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EXHIBIT 1.1
SOUTHERNBANK HOLDINGS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______________, 2000
WACHOVIA SECURITIES, INC.
As representative of the several
Underwriters named in Schedule I hereto,
c/o Wachovia Securities, Inc.
IJL Financial Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Subject to the terms and conditions stated herein, SouthernBank
Holdings, Inc., a Georgia corporation (the "Company") and proposed holding
company for SouthernBank, N.A., a national banking association in organization
(the "Bank"), proposes to issue and sell to the underwriters named in Schedule I
hereto (collectively, the "Underwriters") an aggregate of 1,250,000 shares of
common stock, $1.00 par value per share (the "Common Stock"), of the Company
(the "Firm Shares"), and, at the election of the Underwriters, to sell to the
Underwriters up to 187,500 additional shares of Common Stock (the "Optional
Shares") solely to cover over-allotments, if any (the Firm Shares and the
Optional Shares that the Underwriters elect to purchase pursuant to Section 2
hereof are collectively called the "Shares").
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with each of the Underwriters that:
(a) A registration statement on Form SB-2 (File No. 333-32786)
with respect to the Shares, has been filed by the Company with the
Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). The
registration statement and any amendments thereto, including any
post-effective amendments, have been declared effective by the
Commission in such form and copies of each of those items have been
delivered by the Company to you. No other document with respect to the
registration statement or any post effective amendment thereto has been
filed with the Commission. 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
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registration statement or filed with the Commission pursuant to Rule
424 of the Rules and Regulations of the Commission under the Securities
Act (the "Rules and Regulations"), is herein called a "Preliminary
Prospectus." The various parts of such registration statement,
including the prospectus, Part II, all financial schedules and exhibits
thereto, and including the information contained in the form of any
final prospectus filed with the Commission pursuant to Rule 424(b)
under the Securities Act, and deemed by virtue of Rule 430A under the
Securities Act to be part of the registration statement at the time it
was declared effective, as amended at the time such part became
effective, are herein called collectively the "Registration Statement."
The final prospectus, in the form first filed pursuant to Rule 424(b)
or as included in the Registration Statement at the time it is declared
effective if no Rule 424(b) filing is required, is herein called the
"Prospectus."
(b) No order preventing or suspending the use of any
Prospectus, including any Preliminary Prospectus, has been issued and
no proceeding for that purpose has been instituted or threatened by the
Commission or the securities authority of any state or other
jurisdiction. No stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceeding for that purpose has been instituted or threatened or, to
the best knowledge of the Company, contemplated by the Commission or
the securities authority of any state or other jurisdiction.
(c) Each Preliminary Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto complied when so filed in all material respects with the
requirements applicable to it under the Securities Act and the Rules
and Regulations, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading. Any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission,
as the case may be, will conform in all material respects to the
requirements of the Securities Act, and the Rules and Regulations and
will not contain an untrue statement of material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through Wachovia
Securities, Inc. (the "Representative") expressly for use therein. When
the Registration Statement or any amendment thereto was declared
effective, and at each Time of Delivery (as hereinafter defined), it
(i) contained all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Securities Act and the Rules and
Regulations and (ii) did not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, 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
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Prospectus was or is declared effective) and at each Time of Delivery,
the Prospectus, as amended or supplemented at any such time (i)
contained or will contain all statements required to be stated therein
in accordance with, and complied or will comply in all material
respects with the requirements of, the Securities Act and the Rules and
Regulations and (ii) did not or will not include any untrue statement
of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d) The descriptions in the Registration Statement and the
Prospectus of statutes, rules, regulations, legal and governmental
proceedings or contracts and other documents that are required to be so
described are accurate and fairly present the information required to
be shown. In addition, there are no statutes, rules, regulations or
legal or governmental proceedings required to be described in the
Registration Statement or the Prospectus that are not described as
required and no contracts or documents of a character that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not
described and filed as required.
(e) The Company has been duly incorporated, is validly
existing as a corporation under the laws of the State of Georgia and
has full power and authority to own or lease its properties and conduct
its business as described in the Prospectus. The Bank is a national
banking association in organization under the laws of the United States
of America and, upon the issuance of a charter by the Office of the
Comptroller of the Currency (the "OCC"), will have full power and
authority to own or lease its properties and conduct its business as
described in the Prospectus. The Company has full power and authority
to enter into this Agreement and to perform its obligations hereunder.
Neither the Company nor the Bank is required to be qualified to
transact business as a foreign corporation under the laws of any other
jurisdiction 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, general affairs, management, business or prospects of the
Company and the Bank.
(f) The capitalization of the Company is as disclosed under
the caption "Capitalization" in the Prospectus. All of the issued
shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description of the capital stock under the caption "Description of Our
Capital Stock" contained in the Prospectus. None of the issued shares
of capital stock of the Company has been issued or is owned or held in
violation of any preemptive or similar rights, and no person or entity
(including any holder of outstanding shares of capital stock of the
Company or its subsidiary) has any preemptive or other rights to
subscribe for any of the Shares. None of the shares of capital stock of
the Bank has been issued.
