EXHIBIT 1
1,350,000 SHARES
UNITED COMMUNITY BANKS, INC.
COMMON STOCK
PAR VALUE $1.00 PER SHARE
UNDERWRITING AGREEMENT
November 15, 2005
Sandler O'Neill & Partners, L.P.,
As representative of the several Underwriters
named in Schedule I hereto,
919 Third Avenue
6th Floor
New York, New York 10022
Ladies and Gentlemen:
United Community Banks, Inc., a Georgia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Sandler O'Neill & Partners, L.P. and the other Underwriters named in Schedule
I hereto (the "Underwriters"), for whom Sandler O'Neill & Partners, L.P. is
acting as representative (the "Representative") an aggregate of 1,350,000 shares
(the "Firm Shares") and, at the election of the Underwriters, up to 202,500
additional shares (the "Optional Shares") of the common stock, par value $1.00
per share ("Stock"), of the Company (the Firm Shares and the Optional Shares
that the Underwriters elect to purchase pursuant to Section 2 hereof being
collectively called the "Shares").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-116623) covering the
registration of the Shares and other securities of the Company under the
Securities Act of 1933, as amended (the "Act"), including a related prospectus,
which has become effective. The registration statement (including the exhibits
thereto and schedules thereto, if any) as amended at the time it
became effective, or, if a post-effective amendment has been filed with respect
thereto, as amended by such post-effective amendment at the time of its
effectiveness (including in each case the information (if any) deemed to be part
of such registration statement at the time of effectiveness pursuant to Rule
430A under the Act), is hereinafter referred to as the "Registration Statement."
The term "Effective Date" shall mean each date that the Registration Statement
and any post-effective amendment or amendments thereto became or become
effective. The term "Base Prospectus" shall mean the prospectus referred to in
Section 1(a)(i) hereof contained in the Registration Statement at the Effective
Date. "Preliminary Prospectus" means any preliminary prospectus supplement to
the Base Prospectus used prior to the filing of the Prospectus, together with
the Base Prospectus; the term "Prospectus" means the final prospectus supplement
to the Base Prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act, together with the Base Prospectus. Any registration statement
filed pursuant to Rule 462(b) under the Act is herein referred to as the "Rule
462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement.
Any reference in this Agreement to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the effective date of the Registration Statement or the
date of such Preliminary Prospectus or the Prospectus, as the case may be (it
being understood that the several specific references in this Agreement to
documents incorporated by reference in the Registration Statement or the
Prospectus are for clarifying purposes only and are not meant to limit the
inclusiveness of any other definition herein). For purposes of this Agreement,
all references to the Registration Statement, any Preliminary Prospectus, or the
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR"). All references in this
Agreement to financial statements and schedules and other information that is
"contained," "included" or "stated" in the Registration Statement, any
Preliminary Prospectus or the Prospectus (or other references of like import)
shall be deemed to mean and include all such financial statements and schedules
and other information that is incorporated by reference in the Registration
Statement, any Preliminary Prospectus or the Prospectus, as the case may be.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters that:
1. The Company satisfies the registrant eligibility requirements for
the use of Form S-3 under the Act set forth in General Instruction I.A to such
Form, and the transactions contemplated by this Agreement satisfy the
transaction eligibility requirements for the use of such Form set forth in
General Instruction I.B.1 to such Form; the Company has filed with the
Commission the Registration Statement on such Form, including a Base Prospectus,
for registration under the Act of the offering and sale of the Shares and other
securities of the Company, and the Company may have filed with the Commission
one or more amendments to such Registration Statement, each in the form
previously delivered to you. Such Registration Statement, as so amended, has
been declared effective by the Commission, and the Shares have been registered
under the Registration Statement in compliance with the requirements for the use
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of Form S-3. Although the Base Prospectus may not include all the information
with respect to the Shares and the offering thereof required by the Act and the
rules and regulations of the Commission thereunder to be included in the
Prospectus, the Base Prospectus includes all such information required by the
Act and the rules and regulations of the Commission thereunder to be included
therein as of the Effective Date. The Company has complied, to the Commission's
satisfaction, with all requests of the Commission for additional or supplemental
information; and no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Commission. After the execution of this Agreement, the
Company will file with the Commission pursuant to Rules 415 and 424(b)(2) or (5)
a final supplement to the Base Prospectus included in such Registration
Statement relating to the Shares and the offering thereof, with such information
as is required or permitted by the Act and as has been provided to and approved
by the Underwriters prior to the date hereof or, to the extent not completed at
the date hereof, containing only such specific additional information and other
changes (beyond that contained in the Base Prospectus and any Preliminary
Prospectus) as the Company has advised you, prior to the date hereof, will be
included or made therein. If the Company has elected to rely on Rule 462(b) and
the Rule 462(b) Registration Statement is not effective, (x) the Company will
file a Rule 462(b) Registration Statement in compliance with, and that is
effective upon filing pursuant to, Rule 462(b) and (y) the Company has given
irrevocable instructions for transmission of the applicable filing fee in
connection with the filing of the Rule 462(b) Registration Statement, in
compliance with Rule 111 under the Act, or the Commission has received payment
of such filing fee.
2. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in 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 information furnished in writing to the Company by an
Underwriter through the Representative or the Underwriters' counsel expressly
for use therein; there are no contracts or other documents required to be
described in the Prospectus or to be filed as exhibits to the Registration
Statement that have not been described or filed as required;
3. Each Preliminary Prospectus and the Prospectus when filed, if
filed by electronic transmission, pursuant to EDGAR (except as may be permitted
by Regulation S-T under the Act), was identical to the copy thereof delivered to
the Underwriters for use in connection with the offer and sale of the Shares;
the Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
conform, in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any amendment
thereto, and as of the applicable filing date as to 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 not misleading; provided, however, that this
representation and
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warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter through the Representative or the Underwriters' counsel expressly
for use therein;
4. The documents that are incorporated or deemed to be incorporated
by reference in the Registration Statement or any Preliminary Prospectus or the
Prospectus or from which information is so incorporated by reference (the
"Exchange Act Reports"), when they became effective or were filed with the
Commission, as the case may be (or, if an amendment with respect to any such
documents was filed or became effective, when such amendment was filed or became
effective), complied in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations of the Commission thereunder, and, when read together with the
other information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued and at any Time of
Delivery (as defined below) did not and will 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 to the statements therein not misleading;
5. The financial statements, including the related schedules and
notes, filed with the Commission as a part of the Registration Statement and
included in the Prospectus (the "Financial Statements") present fairly the
consolidated financial position of the Company and its subsidiaries as of and at
the dates indicated and the results of their operations and cash flows for the
periods specified; such Financial Statements, unless otherwise noted therein
have been prepared in conformity with generally accepted accounting principles
as applied in the United States ("GAAP") applied on a consistent basis
throughout the periods involved; no other financial statements or supporting
schedules are required to be included in the Registration Statement; the income
statement data, balance sheet data and earnings per share data for the six
fiscal years ended December 31, 2004 as set forth in the Prospectus under the
captions "Summary Consolidated Financial Data" fairly present the information
therein on a basis consistent with that of the audited financial statements
contained in the Registration Statement (unless otherwise noted); the income
statement data and earnings per share data for the nine months ended September
30, 2005 and 2004 and balance sheet data as of September 30, 2005 and 2004 as
set forth in the Prospectus under the captions "Summary Consolidated Financial
Data" fairly present the information therein on a basis consistent with that of
the unaudited financial statements contained in the Registration Statement; and
any pro forma financial statements and the related notes thereto included or to
be included in the Prospectus present fairly or will present fairly the
information shown therein, have been or will be prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial statements
and have been or will be properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are or will be reasonable and
the adjustments used therein are or will be appropriate to give effect to the
transaction and circumstances referred to therein;
6. Porter Keadle Moore, LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder, and such accountants are not in
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violation of the auditor independence requirements of the Sarbanes-Oxley Act of
2002 and the rules and regulations of the Commission promulgated thereunder (the
"Sarbanes-Oxley Act");
7. The statistical and market related data contained in the
Prospectus and Registration Statement are based on or derived from sources that
the Company believes are reliable and accurate;
8. This Agreement has been duly authorized, executed and delivered
by the Company;
9. Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development that may cause a
prospective material adverse change, in or affecting the general affairs,
management, financial position, business prospects, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus;
10. The Company and its subsidiaries have good and marketable title
in fee simple to all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances
and defects except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its subsidiaries;
11. The Company is a registered bank holding company under the Bank
Holding Company Act of 1956, as amended ("BHCA") with respect to United
Community Bank ("UCB-Georgia"), United Community Bank ("UCB-North Carolina" )
and United Community Bank Tennessee ("UCB-Tennessee") (UCB-Georgia, UCB-North
Carolina, and UCB-Tennessee are collectively referred to in this Agreement as
the "Banks") and has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business;
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12. Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and, in the case of each Bank, to enter into and perform its
obligations under this Agreement; each subsidiary of the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except for such jurisdictions where the failure to so qualify, or be in good
