EXHIBIT 1.1
NETZEE, INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
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November __, 1999
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
X.X. XXXXXXXX & CO.
SUNTRUST EQUITABLE SECURITIES CORPORATION
As representatives of the several
Underwriters named in Schedule I hereto,
c/o The Xxxxxxxx-Xxxxxxxx Company, LLC
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Dear Sirs:
Upon and subject to the terms and conditions set forth below, (i)
Netzee, Inc., a Georgia corporation (the "Company"), proposes to issue and sell
to the Underwriters named in Schedule I (the "Underwriters") an aggregate of
4,000,000 shares of common stock, without par value ("Common Stock"), of the
Company (the "Company Firm Shares"), (ii) the shareholders of the Company named
in Schedule II hereto (the "Selling Shareholders") propose to sell to the
Underwriters an aggregate of 448,155 shares of Common Stock in the respective
amounts set forth opposite their names in Schedule II hereto (such shares
together with the Company Firm Shares, the "Firm Shares"), and (iii) at the
election of the Underwriters, the Company proposes to sell to the Underwriters
up to 667,223 additional shares of Common Stock (the "Optional Shares") (the
Firm Shares and the Optional Shares that the Underwriters elect to purchase
pursuant to Section 2 hereof are collectively called the "Shares").
1. (a) Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-87089)
with respect to the Shares, including a prospectus, has been filed by
the Company with, and has been declared effective by, the Securities
and Exchange Commission (the "Commission") under the Securities Act of
1933, as amended (the "Act"). After the execution of this Agreement,
the Company will file with the Commission, within the applicable
period specified in Rule 424(b) under the Act, a prospectus in the
form most recently included in an amendment to such registration
statement, with such changes or insertions as are required by Rule
430A or permitted by Rule 424(b) under the Act and as have been
provided to and approved by the Representatives. As used in this
Agreement, the term "Registration Statement" means such registration
statement, as amended at the time when it was declared effective,
including all financial statement schedules and exhibits thereto and
including any information omitted therefrom pursuant to Rule 430A
under the Act and included in the Prospectus (as hereinafter defined);
the term "Preliminary Prospectus" means each prospectus subject to
completion included in such registration statement or any amendment or
post-effective amendment thereto (including the prospectus subject to
completion, if any, included in the Registration Statement at the time
it was or is declared effective); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act or, if no prospectus is required to be so filed, such
term means the prospectus included in the Registration Statement. For
purposes of the following representations and warranties, to the
extent reference is made to the Prospectus and at the relevant time
the Prospectus is not yet in existence, such reference shall be deemed
to be to the most recent Preliminary Prospectus. If the Company has
filed or is required pursuant to the terms hereof to file a
Registration Statement pursuant to Rule 462(b) under the Act
registering additional shares of Common Stock (a "Rule 462(b)
Registration Statement"), such Rule 462(b) Registration Statement will
become effective no later than 10:00 p.m., Atlanta, Georgia time, on
the date of this Agreement. Unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include
such Rule 462(b) Registration Statement.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that
purpose has been instituted or, to the Company's knowledge, 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, to the Company's
knowledge, threatened or, to the knowledge of the Company,
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contemplated by the Commission or the securities authority of any
state or other jurisdiction.
(iii) When any Preliminary Prospectus was filed with the
Commission it (A) complied in all material respects with the
requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did 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 the light of the circumstances
under which they were made, not misleading. When the Registration
Statement (other than any Rule 462(b) Registration Statement to be
filed by the Company after the effectiveness of this Agreement) or any
amendment thereto, if applicable, was or is declared effective, and at
each Time of Delivery (as hereinafter defined), it (A) 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 (B) did not or will 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, if applicable, 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, (A) 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 (B) 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 the light of the
circumstances under which they were made, not misleading. If the
Company is required to file a Rule 462(b) Registration Statement after
the effectiveness of this Agreement, such Rule 462(b) Registration
Statement or any amendment thereto, if applicable, when it becomes
effective and at each Time of Delivery, (A) will contain all
statements required to be stated therein in accordance with, and will
comply in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder and (B) will
not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not
misleading. The representations and warranties made in the foregoing
provisions of this paragraph (iii) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration
Statement or any amendment thereto, the Prospectus or any amendment or
supplement thereto or any Rule 462(b) Registration Statement or any
amendment thereto in reliance upon and in conformity with written
information furnished to the Company by
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any Underwriter through you specifically for use therein. The
statistical and market-related data included in the Prospectus are
based on or derived from independent sources which the Company
believes to be reliable and accurate in all material respects or
represent the Company's good faith estimates that are made on the
basis of data derived from such sources.
(iv) There are no (A) contracts, instruments or other
documents or agreements that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement and are not so described or filed as
required, (B) laws, orders, judgments, decrees, rules or regulations
that are required to be described in the Registration Statement or the
Prospectus and are not so described as required, (C) pending or
threatened legal or governmental proceedings that are required to be
described in the Registration Statement or the Prospectus and are not
so described as required, or (D) relationships, direct or indirect,
between or among the Company, on the one hand, and the directors,
officers or shareholders of the Company on the other hand, that are
required to be described in the Registration Statement or the
Prospectus and are not so described as required; and all descriptions
thereof in the Registration Statement (including the statements under
Items 14 and 15 of Part II of the Registration Statement) and the
Prospectus are fair summaries thereof and fairly present the
information required to be disclosed with respect thereto under the
Act.
(v) Each of the Company and its subsidiaries has been duly
organized, is validly existing in good standing under the laws of its
jurisdiction of organization and has full corporate or limited
liability company power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and the Prospectus. The Company has full corporate power and
authority to enter into this Agreement and to perform its obligations
hereunder. Each of the Company and its subsidiaries 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 subsidiaries taken as a
whole.
(vi) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued and
outstanding shares of capital stock of the Company (including, without
limitation, the Shares to be sold by the Selling Shareholders) have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description of the Common Stock
contained in the Registration Statement and the Prospectus. None of
the issued
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shares of capital stock of the Company Direct Access Interactive, Inc.
("Direct Access") or any of its subsidiaries 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 subsidiaries) has any preemptive
or other rights to subscribe for any of the Shares.
(vii) All of the issued and outstanding shares of capital stock
of each of the Company's subsidiaries 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, except those security interests as disclosed in the
Prospectus. Other than the subsidiaries listed on Exhibit 21.1 to the
Registration Statement, 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.
(viii) Except as disclosed in the Prospectus and rights set
forth in the Antidilution Agreements between the Company and each TIB
The Independent Bankers Bank and The Bankers Bank (the "Bankers
Banks"), which terminate at the First Time of Delivery (the "Bankers
Banks' Antidilution Rights"), there are no outstanding (A) securities
or obligations of the Company or any of its subsidiaries convertible
into or exchangeable for any capital stock of the Company or any such
subsidiary, (B) warrants, rights or options to subscribe for or
purchase from the Company or any such subsidiary any such capital
stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any such subsidiary
to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights
or options.
(ix) Since the date of the most recent audited financial
statements included in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries 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.
(x) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (A) neither the
Company nor any of its subsidiaries has incurred any liabilities or
obligations, direct or contingent, or entered into any transactions,
not in the ordinary course of business,
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that are material to the Company and its subsidiaries taken as a
whole, (B) 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, (C) there has not been
any change in the capital stock, or material change in the long-term
debt or short-term debt of the Company or any of its subsidiaries, and
(D) 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 subsidiaries, in each case other than as disclosed in or
contemplated by the Prospectus.
