EXHIBIT 1.1
1,000,000
Preferred Securities
Premier Capital Trust
UNDERWRITING AGREEMENT
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, 1997
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▇.▇. ▇▇▇▇▇▇▇▇ & CO.
INTERSTATE/▇▇▇▇▇▇▇ LANE CORPORATION
STERNE AGEE & ▇▇▇▇▇, INC.
as Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇▇ & Co.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Premier Capital Trust (the "Trust"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801, et seq.))
and Premier Bancshares, Inc., a Georgia corporation (the "Company" and together
with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with
▇.▇. ▇▇▇▇▇▇▇▇ & Co. ("▇.▇. ▇▇▇▇▇▇▇▇") and each of the other Underwriters named
in Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom ▇.▇. ▇▇▇▇▇▇▇▇, Interstate/▇▇▇▇▇▇▇ Lane Corporation, and Sterne
Agee & ▇▇▇▇▇, Inc. are acting as representatives (in such capacity, ▇.▇.
▇▇▇▇▇▇▇▇, Interstate/▇▇▇▇▇▇▇ ▇▇▇▇ Corporation, and Sterne Agee & ▇▇▇▇▇, Inc.
will be referred to as the "Representatives"), with respect to the issue and
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective number set forth in Schedule A of 1,000,000 ____%
Cumulative Trust Preferred Securities (liquidation amount of $25.00 per
security) of the Trust. Said aggregate of 1,000,000 Preferred Securities are
herein referred to as the "Firm Preferred Securities." In addition, the Company
proposes to grant to the Underwriters an option to purchase up to 150,000
additional ___% Cumulative Trust Preferred Securities (the "Optional Preferred
Securities"), as provided in Section 2 hereof. The Firm Preferred Securities
and, to the extent such option is exercised, the Optional Preferred Securities
are hereinafter collectively referred to as the "Preferred Securities." The
Preferred Securities will be guaranteed by the Company, to the extent described
in the Prospectus, with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the
Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee"),
to be dated as of ___________, 1997, between the Company and State Street Bank &
Trust Company, as Trustee (the "Guarantee Trustee"). The Preferred Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated as
of the First Closing Date (as defined herein) or the Second Closing Date (as
defined herein), as the case may be, (the "DTC Agreement"), among the Trust, the
Guarantee Trustee and DTC.
The entire proceeds from the sale of the Preferred Securities in the
Offering will be combined with the entire proceeds from the sale by the Trust to
the Company of its common securities (the "Common Securities"), as guaranteed by
the Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Common Securities Guarantee Agreement (the "Common Guarantee" and,
together with the Preferred Securities Guarantee, the "Guarantees"), to be dated
as of __________, 1997, made by the Company, and will be used by the Trust to
purchase $_____________ aggregate principal amount (plus up to an additional
$__________ aggregate principal amount if the Underwriters' over-allotment
option is exercised) of ____% Subordinated Debentures due ____________, 2027
(the "Subordinated Debentures") issued by the Company. The Preferred Securities
and the Common Securities will be issued pursuant to the Trust Agreement, to be
dated as of __________, 1997 (the "Trust Agreement"), among the Company, as
sponsor, and ____________ as administrators (the "Administrative Trustees"),
State Street Bank & Trust Company, as property trustee (the "Property Trustee"),
and Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee," and,
together with the Property Trustee and the Administrative Trustees, the
"Trustees"), and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust. The Subordinated Debentures will be
issued pursuant to an indenture, to be dated as of _____________, 1997 (the
"Indenture"), between the Company and State Street Bank & Trust Company, as
trustee (the "Debenture Trustee").
The Preferred Securities, the Preferred Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the
"Securities."
The Indenture, the Trust Agreement, the Guarantees, the Expense Agreement,
the DTC Agreement, and this Agreement are hereinafter referred to collectively
as the "Operative Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-______)
containing a preliminary prospectus relating to the Offering under the
Securities Act of 1933, as amended (the "1933 Act"), and have filed such
amendments thereto and such amended preliminary prospectuses as may have been
required by the Commission on or prior to the date hereof and will file such
additional amendments to the registration statement and such amended
prospectuses relating to the Offering (pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the rules and regulations of the
Commission
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thereunder (the "1934 Act Regulations"), the 1933 Act, the rules and regulations
of the Commission under the 1933 Act (the "1933 Act Regulations") or otherwise)
as may hereafter be required by the Commission or pursuant to the terms of this
Agreement. Such registration statement, as amended, at the time such
registration statement becomes effective and, in the event any post-effective
amendment thereto becomes effective prior to the First Closing Date (as
hereinafter defined), at the time such post-effective amendment becomes
effective, and the prospectus relating to the Offering constituting a part
thereof (including, in the case of such registration statement, as amended, and
in the case of such prospectus, all financial statements, schedules and exhibits
thereto and all documents incorporated or deemed incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, all exhibits to such
documents and the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations), as from time to time amended or
supplemented pursuant to the 1934 Act, the 1934 Act Regulations, the 1933 Act,
the 1933 Act Regulations or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if any
revised prospectus relating to the Offering shall be provided to the
Underwriters by the Offerors for use in the Offering which differs from the
prospectus relating to the Offering on file at the Commission at the time of
such use (whether or not such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. The term "Preliminary
Prospectus" means the preliminary prospectus dated _______________, 1997
distributed by the Underwriters prior to the date hereof.