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(g) Upon the issuance of a charter by the OCC and the payment
for the capital stock of the Bank, all of the issued shares of the Bank
will be duly authorized and validly issued, fully paid, and, except as
may be applicable under the National Bank Act, nonassessable and will
be owned beneficially by the Company free and clear of all liens,
security interests, pledges, charges, encumbrances, defects,
shareholders' agreements, voting trusts, equities or claims of any
nature whatsoever. The Company has made application:
(i) to the Board of Governors of the Federal Reserve
System and the Georgia Department of Banking and Finance for
approval to become a bank holding company and to acquire all
of the shares of the Bank;
(ii) to the OCC, to charter a national bank; and
(iii) to the Federal Deposit Insurance Corporation
for Federal Deposit Insurance for deposits of the Bank
(collectively, the "Regulatory Approvals").
The Company and the Bank have obtained or have filed for all
other material licenses, consents and approvals, and have satisfied or
have taken all action required at this time to satisfy all material
eligibility and other similar requirements imposed by federal and state
regulatory bodies, administrative agencies or other governmental
bodies, agencies or officials, in each case applicable to the conduct
of the business in which they are engaged or are contemplated to be
engaged as described in the Registration Statement. With respect to the
Regulatory Approvals, as well as all other material licenses, consents
and approvals, and any other similar requirements that the Company or
the Bank does not have at this time:
(i) all applications therefor are complete and
accurate;
(ii) each has been filed with the appropriate
regulatory authorities; and
(iii) the Company knows of no reason why the
Regulatory Approvals will not be received or satisfied prior
to the time the same are required.
Other than the Bank, the Company does not own, directly or indirectly,
any capital stock or other equity securities of any corporation or any
ownership interest in any partnership, joint venture or other
association.
(h) Except as disclosed in the Prospectus, there are no
outstanding:
(i) securities or obligations of the Company or the
Bank convertible into or exchangeable for any capital stock of
the Company or the Bank;
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(ii) warrants, rights or options to subscribe for or
purchase from the Company or the Bank any such capital stock
or any such convertible or exchangeable securities or
obligations; or
(iii) obligations of the Company or the Bank to issue
any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants,
rights or options.
(i) Since the date as of which information is given in the
Prospectus, neither the Company nor the Bank has sustained any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as disclosed in or contemplated by the Prospectus.
(j) Since the date as of which information is given in the
Prospectus:
(i) neither the Company nor the Bank has incurred any
liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business,
that are material to the Company and the Bank;
(ii) the Company has not purchased any of its
outstanding capital stock or declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock;
(iii) there has not been any change in the capital
stock, long-term debt or short-term debt of the Company or the
Bank (except with respect to such changes in the balance due
under any lines of credit described in the Prospectus); and
(iv) there has not been any material adverse change,
or any development involving a prospective material adverse
change, in or affecting the financial position, general
affairs, management, business or prospects of the Company and
the Bank, in each case other than as disclosed in or
contemplated by the Prospectus.
(k) The consolidated financial statements of the Company,
together with related notes and schedules as set forth in the
Registration Statement, conform to the requirements of the Securities
Act and the Rules and Regulations. Such financial statements fairly
present the consolidated financial position of the Company at the
respective dates indicated in accordance with generally accepted
accounting principles applied on a consistent basis for the periods
indicated. The Company and the Bank have no material contingent
obligations that are not disclosed in the Company's financial
statements, which are included in the Registration Statement. Xxxxxxx &
Xxxxxxx, LLC,
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whose report is included in the Registration Statement, are independent
certified public accountants as required by the Securities Act and the
Rules and Regulations.
(l) The Shares to be sold by the Company hereunder have been
duly authorized and, when issued and delivered against payment therefor
as provided herein, will be validly issued and fully paid and
nonassessable and will conform to the description of the Common Stock
contained in the Prospectus. All corporate action required to be taken
for the authorization, issuance and sale of the Shares has been validly
taken. The Underwriters will receive good and marketable title to the
Shares to be issued and delivered hereunder, free and clear of all
liens, encumbrances, claims, security interests, restrictions,
shareholders' agreements and voting trusts whatsoever. The certificates
evidencing the Shares will be in due and proper form and will comply
with all applicable legal requirements.
(m) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration
Statement or any securities being registered pursuant to any other
registration statement filed by the Company under the Securities Act.
(n) Neither the Company nor the Bank is, or (with or without
the giving of notice or passage of time or both) would be:
(i) in violation of its Articles of Incorporation or
Articles of Association (as the case may be), Bylaws or other
governing instruments; or
(ii) in default under any indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or
instrument to which the Company or the Bank is a party or to
which any of their respective properties or assets are
subject, except where such default would not have a material
adverse effect on either the Company or the Bank.
(o) The issue and sale of the Shares and the performance of
this Agreement and the consummation of the transactions herein
contemplated will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or the Bank is a party or
to which any of their respective properties or assets is subject, nor
will such action conflict with or violate any provision of the Articles
of Incorporation or Articles of Association (as the case may be),
Bylaws or other governing instruments of the Company or the Bank, or
any statute, rule or regulation or
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any order, judgment or decree of any court or governmental agency or
body having jurisdiction over the Company or the Bank or any of their
respective properties or assets.
