is required to be
delivered under the Act, as many copies of each Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto as you may
reasonably request.
(g) As soon as practicable, but in any event not later than
the last day of the thirteenth month after the effective date of the
Registration Statement, the Company will make generally available to
its security holders an earnings statement of the Company and its
subsidiary, if any, covering a period of at least 12 months beginning
after the effective date of the Registration Statement (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder.
(h) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company will not, without your prior written consent,
offer, pledge, issue, sell, contract to sell, grant any option for the
sale of, or otherwise dispose of (or announce any offer, pledge, sale,
grant of an option to purchase or other disposition), directly or
indirectly, any shares of Common Stock or securities convertible into,
exercisable or exchangeable for, shares of Common Stock, except for (i)
the Optional Shares, (ii) the issuance of Common Stock upon the
exercise of stock options outstanding on the date of this Agreement and
(iii) the issuance of an option to purchase 15,750 shares of Common
Stock to Xxxxxxx X. Xxxxxxxxx at the First Time of Delivery.
(i) Neither the Company nor any of its officers, directors or
affiliates will, prior to the closing of the purchase and sale of the
Shares, (i) take, directly or indirectly, any action designed to cause
or to result in, or that might reasonably be expected to constitute,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Shares, (ii)
sell, bid for, purchase or pay anyone any compensation for soliciting
purchases of, the Shares or (iii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of
the Company.
(j) The Company will apply the net proceeds from the offering
in the manner set forth under "Use of Proceeds" in the Prospectus.
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(k) The Company will cause the Shares to be listed on the
Nasdaq SmallCap Market of The Nasdaq Stock Market, Inc. (the "SmallCap
Market") at each Time of Delivery and for at least one year from the
date hereof.
(l) The Company will comply in all material respects with its
obligations under the Escrow Agreement and will take such action as
may be necessary to enable the Escrow Agent to satisfy its
obligations under the Escrow Agreement.
6. EXPENSES. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including without limitation all costs and
expenses incident to (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the Shares under
the Act and all other expenses in connection with the preparation, printing and
filing of the Registration Statement (including all amendments thereto), any
Preliminary Prospectus, the Prospectus and any amendments and supplements
thereto, this Agreement and any blue sky memoranda; (ii) the delivery of copies
of the foregoing documents to the Underwriters; (iii) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Shares; (iv) the preparation, issuance and delivery to the Underwriters of
any certificates evidencing the Shares, including transfer agent's and
registrar's fees; (v) the qualification of the Shares for offering and sale
under state securities and blue sky laws, including filing fees and fees and
disbursements of counsel for the Underwriters relating thereto; (vi) any fees or
expenses associated with the listing of the Shares on the SmallCap Market; and
(vii) any expenses for travel, lodging and meals incurred by the Company and any
of its officers, directors and employees in connection with any meetings with
prospective investors in the Shares. It is understood, however, that, except as
provided in this Section, Section 8 and Section 10 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising
expenses relating to the offer and sale of the Shares.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject, in their discretion, to the accuracy of
the representations and warranties of the Company contained herein as of the
date hereof and as of such Time of Delivery, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its covenants and agreements hereunder, and to the following
additional conditions precedent:
(a) If the Registration Statement as amended to date has not
become effective prior to the execution of this Agreement, such
registration statement shall have been declared effective not later
than 11:00 a.m., Charlotte time, on the date of this Agreement or such
later date and/or time as shall have been consented to by you in
writing. The Prospectus and any amendment or supplement thereto shall
have been filed with the Commission pursuant to Rule 424(b) within the
applicable time period prescribed for such filing and in accordance
with Section 5(a) of this Agreement; no stop order
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suspending the effectiveness of the Registration Statement or in part
thereof shall have been issued and no proceedings for that purpose
shall have been instituted, threatened or, to the knowledge of the
Company and the Representative, contemplated by the Commission; and all
requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction.