The Offerors understand that the Underwriters propose to make the Offering
of the Securities as soon as the Representatives deem advisable after the
Registration Statement becomes effective and after the Trust Agreement, the
Indenture and the Preferred Securities Guarantee have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which are
incorporated by reference in the Prospectus; and all references in this
Agreement to amendments or supplements to the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Prospectus.
SECTION 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of each of the First Closing Date and
the Second Closing Date, and agree with each Underwriter as follows:
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(i) The Company meets the requirements for use of Form S-3 under the
1933 Act.
(ii) No document with respect to the Registration Statement has been
filed with the Commission; and no stop order suspending the effectiveness
of the Registration Statement, or any other amendment thereto and no cease
and desist order or temporary order under Section 8A of the 1933 Act has
been issued, and no proceeding for such purpose has been instituted or is
pending or threatened by the Commission. No order preventing or suspending
the use of any Prospectus or any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the 1933
Act and the 1933 Act Regulations and did not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with the
"Underwriter Information" (as defined in Section 6(a) hereof) relating to
the Underwriters furnished in writing to the Company by or on behalf of the
Underwriters expressly for use therein.
(iii) At the time the Registration Statement and any amendment
thereto becomes effective, the Registration Statement and any amendment
thereto, and the Prospectus and any further amendment or supplement
thereto, will conform in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations and will not, as of effective date of
each of the Registration Statement, and any amendment thereto, and as of
the applicable filing date of the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with the Underwriter Information.
(iv) Each document incorporated or deemed incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time it was or hereafter is filed with the Commission, conformed or
will conform, as the case may be, in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together and with the other information in the Prospectus at each time the
Registration Statement and any amendment thereto is declared effective,
during the time the Prospectus is required to be delivered by the 1933 Act,
and at the First Closing Date and at the Second Closing Date, as the case
may be, do not and will not contain an untrue statement of a material fact
or omit to state a material fact
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required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading.
(v) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC, which has audited certain financial
statements of the Company, are, and were during the periods covered in its
report incorporated by reference into the Registration Statement and the
Prospectus, independent public accountants with respect to the Company and
its subsidiaries, as required by the 1933 Act, the 1933 Regulations, the
1934 Regulations and Commission Regulation S-X.
(vi) The consolidated financial statements, together with the related
schedules and notes, included in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries at the dates indicated and the consolidated
results of operations and cash flows of the Company and its subsidiaries
for the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as disclosed
in the notes to such financial statements. The supporting schedules, if
any, included in the Registration Statement and the Prospectus present
fairly, in all material respects, the information required to be stated
therein. The summary financial data included in the Registration Statement
and the Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus.
(vii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby and, except for normal recurring dividends
on the capital stock of the Company, there has not been (A) any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Trust, or the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (B) any transaction entered into by the Trust,
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Trust, or the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(viii) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia and has the
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to
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so qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(ix) Premier Bank is a duly organized and validly existing state-
chartered bank under the laws of the State of Georgia and continues to hold
a valid certificate to do business as such and has full power and authority
to conduct its business as such; Central and Southern Bank is a duly
organized and validly existing state-chartered bank under the laws of the
State of Georgia and continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such;
Central and Southern Bank of North Georgia, F.S.B. is a duly organized and
validly existing federally-chartered stock savings bank under the laws of
the United States and continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such;
Premier Lending is a duly and validly organized and existing corporation
under the laws of the State of Georgia and continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such (Premier Bank, Central and Southern Bank,
Central and Southern Bank of North Georgia, F.S.B., and Premier Lending are
referred to collectively as the "Significant Subsidiaries"). Each
Significant Subsidiary has the authority under its jurisdiction of
organization to own, lease and operate its properties and to conduct its
business and is duly authorized to transact business and is in good
standing in each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or to be in
good standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(x) The Company does not have any subsidiaries which are material to
its business, except to the extent that the Significant Subsidiaries may be
deemed to be so material.
(xi) (a) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Registration Statement and
the Prospectus, (b) all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable, and (c) none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive rights of any
stockholder of the Company.
(xii) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into and perform its
obligations under the Operative Documents, as applicable, and the Preferred
Securities; the Trust is
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not a party to or otherwise bound by any material agreement other than
those described in the Registration Statement and the Prospectus; and the
Trust is and will, under current law, be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation.
(xiii) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and the
Prospectus, will be validly issued and will represent undivided beneficial
interests in the assets of the Trust; the issuance of the Common Securities
is not subject to preemptive or other similar rights; and at the First
Closing Date and at the Second Closing Date, as the case may be, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(xiv) As of the First Closing Date and at the Second Closing Date, as
the case may be, the Preferred Securities will have been duly authorized by
the Trust Agreement and, when issued and delivered against payment therefor
in accordance with the Trust Agreement, as provided herein, will be validly
issued and fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and will conform in all material respects to the
description thereof contained in the Prospectus and the issuance of the
Preferred Securities will not be subject to preemptive or other similar
rights.
(xv) This Agreement has been duly authorized, executed and delivered
by the Offerors.
(xvi) The Trust Agreement has been duly authorized by the Company and,
at the First Closing Date and at the Second Closing Date, will have been
duly executed and delivered by the Company and the Trustees, and assuming
due authorization, execution and delivery of the Trust Agreement by the
Trustees, the Trust Agreement will, at the First Closing Date and at the
Second Closing Date, be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions").