(p) The Company and the Bank have good and marketable title in
fee simple to all real property, if any, and good title to all personal
property owned by them, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and
defects, except such as are disclosed in the Prospectus or such as do
not materially and adversely interfere with the operations of the
Company and the Bank. Any real property and buildings held under lease
by the Company or the Bank are held under valid, subsisting and
enforceable leases, with such exceptions as are disclosed in the
Prospectus or are not material and do not interfere with the operations
of the Company or the Bank.
(q) No consent, approval, authorization, order or declaration
of or from, or registration, qualification or filing with, any court or
governmental agency or body or third party is required for the issue
and sale of the Shares or the consummation of the transactions
contemplated by this Agreement, except:
(i) the registration of the Shares under the
Securities Act and such as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") and under
state securities or blue sky laws in connection with the
offer, sale and distribution of the Shares by the
Underwriters; and
(ii) as required in connection with the Regulatory
Approvals.
(r) Other than as disclosed in the Prospectus, there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or, to the knowledge of any director or executive
officer of the Company, threatened (or any reasonable basis therefor)
in which the Company or the Bank is a party or of which any of their
respective properties or assets are the subject which, if determined
adversely to the Company or the Bank, would individually or in the
aggregate have a material adverse effect on the financial position,
general affairs, management, business or prospects of the Company and
the Bank.
(s) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization and moratorium laws and other laws relating
to or affecting the enforcement of creditors' rights generally and to
general equitable principles, and except as the enforceability of
rights to indemnity and contribution under this Agreement may be
limited under applicable securities laws or the public policy
underlying such laws.
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(t) Neither the Company nor any of its organizers, officers,
directors or affiliates has:
(i) taken, directly or indirectly, any action
designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares; or
(ii) since the filing of the Registration Statement
(A) sold, bid for, purchased or paid anyone any compensation
for soliciting purchases of, the Shares or (B) paid or agreed
to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(u) None of the Company, the Bank, nor, to the knowledge of
the Company, any organizer, director or executive officer, agent,
employee or other person acting on behalf of the Company or the Bank
has:
(i) used or authorized the use of, any corporate or
other funds for unlawful payments, or contributions;
(ii) made unlawful expenditures relating to political
activity to government officials; or
(iii) established or maintained any unlawful or
unrecorded funds in violation of any federal, state, or local
law or regulation, including Section 30A of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
None of the Company, the Bank, nor, to the knowledge of the Company,
any organizer, director or executive officer of the Company or the Bank
has accepted or received any unlawful contributions or payments.
(v) The Company has obtained for the benefit of the Company
and the Underwriters from each of its organizers, directors and
executive officers a written agreement (the "Lockup Agreements") that
for a period of 180 days from the date of the Prospectus such
organizer, 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 the Common Stock or securities convertible
into, or exercisable or exchangeable for, shares of the Common Stock.
(w) The Bank, upon the issuance of a charter by the OCC, will
not be prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distributions on the Bank's capital
stock, from repaying to the Company any loans or advances to the Bank
or from transferring the Bank's property or
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assets to the Company, except as prohibited by federal or state
regulations as disclosed in the Prospectus.
(x) The Company and the Bank have filed all material foreign,
federal, state and local tax returns that are required to be filed by
them and have paid all taxes shown as due on such returns as well as
all other taxes, assessments and government charges that are due and
payable. No deficiency with respect to any such return has been
assessed or proposed in any material respects. All tax liabilities have
been adequately provided for in the financial statements of the
Company.
(y) The Company is not, nor will it become as a result of
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940.
2. PURCHASE AND SALE OF SHARES.
(a) Subject to the terms and conditions herein set forth:
(i) the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agree, severally and not
jointly, to purchase from the Company the number of Firm Shares set
opposite the name of such Underwriter in Schedule 1 hereto, at the
following purchase prices:
(A) with respect to the Firm Shares not purchased by
the Company's organizers and executive officers, as described
in (B) below, at a purchase price of $9.25 per share; and
(B) with respect to the Firm Shares purchased by the
Company's organizers and executive officers, but only up to a
maximum of 375,000 Firm Shares, at a purchase price of $9.65
per share;
(ii) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a purchase price of
$9.25 per share, that portion of the number of Optional Shares as
to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of
which is the maximum number of Optional Shares that such
Underwriter is entitled to purchase as set forth opposite the name
of such Underwriter in Schedule I hereto and the denominator of
which is the maximum
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number of Optional Shares that all of the Underwriters are entitled to
purchase hereunder.
(b) The Company hereby grants to the Underwriters the right to
purchase at their election in whole or in part from time to time up to
187,500 Optional Shares, at the purchase price of $9.25 per share for
the sole purpose of covering over-allotments in the sale of Firm
Shares. Any such election to purchase Optional Shares may be exercised
by written notice from you to the Company, given from time to time
within a period of 30 calendar days after the date of this Agreement
and setting forth the aggregate number of Optional Shares to be
purchased and the date on which the Optional Shares are to be
delivered, as determined by you but in no event 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).