(xi) The Shares to be issued and sold by the Company have been
duly authorized for issuance and sale pursuant to this Agreement and,
when issued and delivered by the Company against payment therefor as
provided herein, will be validly issued, fully paid and nonassessable
and will conform to the description of the Common Stock contained in
the Prospectus and the issuance thereof will not be subject to any
preemptive or similar rights; the certificates evidencing the Shares
will comply with all applicable requirements of Georgia law; and the
Shares have been approved for listing on the Nasdaq National Market,
subject to notice of issuance.
(xii) Except as disclosed in the Registration Statement and the
Prospectus and except for registration rights granted in favor of the
Bankers Banks and Sirrom Investments, Inc., which terminate upon the
First Time of Delivery, (A) 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 or to
require the Company to include any 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 and (B) neither the filing of the Registration Statement
nor the offering or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the registration
of any securities of the Company.
(xiii) All offers and sales of the Company's capital stock and
its predecessors prior to the date hereof were at all relevant times
exempt from the registration requirements of the Act by reason of
Sections 3(b) or 4(2) thereof and were the subject of an available
exemption from the registration requirements of the applicable state
securities or blue sky laws.
(xiv) Neither the Company nor any of its subsidiaries is, or
with the giving of notice or passage of time or both would be, (A) in
violation of its
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Articles of Incorporation, Bylaws or Operating Agreement, as
appropriate, or (B) in default under any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or any of their respective
properties or assets are subject, except, in the case of clause (B),
such defaults that would not have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(xv) The execution of this Agreement, the issue and sale of
the Shares to be issued and sold by the Company under this Agreement,
the sale of the Shares to be sold by the Selling Shareholders under
this Agreement the performance of this Agreement by the Company and
the Selling Shareholders and the consummation of the other
transactions herein contemplated will not (A) 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, or result in the creation or imposition of
any Lien upon any property or assets of the Company pursuant to, any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or to which any of their respective properties
or assets is subject, (B) conflict with or violate any provision of
the Articles of Incorporation Bylaws or Operating Agreement of the
Company or any of its subsidiaries or (C) conflict with or violate any
provision of any constitution, statute, rule or regulation or any
order, judgment or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties or assets, except, in the case of
clauses (A) and (C), such breach, violation, default or Lien that
would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
(xvi) Each of the Company and its subsidiaries has all such
licenses, certificates, authorizations, consents, exemptions,
qualifications, franchises, permits and other approvals (each, an
"Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals as are necessary to
own, lease, license and operate its assets and properties and to
conduct its business, except any such Authorization, filing or notice,
the failure of which to hold or make would not have a material adverse
effect on the Company and its subsidiaries taken as a whole. Each such
Authorization is valid and in full force and effect, and the Company
is in compliance, in all material respects, with all the terms and
conditions thereof and with the applicable rules and regulations of
the authorities and governing bodies having jurisdiction with respect
thereto, except any such noncompliance that would not have a material
adverse effect on the Company and its subsidiaries taken as a whole;
and no event has occurred
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(including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of
time or both, would allow revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or
both, would result in any other impairment of the rights under any
such Authorization, except such revocation, suspension, termination or
impairment that would not have a material adverse effect on the
Company and its subsidiaries taken as a whole; and no such
Authorization contains any restriction that is materially burdensome
to the Company.
(xvii) The Company and its subsidiaries do not own any real
property, and have 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
affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company or any of its subsidiaries 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 use made or proposed to be made of such property and
buildings by the Company or such subsidiary.
(xviii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required on the part of
the Company for the 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.
(xix) There is no litigation, arbitration, claim, proceeding
(formal or informal) or investigation pending or, to the Company's
knowledge, threatened (or any basis therefor) in which the Company or
any of its subsidiaries is a party or of which any of their respective
properties or assets are the subject which, if determined adversely to
the Company or any such 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 subsidiaries
taken as a whole. Neither the Company nor any of its subsidiaries is
in violation of, or in default with respect to, any statute, rule,
regulation, order, judgment or decree, except as described in the
Prospectus or such as do not and will not individually or in the
aggregate have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiaries
taken as a whole, and
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neither the Company nor any of its subsidiaries is bound by any order,
judgment or decree.
(xx) Xxxxxx Xxxxxxxx LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries, are and
were, during the periods covered by their reports included in the
Registration Statement and the Prospectus, independent public
accountants as required by the Act and the rules and regulations of
the Commission thereunder.
(xxi) The consolidated financial statements together with
related notes and schedules of the Company and its consolidated
subsidiaries included in the Registration Statement, the Prospectus or
any Preliminary Prospectus were prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods involved and fairly present the financial position and results
of operations of the Company and its subsidiaries, on a consolidated
basis, at the dates and for the periods presented; all adjustments
necessary for a fair presentation of results for such periods have
been made; the selected financial information included under the
captions "Summary -- Summary Financial Information" and "Selected
Financial Information" in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) present fairly
the information shown therein and have been compiled on a basis
consistent with the financial statements presented therein; the pro
forma financial statements and related notes thereto included in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) present fairly the information shown therein, have
been prepared in accordance with the Act and the Commission's rules
and guidelines with respect to pro forma financial statements, have
been prepared on a basis consistent with the historical financial
statements of the Company, have been compiled on the pro forma bases
described therein, and (x) the assumptions underlying the pro forma
adjustments are reasonable, (y) such adjustments are appropriate to
give effect to the transactions or circumstances referred to therein
and have been properly applied to the historical amounts in the
compilation of such statements and (z) such statements fairly present
the pro forma financial position and results of operations and other
information purported to be shown therein at the respective dates or
for the respective periods therein specified; the supporting
schedules, if any, included in the Registration Statement present
fairly in accordance with generally accepted accounting principles the
information required to be stated therein; and the other financial and
statistical information and data respecting the Company set forth in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company. No other
financial statements, supporting schedules or other financial
information (whether
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pro forma financial statements or otherwise) are required to be
included in the Registration Statement or the Prospectus. As of the
date of the Prospectus, the Company is not engaged in substantive
discussions with any third party with respect to, or obligated to
complete, any acquisitions for which disclosure of pro forma financial
information in the Registration Statement and the Prospectus is
required by the Act.
(xxii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xxiii) Neither the Company nor any of its officers, directors
or affiliates has (A) 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 (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xxiv) The Company has obtained for the benefit of the Company
and the Underwriters from each of its directors, officers, Selling
Shareholders and each shareholder listed on Annex II hereto (each, an
"Executing Shareholder") a written agreement (each, a "Lock-Up
Agreement") that for a period of 180 days from the date of the
Prospectus such director, officer or shareholder will not, without
your prior written consent, (A) directly or indirectly make, agree to
or cause any offer, sale (including short sale), loan, pledge or other
disposition of, or grant any options, rights or warrants to purchase
with respect to, or otherwise transfer or reduce any risk of ownership
of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for Common
Stock; (B) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the
ownership of the Common Stock; (C) make any demand for, or exercise
any right with respect to, the registration of shares of Common Stock
or any securities convertible into or exchangeable or exercisable for
Common Stock; provided, however that during such period, each
Executing Shareholder may transfer shares of Common Stock pursuant to
a bona fide gift; provided that any recipient of Common Stock pursuant
to any such gift shall, prior to such recipient's receipt thereof,
agree in writing to be bound by all of the restrictions contained in
such Executing Shareholder's Lock-Up Agreement until 180 days after
the date of the Prospectus.
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(xxv) The Company has not violated any federal, state, local or
foreign law, order, judgment, decree, rule or regulation (including,
without limitation, any such law, order, judgment, decree, rule or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations
thereunder ("ERISA"), or the Foreign Corrupt Practices Act and the
rules and regulations thereunder), except for such violations which
would not, individually or in the aggregate, have material adverse
effect on the financial position, results or operations or business of
the Company and its subsidiaries taken as a whole. The Company has no
material liability (contingent or otherwise) in connection with any
Environmental Law or the release into the environment of any substance
regulated by any Environmental Law.