(xvii) Each of the Guarantees and the Preferred Securities Guarantee
has been duly authorized by the Company and, at the First Closing Date and
at the Second Closing Date, each of the Guarantees will have been duly
executed and delivered by the Company, and will constitute a valid and
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binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions.
(xviii) The Indenture has been duly authorized by the Company and, at
the First Closing Date and at the Second Closing Date, will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions; and at the First Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(xix) The Subordinated Debentures have been duly authorized by the
Company and, at the First Closing Date and at the Second Closing Date, will
have been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment therefor
as described in the Registration Statement and the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by the Enforceability Exceptions; and the
Subordinated Debentures will be in the form contemplated by, and entitled
to the benefits of, the Indenture and will conform in all material respects
to the description thereof in the Prospectus.
(xx) Each of the Administrative Trustees of the Trust is an officer of
the Company has been duly authorized by the Company to execute and deliver
the Trust Agreement.
(xxi) The Trust is not, and following consummation of the transactions
contemplated hereby will not be, an "investment company" or a company
"controlled" by an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) The Operative Documents described in the Registration Statement
and the Prospectus conform in all material respects to the summary
descriptions thereof contained in the Registration Statement and the
Prospectus.
(xxiii) None of the Trust, the Company nor any of the Significant
Subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to which
any of its properties may be subject, except for such defaults that would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise; the execution and
delivery of the Operative Documents by the Trust or the Company, as the
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case may be, the issuance and delivery of the Securities, the consummation
by the Offerors of the transactions contemplated in the Operative
Documents, and compliance by the Offerors with the terms of the Operative
Documents to which they are a party have been duly authorized by all
necessary corporate action on the part of the Company, and do not and will
not result in any violation of the charter or by-laws of the Company or any
of the Significant Subsidiaries or the Trust Agreement or the certificate
of trust of the Trust filed with the State of Delaware on ___________, 1997
(the "Trust Certificate"), and do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, the Company or any of
the Significant Subsidiaries under (A) any indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Trust,
the Company or any of the Significant Subsidiaries is a party or by which
it may be bound or to which any of its properties may be subject, except
for such conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise or
(B) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Trust, the Company or any of the
Significant Subsidiaries or any of its properties, except for such defaults
that would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxiv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, other than those that have been made or obtained, is
necessary or required for the performance by the Company or the Trust of
their obligations hereunder, in connection with the issuance and sale of
the Preferred Securities or the consummation of the transactions
contemplated by the Operative Documents.
(xxv) Except as disclosed in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company or the Trust, threatened
against or affecting the Trust, or the Company or any of the Significant
Subsidiaries that is required to be disclosed in the Registration Statement
and the Prospectus or that, in the final outcome, could, in the judgment of
the Company, result in any material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Trust, or the Company and its subsidiaries considered as one
enterprise, or that could materially and adversely affect the properties or
assets of the Trust, or the Company and its subsidiaries considered as one
enterprise, or that could adversely affect the consummation of the
transactions contemplated in
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the Operative Documents; the aggregate liability or loss, if any, resulting
from the final outcome of all pending legal or governmental proceedings to
which the Trust, the Company or any of the Significant Subsidiaries is a
party or which affect any of its properties that are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to its business, would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Trust, or the Company and its
subsidiaries considered as one enterprise.
(xxvi) There are no contracts or documents of a character required
to be described in the Registration Statement and the Prospectus that are
not described as required.
(xxvii) The Offerors and the Significant Subsidiaries each owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted, except where the failure to own,
procure or obtain any of the foregoing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, and none of the Offerors nor the Significant
Subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent licenses,
trademarks, service marks or trade names that, in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Trust, or the
Company and its subsidiaries considered as one enterprise.
(xxviii) The Offerors and the Significant Subsidiaries each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Offerors nor any of the Significant Subsidiaries has received any
notice of proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiaries considered as
one enterprise.
(xxix) The Offerors and each of the Significant Subsidiaries each
has good and marketable title to all properties and assets described in the
Registration Statement and the Prospectus as owned by it, free and clear of
all liens, charges, encumbrances or restrictions, except such as (A) are
described in the Registration Statement and the Prospectus or (B) are
neither material in amount nor materially significant in relation to the
business of the Trust, or the Company and its
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subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and the Company and its
subsidiaries considered as one enterprise, and under which the Offerors or
any of the Significant Subsidiaries holds properties described in the
Registration Statement and the Prospectus, are in full force and effect,
and neither the Offerors nor any of the Significant Subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Offerors or such Significant Subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Preferred Securities or the Common Stock.
(xxxi) None of the Trust, the Company, or any of their affiliates, as
such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or
any person acting on its or any of their behalf (other than the
Underwriters, as to whom the Offerors make no representation) has engaged
or will engage, in connection with the offering of the Preferred
Securities, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the 1933 Act.