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 wire transfer of immediately available funds to an account
designated by the Company. The closing of the sale and purchase of the Shares
shall be held at the offices of Powell, Goldstein, Xxxxxx & Xxxxxx LLP, Atlanta,
Georgia. The time and date of such delivery and payment shall be, with respect
to the Firm Shares, at 10:00 a.m., Atlanta, Georgia time, on the 3rd (or if the
Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange
Act, after 4:30 p.m., Washington, D.C. time, on the 4th) full business day after
the execution of this Agreement or at such other legally permissible time and
date as you and the Company may agree upon in writing, and, with respect to the
Optional Shares, at 10:00 a.m., Atlanta, Georgia time, on the date specified by
you in the written notice given by you of the Underwriters' election to purchase
all or part of the Optional Shares, or at such other time and date as you and
the Company may agree upon in writing as provided in Section 2 herein. Such time
and date for delivery of the Firm Shares is herein called the "First Time of
Delivery," such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called a "Subsequent Time of Delivery," and
each such time and date for delivery is herein called a "Time of Delivery." The
Company will make such certificates available for checking and packaging at
least 24 hours prior to each Time of Delivery at your office at the address set
forth above or such other location designated by you to the Company. If the
Representative so elects, delivery of the Firm Shares and the Optional Shares,
if any, may be
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made by credit through full fast transfer to the accounts at the Depositary
Trust Company designated by the Representative.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Underwriters:
(a) The Company shall comply with the provisions of and make
all requisite filings with the Commission pursuant to and in accordance
with Rule 430A and subparagraph (1) (or, if applicable and if consented
to by you, subparagraph (4)) of Rule 424(b) not later than the earlier
of (i) the second business day following the execution and delivery of
this Agreement or (ii) the date on which the Prospectus is first used
after the Registration Statement is declared effective. The Company
will advise you promptly of any such filing pursuant to Rules 430A or
424(b).
(b) The Company will not file with the Commission the
Prospectus or any amendment or supplement to the Prospectus or any
amendment to the Registration Statement unless you have received a
reasonable period of time to review any such proposed amendment or
supplement and consented to the filing thereof and will use its best
efforts to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible. Upon the request of the
Representative or counsel for the Representative, the Company will
promptly prepare and file with the Commission, in accordance with the
Rules and Regulations, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or
advisable in connection with the distribution of the Shares by the
Underwriters and will use its best efforts to cause any such amendment
to the Registration Statement to be declared effective as promptly as
possible. If required, the Company will file any amendment or
supplement to the Prospectus with the Commission in the manner and
within the time period required by Rule 424(b) under the Securities
Act. The Company will advise the Representative, promptly after
receiving notice thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and
will provide evidence to the Representative of each such filing or
effectiveness.
(c) The Company will advise you promptly after receiving
notice or obtaining knowledge of:
(i) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or
any part thereof or any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto;
(ii) the suspension of the qualification of the
Shares for offer or sale in any jurisdiction or of the
initiation or threatening of any proceeding for any such
purpose; or
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(iii) any request made by the Commission or any
securities authority of any other jurisdiction for amending
the Registration Statement, for amending or supplementing the
Prospectus or for additional information.
The Company will use its best efforts to prevent the issuance of any
such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(d) If during the period in which a prospectus is required by
law to be delivered by the Underwriters or dealers, any events shall
have occurred as a result of which, in the judgment of the Company or
the opinion of the Underwriters, the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or if for any reason it is necessary during such
same period to amend or supplement the Prospectus to comply with the
Securities Act or the Rules and Regulations or any law, the Company
will promptly notify you and upon your request (but at the Company's
expense) prepare and file with the Commission and any state or other
governmental securities commissions in jurisdictions where the Shares
have been sold by the Underwriters, an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such
compliance and will furnish without charge to each of the Underwriters
and to any dealer in securities, as many copies of such amended or
supplemented Prospectus as you may from time to time reasonably
request. Neither your consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 7.
(e) The Company promptly from time to time will take such
action as you may reasonably request to qualify the Shares for offering
and sale under the securities or blue sky laws of such jurisdictions as
you may request and will continue such qualifications in effect for as
long as may be necessary to complete the distribution of the Shares,
provided that in connection therewith the Company shall not be required
to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction. In the event that the
qualification of the Shares in any jurisdiction is suspended, the
Company shall so advise the Representative promptly in writing.
(f) The Company will deliver to, or upon the order of, the
Representative, from time to time, as many copies of the Preliminary
Prospectus as the Representative may reasonably request. The Company
will deliver to, or upon the order of, the Representative, during the
period when delivery of a Prospectus is required under the Securities
Act, as many copies of the Prospectus in final form, or as thereafter
amended or supplemented, as the Representative may reasonably request.
The Company will deliver to the Representative at or before the Time of
Delivery, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will
deliver to the Representative such number of copies of the Registration
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Statement (including such number of copies of the exhibits filed
therewith that may be reasonably requested), and of all amendments
thereto, as the Representative may reasonably request.
(g) The Company will, from time to time, after the effective
date of the Registration Statement file with the Commission such
reports as are required by the Securities Act, the Exchange Act and the
Rules and Regulations, and the Company agrees to keep the Common Stock
registered pursuant to the Exchange Act for at least five years after
the date hereof. The Company shall also file with foreign, state and
other governmental securities commissions in jurisdictions where the
Shares have been sold by the Underwriters such reports as are required
to be filed by the securities acts and the regulations of those
jurisdictions.