standing, would not, individually or in the aggregate, have a material adverse
effect on the business, properties, assets, current or future consolidated
financial position, business prospects, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole or on the
ability of the Company to consummate the transactions contemplated herein (a
"Material Adverse Effect"); all of the issued and outstanding capital stock of
each subsidiary has been duly authorized and validly issued, is fully paid and
nonassessable and is owned by the Company, directly or through subsidiaries; the
Company owns, directly or through subsidiaries, the issued and outstanding
capital stock of each subsidiary free and clear of any security interest,
mortgage, pledge, lien, encumbrance or claim; the Company does not own or
control, directly or indirectly, any corporation, association or other entity
other than the subsidiaries listed in Exhibit 21 to the Company's Annual Report
on Form 10-K for the fiscal year ended December 31, 2004 and such other entities
as are listed on Schedule II hereto; the activities of the subsidiaries of the
Banks are permitted to subsidiaries of a Georgia or North Carolina state
chartered commercial bank, as applicable (UCB-Tennessee has no subsidiaries),
and the deposit accounts of the Banks are insured up to the applicable limits by
the Federal Deposit Insurance Corporation (the "FDIC");
13. The Company has an authorized capitalization as set forth in the
Prospectus under the heading "Capitalization," and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and have been issued in compliance with
federal and state securities laws; none of the outstanding shares of Stock were
issued in violation of any preemptive rights, rights of first refusal or other
similar rights to subscribe for or purchase securities of the Company; the
description of the Company's stock option, stock bonus and other stock plans or
arrangements and the options or other rights granted thereunder, set forth or
incorporated by reference in the Prospectus accurately and completely presents,
in all material respects, the information required to be shown with respect to
such plans, arrangements, options and rights;
14. The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
15. Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance by the Company of, any
shares of capital stock of or other equity interest in the Company; and (B)
there
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are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
Registration Statement under the Act or otherwise register any securities the
Company owned or to be owned by such person;
16. The issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the articles of incorporation or charter (as applicable) or bylaws
of the Company or any of its subsidiaries or any statute or any order, rule or
regulation of any federal, state, local or foreign court or governmental agency
(each a "Governmental Entity") or body having jurisdiction over the Company or
any of its subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Shares or
the consummation by the Company of the transactions contemplated by this
Agreement, except the registration under the Act of the Shares and except as may
be required under the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD") and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Shares by
the Underwriters;
17. Neither the Company nor any of its subsidiaries is in violation
of its articles of incorporation or charter (as applicable) or bylaws or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
18. The statements set forth in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute a summary
of the terms of the Stock, are accurate and complete;
19. Except as disclosed in the Prospectus, the Company and its
subsidiaries are conducting their respective businesses in compliance in all
material respects with all federal, state, local and foreign statutes, laws,
rules, regulations, decisions, directives and orders applicable to them
(including, without limitation, all regulations and orders of, or agreements
with, the Georgia Department of Banking and Finance, the North Carolina
Commissioner of Banks, and the Tennessee Department of Financial Institutions
(collectively, the "State Regulatory Authorities"), the Federal Reserve Board
(the "FRB") and the FDIC, the Equal Credit Opportunity Act, the Fair Housing
Act, the Community Reinvestment Act, the Home Mortgage Disclosure Act, all other
applicable fair lending laws or other laws relating to discrimination and the
Bank Secrecy Act and Title III of the USA Patriot Act), and neither the Company
nor any of its subsidiaries has received any communication from any Governmental
7
Entity asserting that the Company or any of its subsidiaries is not in
compliance with any statute, law, rule, regulation, decision, directive or order
(other than instances of noncompliance cited in examination reports of
Governmental Entities that have not had are not reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect);
20. Except as disclosed in the Prospectus, there are no legal or
governmental actions or suits, investigations proceedings before or by any
Governmental Entity, now pending or, to the knowledge of the Company, threatened
or contemplated by Government Entities or threatened in writing by others, to
which the Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject (A) that is required to
be disclosed in the Registration Statement by the Act or by the rules and
regulations of the Commission thereunder and not disclosed therein or (B) that,
if determined adversely to the Company or any of its subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect; all pending
legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject, either
individually or in the aggregate, that are not described in the Registration