(xxxii) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the ▇▇▇▇ ▇▇▇.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of the Significant Subsidiaries and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed only a representation and warranty by the Trust or the Company, as the
case may be, to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Trust, at a price of $25.00 per
Security, the number of Firm Preferred Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional Preferred Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Deliveries of certificates for the Firm Preferred Securities shall be
made at the office of the Underwriters in Nashville, Tennessee, and payment of
the purchase price
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for the Firm Preferred Securities shall be made by ▇.▇. ▇▇▇▇▇▇▇▇, on behalf of
the several Underwriters, to the Trust by wire transfer of immediately available
funds contemporaneous with closing at such place as shall be agreed upon by ▇.▇.
▇▇▇▇▇▇▇▇ and the Offerors, at 10:00 A.M. on ______________, 1997 (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by ▇.▇.
▇▇▇▇▇▇▇▇ and the Offerors (such time and date of payment and delivery being
herein called the "First Closing Date").
(c) Payment for the Firm Preferred Securities purchased by the Underwriters
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the respective accounts of the Underwriters of certificates
for the Firm Preferred Securities. Certificates for the Firm Preferred
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least one business day before the First
Closing Date. It is understood that each Underwriter has authorized ▇.▇.
▇▇▇▇▇▇▇▇, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Firm Preferred Securities which it has agreed to
purchase. ▇.▇. ▇▇▇▇▇▇▇▇, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Firm Preferred Securities, if any to be purchased by any
Underwriter whose funds have not been received by the First Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The certificates representing the Firm Preferred Securities shall be made
available for examination and packaging by the Underwriters in Nashville,
Tennessee not later than 10:00 A.M. on the last business day prior to the First
Closing Date.
(d) In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 150,000 Optional
Preferred Securities at the purchase price per security to be paid for the Firm
Preferred Securities, for use solely in covering any over-allotments made by
the Representatives for the account of the Underwriters in the sale and
distribution of the Firm Preferred Securities. The option granted hereunder may
be exercised at any time (but not more than once) within 30 days after the first
date that any of the Preferred Securities are released by the Representatives
for sale to the public, upon notice by the Representatives to the Company
setting forth the aggregate number of Optional Preferred Securities as to which
the Underwriters are exercising the option, the names and denominations in which
the certificates for such securities are to be registered and the time and place
at which such certificates will be delivered. Such time of delivery (which may
not be earlier than the First Closing Date), being herein referred to as the
"Second Closing Date," shall be determined by the Representatives, but if at any
time other than the First Closing Date shall not be earlier than three nor later
than five full business days after delivery of such notice of exercise. The
number of Optional Preferred Securities to be purchased by each Underwriter
shall be determined by multiplying the number of Optional Preferred Securities
to be sold by the Company pursuant to such notice of
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exercise by a fraction, the numerator of which is the number of Firm Preferred
Securities to be purchased by such Underwriter as set forth opposite its name in
Schedule A and the denominator of which is 1,000,000 (subject to such
adjustments to eliminate any fractional share purchases as the Representatives
in their discretion may make). The manner of payment for and delivery of the
Preferred Securities shall be the same as for the Firm Preferred Securities
purchased from the Company as specified in the three preceding paragraphs. At
any time before lapse of the option, you may cancel such option by giving
written notice of such cancellation to the Company. If the option is cancelled
or expires unexercised in whole or in part, the Company will deregister under
the 1933 Act the number of Option Preferred Securities as to which the option
has not been exercised.
(e) As compensation to the Underwriters for their commitments hereunder and
in view of the fact that the proceeds of the sale of the Preferred Securities
will be used to purchase Subordinated Debentures of the Company, the Company
hereby agrees to pay at the First Closing Date or the Second Closing Date, as
the case may be, to ▇.▇. ▇▇▇▇▇▇▇▇ in immediately available funds, for the
accounts of the several Underwriters, $ per Preferred Security to be
-----
delivered by the Trust hereunder at the First Closing Date or the Second Closing
Date, as the case may be, or if agreed by the Representatives and the Company,
by deduction from the amount payable by the Underwriters to the Trust in respect
of the Preferred Securities being purchased on such date.
(f) The Underwriter will comply with all material applicable laws and rules
in connection with the sale of the Securities and the Underwriters are not
acting as an agent for the Company.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
-------------------------
Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any post-effective amendments to the Registration Statement to be
declared effective by the Commission (as and when specified in the reasonable
request of the Representatives) and will prepare the Prospectus in a form
reasonably approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the 1933 Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the 1933 Act. The Company will make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to any
First Closing Date which shall be reasonably disapproved by the Representatives
after reasonable notice thereof. The Company will notify the Representatives
immediately and confirm the notice in writing (i) when the Registration
Statement or any post-effective amendment thereto (and any other amendment
thereto) has been declared effective by the Commission, (ii) of the transmittal
to the Commission for filing of any amendment or supplement to the Prospectus or
any document that will be incorporated by reference in the Subscription
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Prospectus or the Prospectus, (iii) of the receipt by the Company of any
comments from the Georgia Department of Banking and Finance ("Georgia
Department"), the Commission or any state securities commission with respect to
the transactions contemplated by this Agreement, (iv) of any request by the
Georgia Department, the Commission or any state securities commission for any
amendment or supplement to the Registration Statement or the Prospectus, or for
additional information, (v) of the issuance by the Office of Thrift Supervision
(the "OTS"), the Federal Reserve Board, the Georgia Department, the Commissioner
or any state securities commission or court of competent jurisdiction of any
order suspending any of the Offering or the use of either the Preliminary
Prospectus or the Prospectus or the threat of any such action by any such
entity, (vi) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any amendment thereto or of the
receipt by the Company of any notification with respect to the suspension of the
registration, qualification or exemption of the Preferred Securities for
offering or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose. In the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such registration, qualification or exemption, the
Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will give the Representatives notice of its intention to
file or prepare any amendment or supplement to the Registration Statement or any
amendment or supplement to the Prospectus (whether, in the case of the
Registration Statement and the Prospectus, by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise and, in the case of the Prospectus,
including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the Offering from the Prospectus then being so
used by the Underwriters).