(xxvi) The Company and its subsidiaries own or have the right
to use all patents, patent applications, trademarks, trademark
applications, tradenames, service marks, copyrights, franchises, trade
secrets, proprietary or other confidential information and intangible
properties and assets (collectively, "Intangibles") necessary to
operate their respective businesses as presently conducted or as the
Prospectus indicates the Company or such subsidiary proposes to
conduct; to the Company's knowledge, neither the Company nor any
subsidiary has infringed or is infringing, and neither the Company nor
any subsidiary has received notice of infringement with respect to,
asserted Intangibles of others; and, to the knowledge of the Company,
there is no infringement by others of Intangibles of the Company or
any of its subsidiaries.
(xxvii) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a comparable cost, except as
disclosed in the Prospectus.
(xxviii) Each of the Company and its subsidiaries makes and
keeps accurate books and records reflecting its assets and maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as
necessary to permit preparation of the Company's consolidated
financial statements in accordance with generally accepted accounting
principles and to maintain accountability for the assets of the
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Company, (C) access to the assets of the Company and each of its
subsidiaries is permitted only in accordance with management's
authorization, (D) the recorded accountability for assets of the
Company and each of its subsidiaries is compared with existing assets
at reasonable intervals and appropriate action is taken with respect
to any differences; and (E) such controls would prevent or detect
errors or irregularities in amounts that would be material to the
Company.
(xxix) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distributions on such subsidiary's capital stock,
from repaying to the Company any loans or advances to such subsidiary
or from transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, except as
disclosed in the Prospectus.
(xxx) The Company and its subsidiaries have filed all foreign,
federal, state and local income, franchise tax and other tax returns
that are required to be filed by them and have paid all taxes
(including, without limitation, withholding taxes) shown as due on
such returns as well as all other taxes, assessments and governmental
charges (including, without limitation, all penalties and interest)
that are due and payable; and no deficiency with respect to any such
return has been assessed or proposed.
(xxxi) The Company is not, will not become as a result of the
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 (the
"Investment Company Act").
(xxxii) The Company has previously disclosed and delivered or
made available to the Representatives copies of all pension,
retirement, profit-sharing, deferred compensation, stock option,
employee stock ownership, severance pay, vacation, bonus or other
incentive plans, all other written employee programs, arrangements or
agreements, all medical, vision, dental or other health plans, all
life insurance plans and all other employee benefit plans or fringe
benefit plans, including, without limitation, "employee benefit plans"
as that term is defined in Section 3(3) of ERISA, adopted, maintained,
sponsored in whole or in part, or contributed to by the Company, its
predecessors or any subsidiary of the Company or its predecessors for
the benefit of employees, retirees, dependents, spouses, directors,
independent contractors or other beneficiaries and under which
employees, retirees, dependents, spouses, directors, independent
contractors or other beneficiaries are eligible to participate
(collectively, the "Company Benefit Plans").
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The Company and each predecessor of the Company or a subsidiary
of the Company that adopted or contributed to a Company Benefit Plan
have maintained all Company Benefit Plans (including, without
limitation, filing all reports and returns required to be filed with
respect thereto) in accordance with their terms and in compliance with
the applicable terms of ERISA and the Internal Revenue Code of 1986,
as amended, and the rules and regulations thereunder (the "Code"),
except where the failure to do so would not, individually or in the
aggregate, have a material adverse effect on the financial position,
results of operations or business of the Company and its subsidiaries.
Each Company Benefit Plan which is intended to be qualified under
Section 401(a) of the Code has either received a favorable
determination letter from the Internal Revenue Service, timely
requested such a letter or relies upon an opinion letter from the
Internal Revenue Service with respect to the qualified status of any
non-individually designed plan and has at all times been maintained in
accordance with Section 401 of the Code, except where any failure to
receive or seek such a favorable determination letter or so maintain
such Company Benefit Plan would not, individually or in the aggregate,
have a material adverse effect on the financial position, results of
operations or business of the Company and its subsidiaries. The
Company has not engaged in a transaction with respect to any Company
Benefit Plan that would subject the Company to a tax or penalty
imposed by either Section 4975 of the Code or Section 502(i) of ERISA,
except for any such transaction, tax or penalty which would not,
individually or in the aggregate, have a material adverse effect on
the financial position, results of operations or business of the
Company and its subsidiaries.
Except as required pursuant to Code Section 4980B and ERISA
Section 609 et. seq., the Company is not obligated to provide post-
retirement medical benefits or any other unfunded post-retirement
welfare benefits, except for the provisions of any such benefits which
would not, individually or in the aggregate, have a material adverse
effect on the financial position, results of operations or business of
the Company and its subsidiaries. Neither the Company nor any member
of a group of trades or businesses under common control (as defined in
ERISA Sections 4001(a)(14) and 4001(b)(1)) with the Company have at
any time within the last six years sponsored, contributed to or been
obligated under Title I or IV of ERISA to contribute to a "defined
benefit plan" (as defined in ERISA Section 3(35)). Within the last six
years, neither the Company nor any member of a group of trades or
businesses under common control (as defined in ERISA Sections
4001(a)(14) and 4001(b)(1)) with the Company have had an "obligation
to contribute" (as defined in ERISA Section 4212) to a "multiemployer
plan" (as defined in ERISA Sections 4001(a)(3) and 3(37)(A)).
-13-
(xxxiii) The Company has reviewed its operations and has made
the assessments and undertaken the actions described under the caption
"Year 2000 Readiness" in the Prospectus with respect to the operations
of any third parties with which the Company has a material
relationship to evaluate the extent to which the business or
operations of the Company will be affected by the Year 2000 Problem
(as defined below). As a result of such review, the Company has no
reason to believe, and does not believe, that the Year 2000 Problem
will have a material adverse effect on the financial position, results
of operations or business of the Company and its subsidiaries. The
"Year 2000 Problem" as used herein means any risk that the computer
hardware or software used in the receipt, transmission, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters at any
Time of Delivery Date shall be deemed to be a representation and
warranty by the Company to the Underwriters as to the matters covered
thereby.
(b) Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder, severally, and not jointly, represents and warrants to, and
agrees with, each of the several Underwriters and the Company that:
(i) Such Selling Shareholder has full corporate power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement (as hereinafter defined) and to sell, assign,
transfer and deliver to the Underwriters the Shares to be sold by such
Selling Shareholder hereunder; the execution and delivery of this
Agreement, the Power of Attorney and the Custody Agreement have been
duly authorized by all necessary action of such Selling Shareholder;
such Selling Shareholder has duly executed and delivered this
Agreement, the Power of Attorney and the Custody Agreement; and each
of this Agreement, the Power of Attorney and the Custody Agreement is
a valid and binding agreement of such Selling Shareholder, enforceable
in accordance with its terms.
(ii) No consent, approval, authorization, order or declaration
of or from, or registration, qualification or filing with, any court
or governmental agency or body is required for the sale of the Shares
to be sold by such Selling Shareholder or the consummation of the
transactions contemplated by this Agreement, the Power of Attorney or
the Custody Agreement, except the
-14-
registration of such 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 such Shares by the Underwriters.
(iii) The sale of the Shares to be sold by such Selling
Shareholder under this Agreement and the execution, delivery and
performance of this Agreement, the Power of Attorney and the Custody
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with, or (with or without the giving of
notice or the passage of time or both) result in a breach of 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 such Selling Shareholder or any of
its subsidiaries 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 or
other governing instruments of such Selling Shareholder or any of its
subsidiaries or any constitution, statute, rule or regulation or any
order, judgment or decree of any court or governmental agency or body
having jurisdiction over such Selling Shareholder or any of such
Selling Shareholder's properties or assets.