(h) As soon as practicable, but in any event not later than
the last day of the 13th month after the effective date of the
Registration Statement, the Company will make generally available to
its security holders an earnings statement (which need not be audited)
in reasonable detail covering a period of at least 12 consecutive
months beginning after the effective date of the Registration
Statement, complying with Section 11(a) of the Securities Act and the
Rules and Regulations and will advise you in writing when such
statement has been so made available.
(i) The Company will, for a period of five years from the Time
of Delivery, deliver to the Representative copies of annual reports and
copies of all other documents, reports and information furnished by the
Company to its shareholders or filed with the NASD or any securities
exchange pursuant to the requirements of such exchange or with the
Commission pursuant to the Securities Act or the Exchange Act. The
Company will deliver to the Representative similar reports with respect
to significant subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company's financial
statements.
(j) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company will not, without your prior written consent,
offer, pledge, issue, sell, contract to sell, grant any option for the
sale of, or otherwise dispose of (or announce any offer, pledge, sale,
grant of an option to purchase or other disposition), directly or
indirectly, any shares of the Common Stock or securities convertible
into, exercisable or exchangeable for, shares of the Common Stock,
except as provided in Section 2 and except as described in the
Prospectus.
(k) Neither the Company nor any of its organizers, officers,
directors or affiliates will:
(i) take, directly or indirectly, prior to the
closing of the purchase and sale of the Shares, any action
designed to cause or to result in, or that might
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reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares;
(ii) sell, bid for, purchase or pay anyone any
compensation for soliciting purchases of, the Shares; or
(iii) pay or agree to pay to any person any
compensation for soliciting another to purchase any other
securities of the Company.
(l) The Company will apply the net proceeds from the offering
in the manner set forth under the heading "Use of Proceeds" in the
Prospectus, including the payment of the full amount required for the
capitalization of the Bank, and will timely report such use of proceeds
pursuant to Item 701 of Regulation S-B or S-K in its periodic reports
filed pursuant to Section 13(a) and 15(d) of the Exchange Act in
accordance with Rule 463 of the Securities Act or any successor
provision.
(m) If at any time during the 60-day period after the
Registration Statement becomes effective, any rumor, publication or
event relating to or affecting the Company shall occur as a result of
which in your reasonable opinion the market price of the Common Stock
has been or is likely to be materially affected (regardless of whether
such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus) and after written notice from you advising
the Company to the effect set forth above, the Company agrees to
forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor,
publication or event.
(n) The Company will cause the Shares to be quoted on the
Nasdaq OTC Bulletin Board (or a stock exchange acceptable to the
Representative) at each Time of Delivery and for at least three years
from the date hereof.
6. EXPENSES. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 10 hereof, including without limitation all costs and
expenses incident to:
(a) The fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Shares under the Securities Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement
(including all amendments thereto), any Preliminary Prospectus, the
Prospectus and any amendments and supplements thereto, this Agreement
and any blue sky memoranda;
(b) The delivery of copies of the foregoing documents to the
Underwriters;
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(c) The filing fees of the Commission and the NASD relating to
the Shares;
(d) The preparation, issuance and delivery to the Underwriters
of any certificates evidencing the Shares, including transfer agent's
and registrar's fees;
(e) The qualification of the Shares for offering and sale
under state securities and blue sky laws, including filing fees and
fees and disbursements of counsel for the Underwriters relating
thereto;
(f) Any expenses of listing the Shares on the Nasdaq OTC
Bulletin Board (or such stock exchange as the Shares may be listed);
(g) Any expenses for travel, lodging and meals incurred by the
Company and any of its organizers, 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 6,
Section 8 and Section 10 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel (other than
those related to qualification of the Shares for offering and sale
under state securities or blue sky laws), stock transfer taxes on
resale of any Shares by them, and their advertising expenses related 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) The Registration Statement as amended to date shall have
become effective prior to the execution of this Agreement or at such
later date and/or time as shall have been consented to by you in
writing. If required, the Prospectus and any amendment or supplement
thereto shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing and
in accordance with Section 5(a) of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceedings for that purpose
shall have been instituted, threatened or, to the knowledge of the
Company and the Representative, contemplated by the Commission. All
requests for additional information on the part of the Commission shall
have been complied with to your reasonable satisfaction.
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(b) Powell, Goldstein, Xxxxxx & Xxxxxx LLP, counsel for the
Underwriters, shall have furnished to you such opinion or opinions,
dated such Time of Delivery, with respect to such matters as you may
reasonably require and which are customary, and the Company shall have
furnished to such counsel such documents as they reasonably 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 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, is
validly existing as a corporation under the laws of the State
of Georgia and has the corporate power and authority to own or
lease its properties and conduct its business as described in
the Registration Statement and the Prospectus and to enter
into this Agreement and perform its obligations hereunder. The
Company is duly qualified to transact business as a foreign
corporation where required and where failure to so qualify
would have a material adverse effect on the Company.
(ii) The Company has received evidence of the receipt
of each of the Regulatory Approvals.
(iii) The Bank is a national banking association in
organization under the laws of the United States of America
and, upon the issuance of a charter by the OCC, will have the
corporate power and authority to own or lease its properties
and conduct its business as described in the Registration
Statement and the Prospectus.