(b) Xxxxx & Xxx Xxxxx, PLLC, counsel for the Underwriters,
shall have furnished to you such opinion or opinions, dated such 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 which are customary, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(c) You shall have received an opinion, dated such Time of
Delivery, of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, counsel for the Company in
form and substance satisfactory to you and your counsel, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation under the laws of Georgia
and has the corporate power and authority to own or lease its
properties and conduct its business as described in the
Registration Statement and the Prospectus and to enter into
this Agreement and perform its obligations hereunder.
(ii) The subsidiary of the Company has been duly
incorporated, is validly existing as a bank under the laws of
Georgia and has the corporate power and authority to own or
lease its properties and conduct its business as described in
the Registration Statement and the Prospectus. The subsidiary
is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of each
other jurisdiction in which it owns or leases property, 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 financial position, results of
operations or business of the Company and its subsidiary.
(iii) The Company's authorized, issued and
outstanding capital stock is as disclosed in the Prospectus.
All of the issued shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description of the Common
Stock contained in the Prospectus.
(iv) All of the issued shares of capital stock of the
Company's subsidiary has been duly authorized and validly
issued, are fully paid and nonassessable, and are owned
beneficially by the Company.
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(v) The Shares have been duly authorized and, when
issued and delivered against payment therefor as provided
herein, will be validly issued and fully paid and
nonassessable and will conform to the description of the
Common Stock contained in the Prospectus.
(vi) The issue and sale of the Shares being issued at
such Time of Delivery and the performance of this Agreement
and the consummation of the transactions herein contemplated
do not conflict with, or result in a breach or violation of
any of the terms or provisions of, or constitute a default
under any of the following which is filed as an exhibit to the
Registration Statement: any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument
to which the Company or its subsidiary is a party or to which
any of their respective properties or assets is subject, nor
will such action conflict with or violate any provision of the
Articles of Incorporation or Bylaws of the Company or its
subsidiary or any statute, rule or regulation which in such
counsel's experience is normally applicable to transactions of
the type contemplated by this Agreement or to the best of
counsel's knowledge any order, judgment or decree of any court
or governmental agency or body having jurisdiction over the
Company or its subsidiary.
(vii) No consent, approval, authorization or order
from, or registration, qualification or filing with, any
governmental agency or body or self-regulatory organization is
required for the issue and sale of the Shares or the
consummation of the transactions contemplated by this
Agreement, except the registration of the Shares under the Act
and such as may be required under state securities or blue sky
laws in connection with the offer, sale and distribution of
the Shares by the Underwriters.
(viii) This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) The Registration Statement and the Prospectus
and each amendment or supplement thereto (other than the
financial statements and schedules and other financial
information included therein, as to which such counsel need
express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder. The descriptions in the Registration Statement and
the Prospectus of statutes are accurate in all material
respects and fairly present the information required to be
shown; and such counsel does not know of any statutes or legal
or governmental proceedings required to be described in the
Registration Statement or Prospectus that are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required.
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(x) The Registration Statement is effective under the
Act; any required filing of the Prospectus pursuant to Rule
424(b) has been (or will be) made in the manner and within the
time period required by Rule 424(b); and to such counsel's
knowledge no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued
and, to such counsel's knowledge, no proceedings for that
purpose have been instituted or threatened or are contemplated
by the Commission.
(xi) 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.
Such counsel shall also state that no facts have come to their
attention which lead them to believe that as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to the date hereof (other than the financial statements
and related schedules therein or other financial data derived from
accounting records, as to which they need express no opinion) contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Prospectus or any
further amendment or supplement thereto made by the Company prior to
the date hereof (other than the financial statements and related
schedules therein or other financial data derived from accounting
records, as to which they need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
the date hereof, either the Registration Statement or the Prospectus or
any further amendment or supplement thereto made by the Company prior
to the date hereof (other than the financial statements and related
schedules therein or other financial data derived from accounting
records, as to which they need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deem proper, on
certificates of responsible officers of the Company and public
officials.
(d) You shall have received from Cherry, Bekaert & Holland,
L.L.P. letters dated, respectively, the date of this Agreement and the
effective date of the most recently filed post-effective amendment to
the Registration Statement and also at each Time of Delivery, in form
and substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference
in the Registration Statement and the Prospectus.