(iv) Such Selling Shareholder has, and immediately prior to the
First Time of Delivery (as defined in Section 4 hereof), such Selling
Shareholder will have, good and valid title to the Shares to be sold
by such Selling Shareholder hereunder, free and clear of all
restrictions on transfer, liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting trusts,
equities or claims of any nature whatsoever; and, upon delivery of
such Shares against payment therefor as provided herein, good and
valid title to such Shares, free and clear of all liens, security
interests, pledges, charges, encumbrances, defects, shareholders'
agreements, voting trusts, equities or claims of any nature
whatsoever, will pass to the several Underwriters.
(v) Neither such Selling Shareholder nor any of its officers,
directors or affiliates has (A) 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 (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(vi) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Shareholder hereunder have been
placed in
-15-
custody under a Custody Agreement, in the form heretofore furnished to
and approved by the Representatives, duly executed and delivered by
such Selling Shareholder to SunTrust Bank, Inc., as custodian (the
"Custodian"). Such Selling Shareholder has duly executed and delivered
a Power of Attorney, in the form heretofore furnished to and approved
by the Representatives, appointing the persons indicated in Schedule
II hereto as such Selling Shareholder's attorneys-in-fact (the
"Attorneys-in-Fact") with authority to execute and deliver this
Agreement on behalf of such Selling Shareholder, to determine the
purchase price to be paid by the Underwriters to the Selling
Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder
in connection with the transactions contemplated by this Agreement and
the Custody Agreement.
(vii) The information in the Registration Statement under the
caption "Principal and Selling Shareholders" which specifically
relates to the undersigned does not, and will not on the date of the
execution of the Underwriting Agreement or on the First Time of
Delivery, contain 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, in the light of the circumstances under
which they were made, not misleading, and if there is any change in
the information referred to in this paragraph, the undersigned will
immediately notify you of such change.
Each certificate signed by or on behalf of such Selling
Shareholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by
such Selling Shareholder to the Underwriters as to the matters covered
thereby.
In order to document the Underwriters' compliance with the reporting
and withholding provisions of the Code with respect to the transactions herein
contemplated, each of the Selling Shareholders agrees to deliver to the
Representatives prior to or at the First Time of Delivery (as hereinafter
defined) a properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
Each of the Selling Shareholders specifically agrees that the Shares
represented by the certificates held in custody for such Selling Shareholder
under the Custody Agreement are subject to the interests of the Underwriters
hereunder, and that the arrangements made by such Selling Shareholder for such
custody, and the appointment by such Selling Shareholder of the Attorneys-in-
Fact by the Power of Attorney, are irrevocable. Each of the Selling Shareholders
specifically agrees that the obligations of
-16-
the Selling Shareholders hereunder shall not be terminated by operation of law,
whether in the case of a partnership or corporation, by the dissolution of such
partnership or corporation or by the occurrence of any other event.
2. Purchase and Sale of Shares. Subject to the terms and conditions
herein set forth, (a) the Company and each Selling Shareholder agree, severally
and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company and
each Selling Shareholder, at a purchase price of $________ per share, the number
of Firm Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Shares to be sold by the
Company and the Selling Shareholders as set forth opposite their respective
names in Schedule II hereto by a fraction, the numerator of which is the
aggregate number of Firm Shares to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto, and the denominator
of which is the aggregate number of Firm Shares to be purchased by the
Underwriters from the Company and the Selling Shareholders hereunder and (b) 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 sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been 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.
Subject to the terms and conditions herein set forth, 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 667,223 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. 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 (i.e. on a "T+3" basis in accordance with the Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act")). 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,
-17-
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 Xxxxxxxx-Xxxxxxxx Company, LLC
may request upon at least 48 hours' prior notice to the Company and the
Attorneys-in-Fact, shall be delivered by or on behalf of the Company and the
Selling Shareholders to you through the facilities of the Depository Trust
Company ("DTC") for the account of such Underwriter, against payment by such
Underwriter on its behalf of the purchase price therefor by wire transfer of
immediately available funds, payable to the order of the Company and the
Custodian, as their interests may appear. The closing of the sale and purchase
of the Shares shall be held at the offices of Xxxxxx & Bird LLP, 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, except that physical delivery of such
certificates shall be made at the office of DTC, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, or its designated custodian. The time and date of such delivery and
payment shall be, with respect to the Firm Shares, at 9:00 a.m., Atlanta time,
on November ___, 1999 or at such other time and date as you and the Company and
the Attorneys-in-Fact, on behalf of the Selling Shareholders, may agree upon in
writing, and, with respect to the Optional Shares, at 9:00 a.m., Atlanta 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 any 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 the office of DTC or its
designated custodian in New York, New York or at such other location in New
York, New York specified by you in writing at least 48 hours prior to such Time
of Delivery.
5. (a) Covenants of the Company. The Company covenants and agrees
with each of the Underwriters:
(i) The Company will file the Prospectus with the Commission in
the manner and within the time period required by Rule 424(b). The
Company will advise you promptly of any such filing pursuant to Rule
424(b).
-18-
(ii) The Company will not file with the Commission the
Prospectus, 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 the Prospectus or any such
proposed amendment or supplement and consented to the filing thereof.
Upon the request of the Representatives or counsel for the
Underwriters, 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 in the good
faith opinion of the Representatives, advisable in connection with the
distribution of the Shares by the several 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 Representatives, promptly after receiving notice thereof, of the
time when any amendment to the Registration Statement, or when any
Rule 462(b) Prospectus or any amendment thereto, has been filed or
declared effective or when the Prospectus or any amendment or
supplement thereto has been filed and will provide evidence to the
Representatives of each such filing or effectiveness.
(iii) The Company will advise you promptly after receiving
notice or obtaining knowledge of (A) 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, (B) 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 (C) 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.
(iv) 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
-19-
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 the Underwriter making such request, 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
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7.
(v) 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 a dealer in
securities or to file a general consent to service of processor to
render the Company subject to any franchise or other taxes other than
consent to service of process or the subjection to any franchise or
other taxes as to matters and transactions related to the Prospectus,
the Registration Statement, any Preliminary Prospectus or the offering
or sale of the Shares, in any jurisdiction in which it is not now
subject.
(vi) The Company will promptly provide you, without charge,
(A) three manually executed copies of the Registration Statement as
originally filed with the Commission and of each amendment thereto,
(B) for each other Underwriter a conformed copy of the Registration
Statement as originally filed and of each amendment thereto, without
exhibits, and (C) 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.
(vii) As soon as practicable, but in any event not later than
90 days after the end of the first quarter ending after one year
following 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 subsidiaries, if any,
covering a period of at least 12 months beginning after the effective
date of
-20-
the Registration Statement (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations thereunder, and
advise you in writing when such statement has been so made available.