(c) The Company has furnished or will deliver to the Representatives and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time
to time until the effective date of the Registration Statement, as many copies
of each Preliminary Prospectus as such Underwriter may reasonably request, and
the Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each Underwriter, without charge,
from time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
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(e) If any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) If, at the time that the Registration Statement or a post-effective
amendment thereto becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then
immediately following effectiveness, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted and will use its best efforts to cause any such post-effective amendment
to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Preferred Securities have been so
qualified the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
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(i) The Company will file with the Commission such reports on From SR as
may be required pursuant to Rule 463 of the 1933 Act Regulations.
(j) The Offerors will cooperate with the Underwriters and use their best
efforts to permit the Preferred Securities to be eligible for clearance and
settlement through the facilities of DTC.
(k) The Trust will use the net proceeds received by it from the sale of the
Preferred Securities, and the Company will use the proceeds received by it from
the sale of the Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."
(l) Prior to , 1997, neither the Trust nor the Company will,
----------
without the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any securities that are substantially similar to the
Preferred Securities, any security convertible into exchangeable or exercisable
for Preferred Securities or any equity security substantially similar to the
Preferred Securities (except for the Securities issued pursuant to this
Agreement or with the prior written consent of ▇.▇. ▇▇▇▇▇▇▇▇).
SECTION 4. Payment of Expenses.
-------------------
The Company will pay all costs and expenses incident to the performance of
its obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 9 hereof, including all costs and expenses incident to (i) the printing
or other production of documents, including the Operative Documents, with
respect to the transactions, including any costs of printing the Registration
Statement originally filed with respect to the Preferred Securities and any
amendment thereto, any Rule 462(b) Registration Statement, and the Prospectus
and any amendment or supplement thereto, this Agreement and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Preferred Securities, including transfer agent's and
registrar's fees, (v) the qualification of the Preferred Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (vi) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Preferred Securities, (vii) the fees and expenses of listing the Preferred
Securities on the American Stock Exchange, Inc., and (viii) the fees and
expenses of any trustee appointed under any of the Operative Documents,
including the fees and disbursements of counsel for such trustees in connection
with the Operative Document. If the sale of the Preferred Securities provided
for herein
-16-
is not consummated because any condition to the obligations of the Underwriters
set forth in Section 5 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 9 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Representatives upon demand for all reasonable out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by it in
connection with the proposed purchase and sale of the Preferred Securities. The
Company shall not in any event be liable to any of the Underwriters for the loss
of anticipated profits from the transactions covered by this Agreement.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
(a) If the Registration Statement or any post-effective amendment to the
Registration Statement filed prior to the First Closing Date has not been
declared effective as of the time of execution hereof, the Registration
Statement or any such post-effective amendment, and, if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement, shall have
been declared effective not later than the earlier of (i) 11:00 A.M., Eastern
Standard Time, on the date on which the amendment to the Registration Statement
originally filed with respect to the Preferred Securities or the 462(b)
Registration Statement, as the case may be, containing information regarding the
offering price of the Preferred Securities has been filed with the Commission,
and (ii) the time confirmations are sent or given as specified by Rule 462(b)
or, with respect to the Registration Statement, such later time and date as
shall have been consented to by the Representative; if required, the Prospectus
or any term sheet that constitutes a part thereof and any amendment or
supplement thereto shall have been filed with the Commission in the manner and
within the time period required by Rules 434 and 424(b) under the Act; no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Representative, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) Opinion of Outside Counsel for Offerors. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, counsel for the Company, to the
effect set forth in Exhibit A hereto.
-17-
(c) Opinion of Special Delaware Counsel for Offerors. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware law,
at the Closing Date, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of special Delaware counsel to the Offerors, to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for State Street Bank & Trust Company. At the
Closing Date, the Underwriters shall have received the favorable opinion, dated
as of the Closing Date, of , counsel to State Street Bank &
--------------------
Trust Company, as Property Trustee under the Trust Agreement, and Guarantee
Trustee under the Preferred Securities Guarantee Agreement, to the effect set
forth in Exhibit C hereto.
(e) Opinion of Special Tax Counsel for the Offerors. At the Closing Date,
the Underwriters shall have received an opinion, dated as of the Closing Date,
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC, special tax counsel to the Offerors,
that (i) the Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation
and (ii) although the discussion set forth in the Prospectus under the heading
"Certain Federal Income Tax Consequences" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership and disposition of the Preferred Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Preferred Securities under current law. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and other documents deemed necessary
for such opinion.
(f) Opinion of Counsel for Underwriters. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of ▇▇▇▇▇▇ & Bird LLP, counsel for the Underwriters, with respect to the
incorporation and legal existence of the Company, the Preferred Securities, the
Indenture, the Preferred Securities Guarantee Agreement, this Agreement, and the
Prospectus and other related matters as the Underwriters may require. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of Trustees
of the Trust, officers of the Company and its subsidiaries and certificates of
public officials. Such counsel may rely as to matters of Delaware law on the
opinions of counsel furnished pursuant to subsections (b) and (c) of this
Section.