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(e) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor its subsidiary
shall have sustained (i) any material loss or interference with their
respective businesses from fire, explosion, flood, hurricane or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as disclosed in or contemplated by the Prospectus, or (ii) any
material change, or any material development involving a prospective
change (including without limitation a change in management or control
of the Company), in or affecting the position (financial or otherwise),
results of operations, net worth or business prospects of the Company
and its subsidiary, otherwise than as disclosed in or contemplated by
the Prospectus (including any amendment), the effect of which, in
either such case, is in your judgment so material and adverse as to
make it impracticable or inadvisable to proceed with the purchase, sale
and delivery of the Shares being delivered at such Delivery as
contemplated by the Registration Statement, as amended as of the date
hereof.
(f) Subsequent to the date hereof there shall not have
occurred any of the following: (i) any suspension or limitation in
trading in securities generally on the New York Stock Exchange (other
than normal market breaks or cooling periods), or any setting of
minimum prices for trading on such exchange, or in the Common Stock by
the Commission or The Nasdaq Stock Market, Inc.; (ii) a moratorium on
commercial banking activities in New York declared by either federal or
state authorities; (iii) any major outbreak or major escalation of
hostilities involving the United States, declaration by the United
States of a national emergency (other than with respect to natural
disasters) or war or any other national or international calamity or
emergency if the effect of any such event specified in this clause
(iii) in your judgment makes it impracticable or inadvisable to proceed
with the purchase, sale and delivery of the Shares being delivered at
such Time of Delivery as contemplated by the Registration Statement, as
amended as of the date hereof.
(g) The Company shall have furnished to you at such Time of
Delivery certificates of officers of the Company, satisfactory to you
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, and as to such other matters as you may
reasonably request, and the Company shall have furnished or caused to
be furnished certificates as to the matters set forth in subsections
(a) and (e) of this Section 7, and as to such other matters as you may
reasonably request.
(h) The Shares shall be included for listing on the SmallCap
Market.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
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upon: (i) any untrue statement or alleged untrue statement made by the Company
in Section 1 of this Agreement; (ii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or (B) any application or other document, or
any amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities or blue sky
laws thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"); or (iii) the omission or alleged
omission to state in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application, material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter. The Company will not,
without the prior written consent of each Underwriter, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding (or related cause of action or portion thereof) in respect of
which indemnification may be sought hereunder (whether or not such Underwriter
is a party to such claim, action, suit or proceeding), unless: such settlement,
compromise or consent includes an unconditional release of such Underwriter from
all liability arising out of such claim, action, suit or proceeding or related
cause of action or portion thereof.
(b) Each Underwriter agrees to indemnify and hold harmless the Company
and its officers, directors, agents, representatives and affiliates against any
losses, claims, damages or liabilities to which the Company or its officers,
directors, agents, representatives and affiliates may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto or any Application or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter through you expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by
such Company in connection with investigating or defending any such loss, claim,
damage, liability or action.