(viii) 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 the prior written consent of
The Xxxxxxxx-Xxxxxxxx Company, LLC ("Xxxxxxxx Xxxxxxxx"), directly or
indirectly make, agree to or cause any offer, sale (including short
sale), loan, pledge or other disposition of, or grant any options,
rights or warrants to purchase with respect to, or otherwise transfer
or reduce any risk of ownership of, directly or indirectly, or file
any registration statement with respect to the registration of any
shares of Common Stock or any securities convertible into or
exchangeable or exercisable for Common Stock, except as provided in
Section 2 and except that the Company may (A) grant awards pursuant to
the Company's existing incentive plans and may issue shares of Common
Stock upon the exercise of such awards, (B) issue shares of Common
Stock upon the exercise of any option or warrant outstanding and
approved by the Company's Board of Directors on the date hereof
(C) issue shares of Common Stock to be used as the purchase price for
any acquisition of another business; provided, that any recipient of
Common Stock in any such acquisition shall, prior to such recipient's
receipt thereof, agree in writing to be bound by all of the
restrictions applicable to the Company in this paragraph, (D) file a
registration statement on Form S-8 under the Act within 90 days after
the completion of offering of the Shares contemplated hereby with
respect to up to __________ shares of Common Stock issuable or
reserved for issuance under the Company's 1999 Stock Option and
Incentive Plan, and (E) register shares pursuant to registration
rights in favor of the Bankers Banks.
(x) The Company shall, prior to or concurrently with the
execution of this Agreement, deliver a Lock-Up Agreement executed by
each Executing Shareholder to the effect that such person will not,
during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the Prospectus,
without the prior written consent of Xxxxxxxx-Xxxxxxxx or pursuant to
Section 2 hereof, (A) directly or indirectly make, agree to or cause
any offer, sale (including short sale), loan, pledge or other
disposition of, or grant any options, rights or warrants to purchase
with respect to, or otherwise transfer or reduce any risk of ownership
of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for Common
Stock; (B) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the
ownership of the Common Stock; or (C) make any demand for, or exercise
any right with respect to, the registration of shares of Common Stock
or any securities
-21-
convertible into or exchangeable or exercisable for Common Stock.
Notwithstanding the immediately preceding sentence, during such
period, each Executing Shareholder may transfer shares of Common Stock
pursuant to a bona fide gift; provided that any recipient of Common
Stock pursuant to any such gift shall, prior to such recipient's
receipt thereof, agree in writing to be bound by all of the
restrictions contained in such Executing Shareholder's Lock-Up
Agreement until 180 days after the date of the Prospectus.
(xi) During a period of five years from the effective date of
the Registration Statement, the Company will furnish to you and, upon
request, to each of the other Underwriters, without charge, (A) copies
of all reports or other communications (financial or other) furnished
to shareholders, (B) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange, and (C) such
additional information concerning the business and financial condition
of the Company and its subsidiaries, if any, as you may reasonably
request from time to time, other than any report or other
communication that has been filed with the Commission under its XXXXX
System and that is publicly available.
(xii) Neither the Company nor any of its officers, directors or
affiliates will (A) take, directly or indirectly, prior to the
termination of the underwriting syndicate contemplated by this
Agreement, 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, (B) sell, bid for, purchase
or pay anyone any compensation for soliciting purchases of, the Shares
or (C) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(xiii) The Company will apply the net proceeds from the
offering substantially in the manner set forth under "Use of Proceeds"
in the Prospectus but in no event to invest or otherwise use the net
proceeds from the offering in such a manner as would require the
Company to register as an "investment company" within the meaning of
the Investment Company Act.
(xiv) The Company will use its best efforts to cause the Shares
be listed on the Nasdaq National Market at each Time of Delivery and
for at least three years from the date hereof.
(xv) If the Registration Statement at the time of the
effectiveness of this Agreement does not cover all of the Shares, the
Company will file a Rule 462(b) Registration Statement with the
Commission registering the Shares not so
-22-
covered in compliance with Rule 462(b) by 10:00 p.m., Atlanta time, on
the date of this Agreement and will pay to the Commission the filing
fee for such Rule 462(b) Registration Statement at the time of the
filing thereof or to give irrevocable instructions for the payment of
such fee pursuant to Rule 111(b) under the Act.
(xvi) The Company will file with the Commission, from time to
time after the effective date of the Registration Statement, such
reports as are required by the Act (including, without limitation,
Rule 463 of the Commission under the Act or any successor provision),
Exchange Act, and the rules and regulations of the Commission
thereunder, and will also file with the securities commissions in
jurisdictions where the Shares have been sold by any Underwriter any
such reports as are required to be filed by the securities acts and
the regulations of those jurisdictions.
(xvii) If at any time during the period beginning on the date
the Registration Statement becomes effective and ending on the later
of (A) the date 30 days after such effective date and (B) the date
that is the earlier of (1) the date on which the Company first files
with the Commission a Quarterly Report on Form 10-Q after such
effective date and (2) the date on which the Company first issues a
quarterly financial report to shareholders after such effective date,
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 an amendment of or supplement to the Prospectus), the
Company will, after written notice from you advising the Company to
the effect set forth above, 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.
(xviii) The Company will maintain a transfer agent, and if
necessary under the laws of the State of Georgia, a registrar for the
Shares.
(b) Covenants of the Selling Shareholders. Each Selling Shareholder
covenants and agrees with each of the Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, such Selling Shareholder will not, without the prior
written consent of The Xxxxxxxx-Xxxxxxxx Company, LLC or pursuant to
Section 2 hereof, (A) directly or indirectly make, agree to or cause
any offer, sale (including short sale), loan, pledge or other
disposition of, or grant any options, rights or warrants to purchase
-23-
with respect to, or otherwise transfer or reduce any risk of ownership
of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for Common
Stock; (B) enter into any swap or other arrangement that transfers all
or a portion of the economic consequences associated with the
ownership of the Common Stock; or (C) make any demand for, or exercise
any right with respect to, the registration of shares of Common Stock
or any securities convertible into or exchangeable or exercisable for
Common Stock.
(ii) Neither such Selling Shareholder nor any of its officers,
directors or affiliates will (A) take, directly or indirectly, prior
to the termination of the underwriting syndicate contemplated by this
Agreement, 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, (B) sell, bid for, purchase
or pay anyone any compensation for soliciting purchases of, the Shares
or (C) pay to or agree to pay any person any compensation for
soliciting another to purchase any other securities of the Company.
(iii) Such Selling Shareholder will pay or to cause to be
paid all transfer or other taxes payable in connection with the
transfer and delivery of the Shares to be sold by such Selling
Shareholder.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of the Company's and each of the Selling Shareholders'
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 Act and all other
expenses in connection with the preparation, printing and, if applicable, 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; (c) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Shares; (d) the preparation, issuance and delivery to 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 or blue sky laws, including all filing fees; (f) any
listing of the Shares on the National Association Securities Dealers Automated
Quotation National Market System, (g) the fees and disbursements of counsel for
the Underwriters in connection with the review and clearance by the National
Association of Securities Dealers, Inc., of the underwriting and underwriters'
compensation terms and
-24-
arrangements and the qualification of the Shares for offering and sale under
state securities or blue sky laws, and the clearance by the Commission and the
National Association of Securities Dealers, Inc., of the directed share offering
to the shareholders of The InterCept Group, Inc. and (h) 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. The provisions of this
Section 6 shall not supersede or otherwise affect any agreement that the Company
and the Selling Shareholders may otherwise have for allocation of such expenses
among themselves.
7. Conditions of the Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase and pay for the Shares to
be delivered at each Time of Delivery shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
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 and the Selling Shareholders of their
respective covenants and agreements hereunder, and to the following additional
conditions precedent:
(a) All filings required by Rule 424, Rule 430A, Rule 434 or Rule
462(b) under the Act, if applicable, shall have been duly made; if the Company
is required to file a Rule 462(b) Registration Statement after the effectiveness
of this Agreement, such Rule 462(b) Registration Statement shall have been
declared effective not later than 11:00 a.m., Atlanta time, on the date of this
Agreement or such later date and 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, or to the knowledge of
the Company and the Representatives, threatened or 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) Xxxxxx & Bird LLP, 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
-25-
may reasonably request, 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
Xxxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the Company, in form and substance
satisfactory to you and your counsel, to the effect that:
(i) The Company was duly organized as a corporation, and is
existing and in good standing, under the laws of the State of Georgia and
has the corporate power to execute and deliver this Agreement, to perform
its obligations hereunder, to own and use its properties and to conduct its
business as described in the Registration Statement and the Prospectus.