(g) Certificates. At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the Chairman, any Vice Chairman, the Chief
Executive Officer, the President or any Vice President of the Company and of the
chief financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the Closing
-18-
Date, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof were true and
correct, in all material respects, when made and are true and correct, in all
material respects, with the same force and effect as though expressly made at
and as of the Closing Date, and (iii) the Offerors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC a
letter, dated such date, in form and substance reasonably satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Prospectus.
(i) Bring-down Comfort Letter. At the Closing Date, the Underwriters shall
have received from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLC a letter, dated as of the Closing Date,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Date.
(j) On or before the Closing Date, the Representatives and counsel for the
Underwriters shall have received such further certificates, documents or other
information as they may have reasonably requested from the Company.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Offerors at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6, 7 and 8 and this Section 5(l) shall survive any such
termination and remain in full force and effect.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
-19-
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase any pay
for any Option Preferred Securities shall be subject, in their discretion, to
each of the foregoing conditions to purchase the Firm Preferred Securities,
except that all references to the Firm Preferred Securities and the First
Closing Date shall be deemed to refer to such Option Preferred Securities and
the related Second Closing Date, respectively.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact included in the Registration Statement
or any amendment to the Registration Statement, including the information
deemed to be part of the Registration Statement pursuant to Rule 430A(b) of
the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus, including the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Offerors; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by ▇.▇. ▇▇▇▇▇▇▇▇),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
-20-
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this Section 6(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Offerors by any Underwriter through ▇.▇. ▇▇▇▇▇▇▇▇ expressly for use in
the Registration Statement or any amendment to the Registration Statement
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). Such written information provided by the Underwriters
is referred to as "Underwriter Information."
The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Preferred Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented if the Offerors shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such shares to
such person and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability.
(b) Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors and
officers, the Trust, each of the Trustees and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by ▇.▇. ▇▇▇▇▇▇▇▇, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Offerors. An indemnifying party
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may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. Notwithstanding
the last sentence of Section 6(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party (1)
reimburses such indemnified party in accordance with such request to the extent
it considers such request to be reasonable and (2) provides written notice to
the indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Preferred
Securities pursuant to this Agreement.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Preferred
Securities pursuant to this Agreement shall be deemed to be in the same
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respective proportions as the total net proceeds from the offering of the
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Underwriters
in the Preferred Offering, bear to the aggregate initial offering price of the
Preferred Securities.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities purchased by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each officer and director of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or trustees of the Trust submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Trust or the Company, and shall survive
delivery of the Preferred Securities to the Underwriters.
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SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriters may terminate this Agreement
with respect to the Firm Preferred Securities or any Option Preferred
Securities, by notice to the Offerors, at any time at or prior to the First
Closing Date or the Second Closing Date, respectively (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or any outbreak of hostilities or escalation thereof or
other calamity or crisis, in each case the effect of which is such as to make
it, in the judgment of the Underwriters, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or Georgia authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 6, 7,
and 8 and this Section 9 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at the First Closing Date or at the Second
Closing Date to purchase the First Preferred Securities or the Option Preferred
Securities, as the case may be, which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the Underwriters shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other Underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Underwriters shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the total
number of Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective purchasing obligations
hereunder bear to the purchasing obligations of all non-defaulting Underwriters,
or
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(b) if the number of Defaulted Securities exceeds 10% of the Securities to
be purchased hereunder, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o ▇.▇. ▇▇▇▇▇▇▇▇ at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇ with a
copy to ▇▇▇▇▇▇ & Bird LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III; notices to the
Offerors shall be directed to Premier Bancshares, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chairman and Chief Executive Officer, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇, PLLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Offerors
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Preferred Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
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SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
PREMIER BANCSHARES, INC.
By:
------------------------
Title:
------------------------
PREMIER CAPITAL TRUST
By:
------------------------
Title:
---------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
INTERSTATE/▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, INC.
By: ▇.▇. ▇▇▇▇▇▇▇▇ & CO.
By:
----------------------
Authorized Signatory
-26-
SCHEDULE A
Number of
Preferred
Name of Underwriters Securities
------------------------------------------------ ------------
▇.▇. ▇▇▇▇▇▇▇▇ & Co. ------------
Interstate/▇▇▇▇▇▇▇ Lane Corporation ------------
Sterne Agee & ▇▇▇▇▇, Inc. ------------
Total ------------
EXHIBIT A
Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ PLLC, Counsel for the
Company, to be delivered pursuant to Section 5(b) of this Agreement:
1. The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Georgia and has
full power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and in the Prospectus.