(iv) The Company's authorized, issued and outstanding
capital stock is as disclosed under the caption
"Capitalization" in the Prospectus. None of the issued shares
has been issued in violation of or subject to any preemptive
rights provided for by law, agreement or the Company's
Articles of Incorporation or Bylaws.
(v) Upon the issuance of a charter by the OCC, the
shares of capital stock of the Bank will be issued only to the
Company free and clear of any liens, claims or encumbrances of
any kind, and the Bank will become a wholly owned subsidiary
of the Company.
(vi) The Shares to be sold by the Company have been
duly authorized and, when issued and delivered against payment
therefor as provided herein, will be validly issued and fully
paid and nonassessable and will conform to the description of
the Common Stock contained in the Prospectus. The Underwriters
will receive valid title to the Shares to be issued and
delivered by the Company pursuant to this Agreement, free and
clear of all liens, encumbrances, claims,
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security interests, restrictions, shareholders' agreements and
voting trusts whatsoever.
(vii) To the knowledge of such counsel, the Company
does not have outstanding any options to purchase, or any
rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments
to issue or sell any capital stock, and there are no
preemptive rights or other rights to subscribe for or purchase
any capital stock of the Company, or any restriction upon the
transfer of, the Shares pursuant to the Company's Articles of
Incorporation or Bylaws or any agreement or other instrument
to which the Company is a party or by which it may be bound,
except as described in the Prospectus. To the knowledge of
such counsel, neither the filing of the Registration Statement
nor the offer or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the
registration of any of the Common Stock or any other
securities of the Company.
(viii) The issue and sale of the Shares being issued
at such Time of Delivery and the performance of this Agreement
and the consummation of the transactions herein contemplated
will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach or
violation of any of the terms or provisions of, or constitute
a default under any document or agreement which is an Exhibit
to the Registration Statement, or violate any provision of the
Articles of Incorporation, Articles of Association, Bylaws or
other governing instruments of the Company or the Bank as the
case may be, or any statute, rule or regulation or, to such
counsel's knowledge after diligent inquiry, any order,
judgment or decree of any court or governmental agency or body
having jurisdiction over the Company or the Bank or any of
their respective properties or assets.
(ix) No consent, approval, authorization or order
from, or registration, qualification or filing with, any
governmental agency or body or third party is required for the
issue and sale of the Shares or the consummation of the
transactions contemplated by this Agreement, except (A) the
registration of the Shares under the Securities Act and such
as may be required by the NASD and under state securities or
blue sky laws in connection with the offer, sale and
distribution of the Shares by the Underwriters, and (B) as
required in connection with the Regulatory Approvals.
(x) This Agreement has been duly authorized, executed
and delivered by the Company and constitutes the valid and
binding agreement of the Company enforceable against the
Company in accordance with its terms subject, as to
enforcement, to applicable bankruptcy, insolvency,
reorganization and moratorium laws and other laws relating to
or affecting the enforcement of creditors' rights generally
and to general equitable principles, and except as the
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enforceability of rights to indemnity and contribution under
this Agreement may be limited under applicable securities laws
and further subject to 12 U.S.C.ss.1818(b)(6)(D) and similar
bank regulatory powers and to the application of the public
policy underlying such laws.
(xi) The Company and the Bank have obtained or have
filed for all licenses, consents and approvals, and have
satisfied or have taken all action required at this time to
satisfy all eligibility and other similar requirements imposed
by federal and state regulatory bodies, administrative
agencies or other governmental bodies, agencies or officials,
in each case necessary for the conduct of the business in
which they are engaged or are contemplated to be engaged as
described in the Prospectus (except where the failure to have
any such licenses, consents, and approvals, or to have
satisfied or taken such action to satisfy the requirements,
individually or in the aggregate, would not have a material
adverse effect on the business, properties, operations, or
financial condition of the Company or its subsidiaries, taken
as a whole). With respect to any necessary licenses, consents
and approvals, and any necessary eligibility and other similar
requirements that the Company or the Bank does not have at
this time, (A) all applications therefor are, to such
counsel's knowledge, complete and accurate, and have been
filed with the appropriate regulatory authorities, and (B)
counsel knows of no reason why the same will not be received
or satisfied prior to the time the same are required to
conduct business as described in the Prospectus.
(xii) To such counsel's knowledge after diligent
inquiry, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or
the Bank is a party, or to which property of the Company or
the Bank is subject, before or brought by any court or
governmental agency or body.
(xiii) To the knowledge of such counsel, neither the
Company nor the Bank is in violation of any law, ordinance,
administrative or governmental rule or regulation applicable
to the Company or the Bank, or any decree of any court or
governmental agency or body having jurisdiction over the
Company or the Bank, except where such violation does not and
will not have a material adverse effect on the Company and the
Bank as a whole.
(xiv) The Registration Statement and the Prospectus
and each amendment or supplement thereto (other than the
financial statements and schedules and other financial
information included therein, as to which such counsel need
express no opinion), as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Securities Act and the Rules and
Regulations. The descriptions in the Registration Statement
and the Prospectus of statutes, rules and regulations are
accurate and fairly present the information required to be
shown. Such counsel does not know
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of any statutes, rules, regulations or legal or governmental
proceedings required to be described in the Registration
Statement or Prospectus that are not described as required or
of any contracts or documents of a character required to be
described in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement which are not
described and filed as required.