The Company is 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 subsidiaries.
(ii) Each of the subsidiaries of the Company was duly organized,
and is existing, and in good standing, under the laws of its jurisdiction
of organization and has the corporate or limited liability company power to
own and use its properties and to conduct its business as described in the
Registration Statement and the Prospectus. Each such subsidiary is
qualified to transact business as a foreign corporation or limited
liability company, as appropriate, 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
subsidiaries.
(iii) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued and outstanding
shares of capital stock of the Company (including the Shares to be sold by
the Selling Shareholders) have been duly authorized and validly issued, are
fully paid and nonassessable and conform in all material respects to the
description of the Common Stock contained in the Registration Statement and
the Prospectus. None of the issued shares of capital stock of the Company
or Direct Access or any of its subsidiaries 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 subsidiaries) has any preemptive or other rights to
subscribe for any of the Shares.
-26-
(iv) All of the issued and outstanding shares or units, as
appropriate, of capital stock of each of the Company's subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable,
and, to such counsel's knowledge, are owned beneficially by the Company
free and clear of all liens, security interests, pledges, charges,
encumbrances, shareholders' agreements, voting trusts, defects, equities or
claims of any nature whatsoever, except as disclosed in the Prospectus. To
such counsel's knowledge, other than the subsidiaries listed on Exhibit
21.1 to the Registration Statement, 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.
(v) Except as disclosed in the Prospectus and the Bankers Banks'
Antidilution Rights, there are no outstanding (A) securities or obligations
of the Company or any of its subsidiaries convertible into or exchangeable
for any capital stock of the Company or any such subsidiary, (B) warrants,
rights or options to subscribe for or purchase from the Company or any such
subsidiary any such capital stock or any such convertible or exchangeable
securities or obligations, or (C) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
options. All such securities, obligations, warrants and options described
in (A), (B) and (C) above have been duly authorized by the Company's Board
of Directors.
(vi) The Shares to be issued and sold by the Company have been
duly authorized for issuance and sale pursuant to this Agreement and, when
issued and delivered by the Company against payment therefor as provided
herein, will be validly issued, fully paid and nonassessable and will
conform in all material respects to the description of the Common Stock
contained in the Prospectus, and the issuance thereof will not be subject
to any preemptive or, to such counsel's knowledge similar rights; the
certificates evidencing the Shares comply with all applicable requirements
of Georgia law, the Articles of Incorporation and Bylaws of the Company,
and The Nasdaq Stock Market; and the Common Stock has been registered under
the Exchange Act, and approved for inclusion on The Nasdaq Stock Market's
National Market subject to notice of issuance.
(vii) Except as disclosed in the Registration Statement and
the Prospectus, (A) there are no contracts, agreements or understandings
known to such counsel 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 or to require
the Company to include any
-27-
securities in the securities registered pursuant to the Registration
Statement (or any such right has been effectively waived) or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act and (B) the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated by this
Agreement gives rise to any rights for or relating to the registration of
any securities of the Company.
(viii) All offers and sales of capital stock of the Company
and its predecessors prior to the date hereof were exempt from the
registration requirements of the Act by reason of Sections 3(b) and 4(2)
thereof and were the subject of an available exemption from the
registration requirements of the applicable state securities or blue sky
laws.
(ix) Neither the Company nor any of its subsidiaries is, or with
the giving of notice or passage of time or both, would be, (A) in violation
of its Articles of Incorporation, Bylaws or Operating Agreement or (B) in
default under any indenture, mortgage, deed of trust, loan agreement, lease
or other agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any of its subsidiaries or
any of their respective properties or assets is subject and which is filed
as an exhibit to the Registration Statement (each, a "Material Agreement"),
except, in the case of clause (B), such defaults that would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(x) The execution of this Agreement did not, 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 other transactions herein
contemplated will not, (A) (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, or result in the
creation or imposition of any Lien upon any property or assets of the
Company pursuant to, any Material Agreement, (B) violate any provision of
the Articles of Incorporation, Bylaws or Operating Agreement of the Company
or any of its subsidiaries or (C) violate any provision of any
constitution, statute, rule or regulation or any order, judgment or decree
of any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective properties or
assets, except, in the case of clauses (A) and (C),.such breach, violation,
default or Lien that would not have a material adverse effect on the
Company and its subsidiaries taken as a whole.
(xi) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good title to all personal
-28-
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 affect the value of such property and do not interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company or any of its subsidiaries are held by the Company or such
subsidiary 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 use made and proposed to be made of such property
and buildings by the Company or such subsidiary.
(xii) No consent, approval, authorization, order or declaration
of or from, or registration, qualification or filing with, any court or
governmental agency or body on the part of the Company 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.
(xiii) Except as disclosed in the Registration Statement and
the Prospectus, to such counsel's knowledge there is no litigation,
arbitration, claim, proceeding (formal or informal) or investigation
pending or threatened (or any basis therefor) in which the Company or any
of its subsidiaries is a party or of which any of their respective
properties or assets is the subject which, if determined adversely to the
Company or any such 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 subsidiaries taken as a whole; to such
counsel's knowledge, neither the Company nor any of its subsidiaries is in
violation of, or in default with respect to, any statute, rule, regulation,
order, judgment or decree, except as described in the Prospectus, neither
the Company nor any subsidiary is bound by any order, judgment or decree
and the Company holds all Authorizations necessary for the conduct of its
business as described in the Registration Statement and the Prospectus.
(xiv) The Company has duly authorized the execution and
delivery of this Agreement and the performance by the Company thereunder
and has duly executed and delivered the Agreement.
(xv) The Registration Statement and the Prospectus and each
amendment or supplement thereto (other than the financial statements and
related schedules 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
-29-
with the requirements of the Act and the rules and regulations thereunder.
To the knowledge of such counsel, there are no (A) contracts, instruments
or other documents or agreements that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement and are not so described or filed as required, (B)
constitutions, laws, orders, judgments, decrees, rules or regulations which
are required to be described in the Registration Statement or the
Prospectus and are not so described as required, (C) pending or threatened
legal or governmental proceedings that are required to be described in the
Registration Statement or the Prospectus and are not so described as
required, or (D) relationships, direct or indirect, between or among the
Company, on the one hand, and the directors, officers or shareholders of
the Company on the other hand, which are required to be described in the
Registration Statement or the Prospectus and are not so described as
required; to such counsel's knowledge, as of the date of the Prospectus and
at such Time of Delivery, the Company is not engaged in substantive
discussions with any third party with respect to, or obligated to complete,
any acquisitions for which disclosure of pro forma financial information in
the Prospectus is required by the Act; and all descriptions in the
Registration Statement (including, without limitation, the statements under
Items 14 and 15 of Part II of the Registration Statement) and the
Prospectus of (W) contracts, instruments and other documents and
agreements, (X) laws, orders, judgments, decrees, rules and regulations,
(Y) pending and threatened legal and governmental proceedings, and (Z)
relationships, direct or indirect, between or among the Company on the one
hand, and the directors, officers, and shareholders of the Company on the
other hand, are fair summaries thereof and fairly present the information
required to be disclosed with respect thereto under the Act.