The Company is duly authorized to transact business and is in good standing in
each jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or to be in good standing would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
2. The Company is registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
3. Premier Bank has been duly organized and is validly existing and in
good standing as a state-chartered bank under the laws of the State of Georgia
and has full power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and in the
Prospectus; Central and Southern Bank has been duly organized and is validly
existing and in good standing as a state-chartered bank under the laws of the
State of Georgia and has full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and in the Prospectus; Central and Southern Bank of North Georgia,
F.S.B. has been duly organized and is validly existing and in good standing as a
state-chartered bank under the laws of the United States and has full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and in the Prospectus; Premier
Lending has been duly organized and is validly existing and in good standing as
a corporation under the laws of the State of Georgia and has full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and in the Prospectus (Premier Bank,
Central and Southern Bank, Central and Southern Bank of North Georgia, F.S.B.,
and Premier Lending are referred to collectively as the "Significant
Subsidiaries"). Each Significant Subsidiary is duly authorized to transact
business and is in good standing in each jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so qualify or
to be in good standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise.
A-1
4. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
have not been issued in violation of the preemptive rights of any shareholder of
the Company.
5. Under the laws of the State of Georgia, its Articles of
Incorporation and its Bylaws, the Company has the corporate power and authority
to execute and deliver, and to perform its obligations under, the Operative
Documents to which it is a party and to issue and perform its obligations under
the Subordinated Debentures.
6. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions.
7. The Trust Agreement has been duly authorized, executed and delivered
by the Company.
8. Each of the Guarantees has been duly and validly authorized,
executed and delivered by the Company, and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and the Guarantee has been duly qualified under the
1939 Act.
9. The Indenture has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions; and the Indenture has been duly qualified under the 1939 Act.
10. The Subordinated Debentures have been duly and validly authorized
for issuance by the Company, and when executed, authenticated and delivered in
the manner provided for in the Indenture and paid for in accordance with the
Subordinated Debenture Purchase Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the Enforceability Exceptions;
and the issuance of the Subordinated Debentures is not subject to preemptive or
other similar rights arising under the Articles of Incorporation or Bylaws of
the Company, under the laws of the State of Georgia or, to the best knowledge of
such counsel, otherwise.
11. The statements in the Subscription Prospectus and the Prospectus
under the captions "Capitalization," "Description of Preferred Securities,"
"Description of Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated Debentures and
the Guarantee," and "Description of Premier Capital Stock," to the extent that
such statements purport to summarize certain
A-2
provisions of the Preferred Securities, the Subordinated Debentures, the
Guarantee, the Indenture, the Common Stock, the Company's Articles of
Incorporation and Bylaws, and the Georgia Business Corporation Code have been
reviewed and fairly summarize such provisions in all material respects and
conform in all material respects to the instruments defining the same.
12. Neither the Company nor the Trust is, or immediately following
consummation of the transactions contemplated by the Agreement will be, required
to be registered under the Investment Company Act of 1940, as amended.
13. The statements of law or legal conclusions and opinions set forth
under the section entitled "Material Federal Income Tax Consequences" in the
Prospectus, subject to the assumptions and conditions described therein,
constitute our opinion. Our opinion is based on the case law, Internal Revenue
Service rulings and pronouncements and judicial decisions as they exist at the
date hereof. These authorities are all subject to change, and such change may
be made with retroactive effect. We can give no assurances that, after such
change, our opinion would not be different.
14. Except as disclosed in the Registration Statement or the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or
threatened against or affecting the Company or any subsidiary that in the final
outcome could in our judgment result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, or
that could materially and adversely affect the properties or assets of the
Company and its subsidiaries considered as one enterprise, or that could
adversely affect the consummation of the transactions contemplated in the
Operative Documents. The aggregate liability or loss, if any, resulting from
the final outcome of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or which affect any of its properties that
are not described in the Registration Statement or the Prospectus, including
ordinary routine litigation incidental to its business, would not have a
material adverse effect on the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
16. Neither the Company nor any subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties may be subject, except for such defaults that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
17. The execution and delivery by the Company of the Operative
Documents to which it is a party, the issuance and delivery of the Preferred
Securities and the Common Securities and the consummation by the Company of the
transactions
A-3
contemplated by the Operative Documents do not and will not violate or conflict
with the Articles of Incorporation or the Bylaws of the Company.
18. The execution and delivery by the Company of the Operative
Documents to which it is a party, the issuance and delivery of the Preferred
Securities and the Common Securities and the consummation by the Company of the
transactions contemplated by the Operative Documents do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary under (a) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any subsidiary is a party
or by which it may be bound or to which any of its properties may be subject, or
(b) any existing applicable law, rule, regulation, qualification, judgment,
order or decree of any governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of its
properties except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company or its subsidiaries considered as one enterprise.
19. No Governmental Approval which has not been made or obtained is
required for the execution or delivery by the Company of the Operative Documents
to which it is a party, or the consummation by the Company of the transactions
contemplated thereby.
20. The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act and, to the best knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement or such amendments thereto has been issued under the 1933 Act, and no
proceeding therefor has been instituted or is pending or threatened by the
Georgia Department, the Federal Reserve Board, or the Commission.
21. The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements and related notes thereto, related
schedules and financial and statistical data, and descriptions of accounting
treatment included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations. As of the date they were filed with the
Commission, the documents incorporated by reference in the Registration
Statement and any post-effective amendments thereto (except for the financial
statements and related notes thereto, related schedules and financial and
statistical data, and descriptions of accounting treatment included therein, as
to which such counsel need express no opinion) complied as to form in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
A-4
22. Such counsel has participated in the preparation of the Registration
Statement and the Prospectus and no facts have come to the attention of such
counsel to lead them to believe that, as of the effective date of the
Registration Statement or any post-effective amendment thereto or the date of
the Prospectus or as of the Closing Date, either the Registration Statement, any
post-effective amendment thereto, the Subscription Prospectus or the Prospectus
(or, as of its date, any further amendment or supplement thereto made by the
Company prior to the Closing Date) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except for the financial statements
and related notes thereto, related schedules and financial and statistical data,
and descriptions of accounting treatment included therein, as to which such
counsel need express no opinion).