(xv) The Registration Statement and all
post-effective amendments thereto have become effective under
the Securities Act; any required filing of the Prospectus
pursuant to Rule 430A and Rule 424(b) has been made in the
manner and within the time period required by such rules. To
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and, to such counsel's knowledge, no
proceedings for that purpose have been instituted or
threatened or are contemplated by the Commission.
(xvi) The Company is not, and will not be as a result
of the consummation of the transactions contemplated by this
Agreement, an "investment company," or a company "controlled"
by an "investment company," within the meaning of the
Investment Company Act of 1940.
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.
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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 Xxxxxxx & Xxxxxxx, LLC,
letters dated, respectively, the date of this Agreement and the
effective date of the most recently filed post-effective amendment to
the Registration Statement and also at each Time of Delivery, in form
and substance satisfactory to you, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement
and the Prospectus.
(e) You shall have received at each Time of Delivery a
certificate or certificates of the President and Chief Executive
Officer and the Chief Financial Officer of the Company to the effect
that:
(i) the representations and warranties of the Company
in Section 1 of this Agreement are true and correct, as if
made at and as of the First Time of Delivery or the Subsequent
Time of Delivery, as the case may be, and the Company has
complied with all the agreements and covenants and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Time of Delivery and as to such other matters
as you may reasonably request;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been initiated or are pending, or to
their knowledge, contemplated under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A
of the Rules and Regulations have been made;
(iv) they have carefully examined the Registration
Statement and the Prospectus, and any amendments or
supplements thereto, and in his or her opinion, such documents
do not include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances under which they were made; and
(v) since the effective date of the Registration
Statement, there has occurred no event required to be set
forth in an amendment or supplement to the Registration
Statement or the Prospectus which has not been so set forth.
(f) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company nor the Bank shall have
sustained (i) any loss or
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interference with their respective businesses from fire, explosion,
flood, hurricane or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as disclosed in or contemplated by the
Prospectus, or (ii) any change, or any development involving a
prospective change (including without limitation a change in management
or control of the Company), in or affecting the position (financial or
otherwise), results of operations, net worth or business prospects of
the Company and the Bank, otherwise than as disclosed in or
contemplated by the Prospectus (including any amendment), the effect of
which, in either such case, is in your judgment so material and adverse
as to make it 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) Subsequent to the date hereof, there shall not have
occurred any of the following:
(i) any suspension or limitation in trading in
securities generally on the New York Stock Exchange or the
over-the-counter market (other than normal market breaks or
cooling periods), or any setting of minimum prices for trading
on such exchange, or if trading in any securities of the
Company has been suspended by the Commission, or limitations
on prices for trading (other than limitations on hours or
numbers of days of trading) have been fixed, or maximum ranges
for prices for securities have been required, by the Nasdaq
OTC Bulletin Board or the NASD or by order of the Commission
or any other governmental authority;
(ii) a moratorium on commercial banking activities in
New York declared by either federal or state authorities;
(iii) any major outbreak or major escalation of
hostilities involving the United States, declaration by the
United States of a national emergency (other than with respect
to natural disasters) or war or any other national or
international calamity or emergency or any material adverse
change in general economic, political or financial conditions
if the effect of any such event specified in this clause (iii)
in your judgment makes it impracticable or inadvisable to
proceed with the purchase, sale and delivery of the Shares
being delivered at such Time of Delivery as contemplated by
the Registration Statement.
(h) The Shares shall be approved for quotation on the Nasdaq
OTC Bulletin Board (or a stock exchange acceptable to the
Representative) when issued.
(i) The Company shall have furnished the Representative with
evidence of its receipt of each of the Regulatory Approvals.
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(j) The Representative shall have received the Lockup
Agreements as described in Section 1(v).
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each of
the Underwriters against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under
the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or
are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company in Section 1 of this Agreement;
(ii) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration
Statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, or
(B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company
filed in any jurisdiction in order to qualify the Shares under
the securities or blue sky laws thereof or filed with the
Commission or any securities association or securities
exchange (each an "Application"); or
(iii) the omission or alleged omission to state in
the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or any Application, a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each of
the Underwriters 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 of
the Underwriters expressly for inclusion in the Prospectus
beneath the headings "Underwriting" and "Shares Eligible For
Future Sale." The Company will not, without the prior written
consent of each of the Underwriters, 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
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(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 of the Underwriters agrees to indemnify and hold
harmless the Company and its officers, directors, agents,
representatives and affiliates against any losses, claims, damages or
liabilities to which the Company or its officers, directors, agents,
representatives and affiliates may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto or any Application, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by any of
the Underwriters through the Representative expressly for inclusion in
the Prospectus beneath the headings "Underwriting" and "Shares Eligible
For Future Sale." In addition, the Underwriters will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss,
claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
subsection (a) and (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission to so 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 to so assume the defense of an
action and
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approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified
party under this Section 8 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense of the action, unless:
(i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next
preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not
be liable for the expenses of more than one separate counsel
(in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances,
which separate counsel shall be designated by the
Representative in the case of indemnity arising under
paragraph (a) of this Section 8) or
(ii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense
of the indemnifying party.