(xvi) The Registration Statement is effective under the Act;
any required filing of the Prospectus pursuant to Rule 424(b) or Rule 430A
has been made in the manner and within the time period required; and to
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
(xvii) 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 they have no reason to believe that
the Registration Statement, or any further amendment thereto made prior to such
Time of Delivery, on its effective date and as of such Time of Delivery,
contained or contains any
-30-
untrue statement of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, or any amendment or supplement thereto
made prior to such Time of Delivery, as of its issue date and as of such Time of
Delivery, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (provided that such counsel need express no belief regarding the
financial statements and related schedules and other financial or statistical
data contained in the Registration Statement, any amendment thereto, or the
Prospectus, or any amendment or supplement thereto).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
(d) You shall have received an opinion, dated such Time of Delivery, of
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., counsel for Independent Bankers Financial
Corporation, and [counsel for Sirrom Investments, Inc.], counsel for Sirrom
Investments, Inc., in form and substance reasonably satisfactory to you and your
counsel, to the effect that:
(i) Such Selling Shareholder has full corporate power and
authority to enter into each of this Agreement and such Selling
Shareholder's Power of Attorney and Custody Agreement, to sell, assign,
transfer and deliver the Shares being sold by the Selling Shareholder in
the manner provided herein and therein, and to perform the Selling
Shareholder's other obligations hereunder and thereunder.
(ii) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Shareholder, each of which is
enforceable against such Selling Shareholder in accordance with its terms
subject 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 (except the right to
indemnity and contribution may be limited by federal and state securities
laws).
(iii) This Agreement has been duly executed and delivered by or
on behalf of such Selling Shareholder; the sale of the Shares to be sold by
such Selling Shareholder at such Time of Delivery and the performance of
this Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated will not
(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,
-31-
lease or other agreement or instrument to which such Selling Shareholder or
any of its subsidiaries 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 or other
governing instruments of such Selling Shareholder or any of its
subsidiaries or any statute, rule or regulation or any order, judgment or
decree of any court or governmental agency or body having jurisdiction over
such Selling Shareholder or any of such Selling Shareholder's properties or
assets.
(iv) No consent, approval, authorization, order or declaration of
or from, or registration, qualification or filing with, any court or
governmental agency or body is required for the issue and sale of the
Shares being sold by such Selling Shareholder or the consummation of the
transactions contemplated by this Agreement, the Power of Attorney or the
Custody Agreement, except the registration of such 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 such Shares by the
Underwriters.
(v) Such Selling Shareholder is the sole registered owner of the
Shares to be sold by such Selling Shareholder, and assuming (A) an
Underwriter acquires its interest in the Shares to be sold by such Selling
Shareholder to such Underwriter without notice of any adverse claim (within
the meaning of the Uniform Commercial Code as in effect in the State of
Georgia (the "UCC")), (B) such Underwriter has paid the purchase price of
such Shares and (C) such Shares have been credited to the securities
account of such Underwriter maintained with DTC, then such Underwriter will
have a securities entitlement (as defined in Section 8-102(a)(17) of the
UCC) to such Shares purchased by such Underwriter and no action based on an
adverse claim to such Shares, whether framed in conversion, replevin,
constructive trust, equitable lien or other theory, may be asserted against
such Underwriter.
In rendering any such opinion, such counsel may assume that all state
laws are the same law as the state of organization of the Selling Shareholder,
which such counsel represents, and may rely, as to matters of fact, to the
extent such counsel deem proper, on certificates of responsible officers of the
Company, the Selling Shareholders, the Attorneys and public officials.
(e) You shall have received from Xxxxxx Xxxxxxxx LLP letters dated,
respectively, the date hereof (or, if the Registration Statement has been
declared effective on a date prior to date of the execution and delivery of this
Agreement, dated such effective date and the date of this Agreement) and each
Time of Delivery, in form and substance satisfactory to you, to the effect set
forth in Annex I hereto. In the event that the letters referred to in this
Section 7(e) set forth any changes, decreases or increases in the items
specified in paragraph of _____ Annex I, it shall be a further condition to the
-32-
obligations of the Underwriters that (i) such letters shall be accompanied by a
written explanation by the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (ii) such changes,
decreases or increases do not, in your sole judgment, 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 of such letter.
(f) Since the date of the latest audited financial statements included
in the Prospectus, neither the Company nor any of its subsidiaries shall have
sustained (i) any loss or interference with their respective businesses from
fire, explosion, flood, hurricane or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as disclosed in or contemplated by the Prospectus, or
(ii) any change, or any development involving a prospective change (including
without limitation a change in management or control of the Company), in or
affecting the position (financial or otherwise), results of operations or net
worth of the Company and its subsidiaries, otherwise than as disclosed in or
contemplated by the Prospectus, 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 Nasdaq National Market or any
setting of minimum prices for trading on such exchange, or in the Common Stock
by the Commission or the Nasdaq National Market; (ii) a moratorium on commercial
banking activities in New York or Georgia declared by either federal or state
authorities; (iii) any outbreak or escalation of hostilities involving the
United States, declaration by the United States of a national emergency 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 reasonable 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 (v) the enactment,
publication, decree or other promulgation of any constitution, statute,
regulation, rule, order, law, decree, writ or judgment of any court or other
governmental authority which in your good faith opinion materially and adversely
affects, or will materially and adversely affect, the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in your good faith opinion has a material adverse effect on the financial
markets in the United States or (vii) any adverse change in general economic,
political, financial or international conditions
-33-
which has an adverse impact on trading prices of securities that, in your good
faith judgment, makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Shares on the terms and in the manner
contemplated by the Prospectus.
(h) The Company shall have furnished to you at such Time of Delivery
certificates of officers of the Company and certificates of the Selling
Shareholders, satisfactory to you, as to the accuracy of the representations and
warranties of the Company and such Selling Shareholders herein at and as of such
Time of Delivery, as to the performance by the Company and such Selling
Shareholders of all of their respective 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 (f) of
this Section 7, and as to such other matters as you may reasonably request.
(i) The Shares shall be included for quotation on the Nasdaq National
Market, subject to notice of issuance.
8. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Underwriter its directors, its officers and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages, liabilities and judgments, joint or several, to which such Underwriter
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or judgments (or actions in respect thereof) are caused by,
arise out of or are based upon: (i) any breach of any representation or warranty
made by the Company in Section l(a) 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 (in the case of any Preliminary Prspectus or the
Prospectus, in light of the circumstance under which they were made) not
misleading, and will reimburse each Underwriter for any legal or other expenses
(including, without limitation, the reasonable fees and expenses of counsel)
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
-34-
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 through you
expressly for use therein (it being understood that the only information so
provided is the information included in the last paragraph on the cover page and
the first five paragraphs and the seventh, thirteenth, fourteenth, fifteenth,
eighteenth and nineteenth paragraphs under the caption "Underwriting" in any
Preliminary Prospectus and the Prospectus). 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 Selling Shareholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter its directors, its officers and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages, liabilities and judgments, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages, liabilities or judgment (or actions in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged untrue
statement made by such Selling Shareholder in Section l(b) of this Agreement; or
(ii) any untrue statement or alleged untrue statement of any material fact by
such Selling Shareholder 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 (in the case of any
Preliminary Prospectus or the Prospectus, in light of the circumstance under
which they were made) not misleading, and will reimburse each Underwriter for
any legal or other expenses (including, without limitation, the reasonable fees
and expenses of counsel) 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 a Selling Shareholder shall only be liable in its capacity as a
-------
Selling Shareholder pursuant to clause (ii) to the extent that any statements in
or omissions or alleged omissions to state in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any application, are based upon written information
furnished to the Company
-35-
by such Selling Shareholder specifically for use therein or to the extent such
Selling Shareholder has failed to bring to the attention of the Underwriters
anything that has come to the attention of such Selling Shareholder to cause
such Selling Shareholder to believe that there is any untrue statement relating
to the Company of any material fact contained in the Registration Statement or
any amendment thereto, the Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or any application, or any omission to state
therein a material fact relating to the Company required to be stated therein or
necessary to make the statements therein not misleading; provided, further,
-----------------
however, that no such Selling Shareholder shall 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 through you expressly
for use therein (it being understood that the only information so provided is
the information included in the last paragraph on the cover page and the first
five paragraphs and the seventh, thirteenth, fourteenth, fifteenth, eighteenth
and nineteenth paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and the Prospectus); provided, further, however, that such Selling
-------- ------- -------
Shareholder shall be liable hereunder in any case only to the extent of the
total net proceeds from the offering (before deducting expenses) received by
such Selling Shareholder from the Underwriters for the Shares sold by such
Selling Shareholder hereunder unless any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or any
amendment or supplement thereto, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto or any Application in reliance upon and
conformity with written information furnished to the Company by such Selling
Shareholder expressly for use therein, in which case such limitation of the
liability of such Selling Shareholder shall not apply. No Selling Shareholder
will, 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).