23. Such counsel does not know of any amendment or supplement to the
Registration Statement or any post-effective amendment thereto required to be
filed or of any contract, agreement, instrument, lease, license, arrangement or
understanding of a character required to be filed as an exhibit to, described in
or incorporated by reference into, the Registration Statement, post-effective
amendment thereto, or the Prospectus, as amended or supplemented, which are not
filed, described or incorporated by reference as required.
A-5
EXHIBIT B
Form of Opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, Special Delaware Counsel to
the Offerors, to be delivered pursuant to Section 5(c) of this Agreement:
1. The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Business Trust Act.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (a) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(b) issue and perform its obligations under the Preferred Securities and the
Common Securities, (c) purchase and hold the Subordinated Debentures and (d)
conduct its business as described in the Registration Statement, Post-Effective
Amendment No. 1 or 2 thereto, the Subscription Prospectus or the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Administrative Trustees, and is enforceable against the Company
and the Administrative Trustees, in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
4. The Preferred Securities have been duly authorized for issuance by the
Trust Agreement, and the Preferred Securities, when duly issued, executed and
authenticated in accordance with the Trust Agreement and delivered and paid for
in accordance with the Agreement, will be, subject to the qualifications set
forth in paragraph 6 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will entitle the holders thereof to the
benefits of the Trust Agreement, except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
5. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed and authenticated in accordance with
the Trust Agreement and delivered and paid for in accordance with the Common
Security
B-1
Purchase Agreement, will be validly issued undivided beneficial interests in the
assets of the Issuer Trust. The issuance of the Common Securities is not
subject to preemptive rights under the Delaware Business Trust Act or the Trust
Agreement.
6. The holders of the Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
We bring to your attention, however, that the holders of the Preferred
Securities may be obligated, pursuant to the Trust Agreement, to (a) provide
indemnity and/or security in connection with, and pay taxes or governmental
charges arising from, transfers of Preferred Securities and the issuance of
replacement Preferred Securities, and (b) provide security and indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Trust Agreement.
7. Based on our review of applicable laws, no Delaware governmental
approval which has not been obtained or taken and is not in full force and
effect is required solely to authorize or in connection with the execution or
delivery by the Trust of the Operative Documents to which it is a party, or the
consummation by the Trust of the transactions contemplated thereby. We express
no opinion in this paragraph 8, however, as to any governmental approvals which
may be required under state securities or "blue sky" laws.
8. None of the execution and delivery by the Trust of the Operative
Documents, or the issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of the Agreement or the consummation by the Trust of
the other transactions contemplated thereby, (a) violate any applicable Delaware
laws, or (b) conflict with the Certificate of Trust or the Trust Agreement,
except that we express no opinion in this paragraph 9 with respect to (i) the
rights to indemnity and contribution contained in the Trust Agreement which may
be limited by state securities laws or the public policy underlying such laws or
(ii) any state securities or "blue sky" laws.
B-2
EXHIBIT C
Form of Opinion of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, Special Counsel for the Property
Trustee, Guarantee Trustee, and Debenture Trustee to be delivered pursuant to
Section 5(d) of this Agreement:
1. The Trustee is a banking corporation duly incorporated and validly
existing under the laws of the State of ________ with all necessary power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of the Agreements.
2. The execution, delivery and performance by the Property Trustee of the
Trust Agreement, the execution, delivery and performance by the Guarantee
Trustee of the Guarantee and the execution, delivery and performance by the
Debenture Trustee of the Indenture have been duly authorized by all necessary
corporate action on the part of the Property Trustee, the Guarantee Trustee and
the Debenture Trustee, respectively. The Trust Agreement, the Guarantee and the
Indenture have been duly executed and delivered by the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively, and constitute the
legal, valid and binding obligations of the Property Trustee, the Guarantee
Trustee and the Debenture Trustee, respectively, enforceable against the
Property Trustee, the Guarantee Trustee and the Debenture Trustee, respectively,
in accordance with their terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. The execution, delivery and performance of the Trust Agreement, the
Guarantee and the Indenture by the Property Trustee, the Guarantee Trustee and
the Debenture Trustee, respectively, does not conflict with or constitute a
breach of the Organization Certificate or By-laws of the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively or the terms of any
indenture or other agreement or instrument known to such counsel and to which
the Property Trustee, the Guarantee Trustee or the Debenture Trustee,
respectively, is a party or is bound or any judgment, order or decree known to
such counsel to be applicable to the Property Trustee, the Guarantee Trustee or
the Debenture Trustee, respectively, of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Property Trustee, the Guarantee Trustee or the Debenture Trustee,
respectively.
4. No consent, approval or authorization of, or registration with or notice
to any federal or [state] banking authority is required for the execution,
delivery or performance by the Property Trustee, the Guarantee Trustee or the
Debenture Trustee of the Trust Agreement, the Guarantee and the Indenture,
respectively.
C-1