Nothing in this Section 8(c) shall preclude an indemnified party from
participating at its own expense in the defense of any such action so
assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters 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
Underwriters on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters 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
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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 Underwriters shall not be required to contribute
any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls any of the Underwriters within the meaning of the
Securities Act. The obligations of the Underwriters under this Section
8 shall be in addition to any liability which the Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to
each officer and director of the Company and to each person, if any,
who controls the Company within the meaning of the Securities Act.
9. DEFAULT OF UNDERWRITERS.
(a) If any of the Underwriters 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 of the Underwriters 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 seven days in order to effect
whatever change is made necessary thereby in the Registration Statement
or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus that in your opinion may thereby be made
necessary. The cost of preparing, printing and filing any such
amendments shall be paid for by the Underwriters. The term
"Underwriter" as used
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in this Agreement shall include any person substituted under this
Section as if such person had originally been a party to this Agreement
with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed
one-eleventh of the aggregate number of Shares to be purchased at such
Time of Delivery, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of Shares which such
Underwriter agreed to purchase hereunder at such Time of Delivery and,
in addition, to require each non-defaulting Underwriter to purchase its
pro rata share (based on the number of Shares which such Underwriter
agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been
made, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. TERMINATION.
(a) This Agreement may be terminated with respect to the Firm
Shares or any Optional Shares in the sole discretion of the
Representative by notice to the Company given prior to the First Time
of Delivery or any Subsequent Time of Delivery, respectively, in the
event that:
(i) any condition to the obligations of the
Underwriters set forth in Section 7 hereof has not been
satisfied; or
(ii) the Company shall have failed, refused or been
unable to deliver the Shares or to perform all obligations and
satisfy all conditions on its part to be performed or
satisfied hereunder at or prior to such Time of Delivery, in
either case other than by reason of a default by any of the
Underwriters.
If this Agreement is terminated pursuant to this Section 10(a), the
Company will reimburse the Underwriters upon demand for all
out-of-pocket expenses (including counsel fees and disbursements) that
shall have been incurred by it in connection with the proposed purchase
and sale of the Shares. 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
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of the Underwriters to purchase and of the Company to sell the Optional
Shares) thereupon will terminate, without liability on the part of any
nondefaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 6
hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers and the
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 the Underwriters or any controlling person referred to
in Section 8(e) or made by or on behalf of the Company, or any officer or
director or controlling person of the Company referred to in Section 8(e), and
shall survive delivery of and payment for the Shares. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6, 8 and 13
hereof shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
12. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters, shall be mailed, delivered or faxed and confirmed in
writing to:
Wachovia Securities, Inc.
IJL Financial Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Investment Banking Department
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxx
Wachovia Securities, Inc.
Resurgens Plaza
000 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
and
Xxxxxxx X. Xxxxxxx, Esq.
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
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and if sent to the Company, shall be mailed, delivered or faxed and confirmed in
writing to:
SouthernBank Holdings, Inc.
0000 Xxxxxx Xxxxxxx
Xxxxx 0X
Xxxxxx, Xxxxxxx 00000
Attention: President and Chief Executive Officer
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
13. RIGHT OF FIRST REFUSAL. The Company grants to the Representative an
unconditional right of first refusal to serve as exclusive or lead advisor to
the Company on all corporate finance transactions undertaken or considered by
the Company on a normal and customary fee basis for three years from the
effective date of the Prospectus. The Representative shall not be entitled to
more than one payment or fee in exchange for the waiver or termination of this
right of first refusal, and any payment or fee to waive or terminate the right
of first refusal shall be paid in cash and will not exceed the greater of (a)
one percent (1%) of the aggregate purchase price of the Shares purchased
pursuant to this Agreement, and (b) five percent (5%) of the underwriting
discount or commission paid in connection with the future financing (including
any over-allotment option that may be exercised).
14. REPRESENTATIVE. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you will be binding upon all the Underwriters.
15. BINDING EFFECT. This Agreement shall be binding upon, and inure
solely to the benefit of, each of the Underwriters and the Company and to the
extent provided in Sections 8 and 10 hereof, the organizers, officers, directors
and controlling persons, as applicable, 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 merely by reason of such purchase.
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16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
provisions regarding conflicts of laws.
17. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
(Signatures Appear on Next Page)
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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 Wachovia Securities, Inc., this letter will constitute
a binding agreement among the Underwriters and the Company.
Very truly yours,
SOUTHERNBANK HOLDINGS, INC.
By:
--------------------------
Name: D. Xxxxxx Xxxxxxx, Xx.
Title: Chief Executive Officer
WACHOVIA SECURITIES, INC.
By:
----------------------
Name:
-------------------
Title:
------------------
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SCHEDULE I
SOUTHERNBANK HOLDINGS, INC.
1,250,000 SHARES
COMMON STOCK
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER OF TO BE PURCHASED
FIRM SHARES TO IF MAXIMUM
UNDERWRITER BE PURCHASED OPTION EXERCISED
----------- ------------ ----------------
Wachovia Securities, Inc.
Total
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