(c) Each Underwriter, severally but not jointly, agrees to indemnify
and hold harmless the Company and each Selling Shareholder against any losses,
claims, damages or liabilities to which the Company or any Selling Shareholder
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
-36-
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 such Underwriter through you expressly for use therein (it being
understood that the only information so provided is the information included in
the last paragraph on the cover page and the first five paragraphs and the
seventh, thirteenth, fourteenth, fifteenth, eighteenth and nineteenth paragraphs
under the caption "Underwriting" in any Preliminary Prospectus and the
Prospectus); and will reimburse the Company and each Selling Shareholder for any
legal or other expenses reasonably incurred by the Company or such Selling
Shareholder in connection with investigating or defending any such loss, claim,
damage, liability or action.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) 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 reasonably 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 include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party and such indemnified party shall have the
right to select separate counsel to defend such action on behalf of such
indemnified party. After such notice from the indemnifying party to such
indemnified party of its election so to assume the defense 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
or (ii) the indemnifying party has authorized
-37-
the employment of counsel for the indemnified party at the expense of the
indemnifying party or (iii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party. Nothing in this Section 8(d) shall preclude an indemnified
party from participating at its own expense in the defense of any such action so
assumed by the indemnifying party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages,
liabilities or judgments (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 and the Selling
Shareholders 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 (d) 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 and the Selling
Shareholders 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 and the
Selling Shareholders 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 and the Selling Shareholders
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 or the Selling Shareholders 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, the Selling Shareholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(e) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this subsection (e). 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 (e) 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 (e), no Underwriter shall be
required to contribute any amount in excess of the amount by
-38-
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. Further,
notwithstanding the provisions of this subsection (e), no Selling Shareholder
shall be required to contribute any amount that, together with the amount of any
damages which such Selling Shareholder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, exceeds the limit on such Selling Shareholder's liability prescribed
by Section 8(b). No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section 8 shall be in addition to any liability which the Company or such
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 8
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and any Selling Shareholder and to each
person, if any, who controls the Company or any Selling Shareholder 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 thirty-six (36) hours after such default by
any Underwriter you do not arrange for the purchase of such Shares, the Company
and the Selling Shareholders shall be entitled to a further period of thirty-six
(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 and the Selling
Shareholders that you have so arranged for the purchase of such Shares, or the
Company and the Selling Shareholders notify you that they have so arranged for
the purchase of such Shares, you or the Company and the Selling Shareholders
shall have the right to postpone a Time of Delivery for a period of not more
than seven days or such longer period agreed to by you and the Company in order
to effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus 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
-39-
this Agreement shall include any person substituted under this Section with like
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 and
the Selling Shareholders 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 and the Selling Shareholders 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
Representatives 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 or the Selling Shareholders
shall have failed, refused or been unable to deliver the Shares or to perform
all obligations and satisfy all conditions on their respective parts 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 and the
Selling Shareholders, pro rata in accordance with the number of Shares to be
sold hereunder will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including counsel fees and disbursements) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Shares. Neither the Company nor any Selling Shareholder shall 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 and
the Selling Shareholders as provided in Section 9(a), the aggregate number of
such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of Shares to be purchased at such Time of Delivery, or if the Company and
the Selling Shareholders 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) shall thereupon
-40-
terminate, without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Shareholders, except for the expenses to be borne by the
Company, the Selling Shareholders 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, the Selling
Shareholders and the several Underwriters, as set forth in this Agreement or
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person referred to in Section 8(e) or the Company, any Selling
Shareholder or any officer or director or controlling person of the Company or
any Selling Shareholder 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 any of the Underwriters, shall be mailed, delivered or transmitted by
facsimile and confirmed in writing to you in care of The Xxxxxxxx-Xxxxxxxx
Company, LLC, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention:
Corporate Finance Department (with a copy to Xxxxxx & Bird LLP, 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 Attention: X. Xxxx Xxxxxxxx; if to any
Selling Shareholder shall be sufficient in all respects if delivered or sent by
registered mail for such Selling Shareholder at its address set forth in
Schedule II hereto with a copy to its counsel at its address set forth on
Schedule II hereto; and if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed in writing to the Company at 2410 Paces Ferry Road,
000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxxx (with a copy
to Xxxxxxxxxx, Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: Xxxxxxx X. Xxxx).
13. Representatives. 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 jointly or by The Xxxxxxxx-Xxxxxxxx Company,
LLC will be binding upon all the Underwriters.
14. Binding Effect. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and the Selling
Shareholders 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
-41-
Agreement. No purchaser of any of the Shares from any Underwriter 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 Georgia 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.
-42-
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 Xxxxxxxx-Xxxxxxxx Company, LLC, on behalf of each
of the Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in the Master Agreement among Underwriters, a copy of which shall be
submitted to the Company for examination, upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Netzee, Inc.
By:
---------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
Independent Bankers Financial Corporation
By:
---------------------------------------
[Insert Name]
Attorney-in-Fact
Sirrom Investments, Inc.
By:
---------------------------------------
[Insert Name]
Attorney-in-Fact
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The foregoing Agreement is hereby
confirmed and accepted as of the date first
written above at Atlanta, Georgia.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
X. X. XXXXXXXX & CO.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By: The Xxxxxxxx-Xxxxxxxx Company, LLC
By:
---------------------------------
Xxxxxx X. Xxxxxxxx
First Vice President
On behalf of each of the Underwriters
-44-
SCHEDULE I
Number of Optional
Shares to be
Total Number of Firm Purchased if
Shares to be Maximum Option
Underwriter Purchased Exercised
----------- -------------------- -------------------
The Xxxxxxxx-Xxxxxxxx Company, LLC
X. X. Xxxxxxxx & Co.
SunTrust Equitable Securities Corporation
__________ __________
Total __________ __________
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SCHEDULE II
Total Number of
Firm Shares to
Selling Shareholders* Be Sold
--------------------- ---------------
Independent Bankers Financial Corporation 391,208
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: A. Xxxxxx Xxxxxx, Executive Vice President
Sirrom Investments, Inc. 56,947
------------
* Each of the Selling Shareholders has executed and delivered a Power of
Attorney appointing Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxxx such Selling
Shareholder's Attorneys-in-Fact. Independent Bankers Financial Corporation is
represented by Xxxxxxxx Xxxxxxx & Xxxxxx P.C., 5400 Renaissance Tower, 0000
Xxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxxxxx Xxxxxxx and D. Xxxxxxx
Xxxxxxxxx. Sirrom Investments, Inc. is represented by [insert name and
address of counsel].
-46-