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(c) Promptly after receipt by an indemnified party under subsection (a)
and (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party); provided, however, that if the defendants in any such action included
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such action on behalf of such indemnified
party and such indemnified party shall have the right to select separate counsel
to defend such action on behalf of such indemnified party. After such notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances, which
separate counsel shall be designated by the Representative in the case of
indemnity arising under paragraph (a) of this Section 8) or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Nothing in this Section 8(c)
shall preclude an indemnified party from participating at its own expense in the
defense of any such action so assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter on
the other from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriter on the other in connection with the
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statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts, and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
the Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. DEFAULT OF UNDERWRITERS. (a) If any Underwriter defaults in its
obligation to purchase Shares at a Time of Delivery, you may in your discretion
arrange for you or another party, or other parties to purchase such shares on
the terms contained herein. If within 36 hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, the Company
shall be entitled to a further period of 36 hours within which to procure
another party or other parties satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed periods, you
notify the Company that you have so arranged for the purchase of such Shares, or
the Company notifies you that it has so arranged for the purchase of such
Shares, you or the Company shall have the right to postpone a Time of Delivery
for a period of not more than 7 days in order to effect whatever change is made
thereby be made necessary in the Registration Statement or the Prospectus, or in
any other documents or
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arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus that in your opinion may thereby be
made necessary. The cost of preparing, printing and filing any such amendments
shall be paid for by the Underwriters. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with effect as
if such person had originally been a party to this Agreement with respect to
such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made, but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
10. TERMINATION. (a) This Agreement may be terminated with respect to
the Shares in the sole discretion of the Representative by notice to the Company
given prior to the First Time of Delivery or any Subsequent Time of Delivery,
respectively, in the event that (i) any condition to the obligations of the
Underwriters set forth in Section 7 hereof has not been satisfied, or (ii) the
Company shall have failed, refused or been unable to deliver the Shares or to
perform all obligations and satisfy all conditions on its part to be performed
or satisfied hereunder at or prior to such Time of Delivery, in either case
other than by reason of a default by any of the Underwriters. If this Agreement
is terminated pursuant to this Section 10(a), the Company will reimburse the
Underwriters upon demand for all out-of-pocket expenses (including counsel fees
and disbursements) that shall have been incurred by it in connection with the
proposed purchase and sale of the Shares. The Company shall not in any event be
liable to any of the Underwriters for the loss of anticipated profits from the
transactions covered by this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in Section 9(a), the aggregate number of such Shares which remain
unpurchased exceeds one-eleventh of the aggregate number of Shares to be
purchased at such Time of Delivery, or if the Company shall not exercise the
right described in Section 9(b) to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to a Subsequent Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares)
thereupon will terminate, without liability on the part of any nonfaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
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11. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers and the
Underwriter, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of the Underwriter or any controlling person referred to in
Section 8(e) or the Company, or any officer or director or controlling person of
the Company referred to in Section 8(e), and shall survive delivery of and
payment for the Shares. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 8 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriter, shall be mailed, delivered or telegraphed and confirmed
in writing to the Representative, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Corporate Finance Department (with a copy to Xxxxx &
Xxx Xxxxx, PLLC, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 00, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Xxxxxx Xxxxxxx III, Esq., and if sent to the Company,
shall be mailed, delivered or telegraphed and confirmed in writing to the
Company at 000 Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: President
and Chief Executive Officer (with a copy to Xxxxx, Xxxxxxxx & Xxxxxxx, LLP,
Promenade II, Suite 3100, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxx).
13. REPRESENTATIVE. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you will be binding upon all the Underwriters.
14. BINDING EFFECT. This Agreement shall be binding upon, and inure
solely to the benefit of, each Underwriter and the Company and to the extent
provided in Sections 8 and 10 hereof, the officers and directors and controlling
persons referred to therein and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from the Underwriters shall be deemed a successor or assign by reason
merely of such purchase.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina without giving effect to
any provisions regarding conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by the Representative, this letter will constitute a
binding agreement among the Underwriters and the Company.
Very truly yours,
GEORGIA-CAROLINA BANCSHARES, INC.
By: _______________________________
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above
at Charlotte, North Carolina.
INTERSTATE/XXXXXXX LANE CORPORATION
By: ___________________________
Xxxxx X. Xxxx, Jr.
Managing Director
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SCHEDULE I
GEORGIA-CAROLINA BANCSHARES, INC.
740,000 SHARES
COMMON STOCK
NUMBER OF
OPTIONAL SHARES
TO BE PURCHASED
IF THE MAXIMUM
NUMBER OF
TOTAL MAXIMUM STANDBY SHARES
NUMBER OF NUMBER OF ARE PURCHASED
FIRM SHARES STANDBY AND THE
TO BE SHARES TO BE MAXIMUM OPTION
UNDERWRITER PURCHASED PURCHASED IS EXERCISED
----------- ----------- ------------ ---------------
Interstate/Xxxxxxx Lane Corporation
Total
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