Statement, including ordinary routine litigation incidental to their respective
businesses, would not have a Material Adverse Effect; and there are no contracts
or documents of the Company or any of its subsidiaries that would be required to
be described in the Registration Statement or to be filed as exhibits thereto by
the Act or by the rules and regulations of the Commission thereunder that have
not been so described and filed;
21. Each of the Company and its subsidiaries possesses all permits,
licenses, approvals, consents and other authorizations of (collectively,
"Governmental Licenses"), and has made all filings, applications and
registrations with, all Governmental Entities to permit the Company or such
subsidiary to conduct the business now operated by the Company or its
subsidiaries; the Company and its subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to
comply would not, individually or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and effect,
except where the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not, individually or
in the aggregate, have a Material Adverse Effect; and neither the Company nor
any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses that, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect;
22. To the knowledge of the Company and its subsidiaries, no change
in any law or regulation is pending that would reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect, except as
described in the Prospectus;
23. Each of the Company and its subsidiaries is in compliance in all
material respects with all applicable federal, state and local environmental
laws and regulations, including, without limitation, those applicable to
emissions to the environment, waste management, and waste disposal
(collectively, the "Environmental Laws"), except where such noncompliance would
not be reasonably likely to have a Material Adverse Effect, or except as
8
disclosed in the Prospectus, and to the knowledge of the Company, there are no
circumstances that would prevent, interfere with or materially increase the cost
of such compliance in the future;
24. Except as disclosed in the Prospectus, there is no claim under
any Environmental Law, including common law, pending or, to the best knowledge
of the Company, threatened against the Company or its subsidiaries (an
"Environmental Claim"), that would be reasonably likely to have a Material
Adverse Effect, and, to the knowledge of the Company, under applicable law,
there are no past or present actions, activities, circumstances, events or
incidents, including, without limitation, releases of any material into the
environment, that are reasonably likely to form the basis of any Environmental
Claim against the Company or its subsidiaries that would be reasonably likely to
have a Material Adverse Effect;
25. Each of the Company and its subsidiaries owns or possesses
adequate rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of its business and has no
reason to believe that the conduct of its business will conflict with, and has
not received any notice of any claim of conflict with, any such rights of
others;
26. No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, customers or suppliers of
the Company on the other hand, that is required to be described in the
Registration Statement by the Act or by the rules and regulations of the
Commission thereunder that has not been so described;
27. The Company is not and, after giving effect to the offering and
sale of the Shares and after receipt of payment for the Shares and the
application of such proceeds as described in the Prospectus, will not be an
"investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
28. The Company is in compliance with the applicable provisions of
the Sarbanes-Oxley Act;
29. 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 Stock to
facilitate the sale or resale of the Shares;
30. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries
has (i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of 1977; or (iv)
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment;
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31. The Company maintains a system of accounting controls sufficient
to provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization; (B) transactions
are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain accountability for assets; (C) access to
assets is permitted only in accordance with management's general or specific
authorization; and (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
32. The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under
the Exchange Act); such disclosure controls and procedures (A) are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's Chief Executive
Officer and its Chief Financial Officer by others within those entities,
particularly during the periods in which the Exchange Act Reports are being
prepared, (B) have been evaluated for effectiveness as of the end of the
applicable annual or quarterly period reported to the Commission and (C) are
effective to perform the functions for which they were established; the
Company's auditors, the Audit Committee of the Board of Directors and the
Underwriters have been advised of: (A) any significant deficiencies in the
design or operation of internal controls that could adversely affect the
Company's ability to record, process, summarize, and report financial data, and
(B) any fraud, whether or not material, that involves management or other
employees who have a role in the Company's internal controls; any material
weaknesses in internal controls have been identified for the Company's auditors;
since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses; and the Company reasonably expects to file with the Commission in a
timely manner management's annual report on internal control over financial
reporting, required by Item 308(a) of Regulation S-K under the Act and the
Exchange Act, and the related attestation report of Porter Keadle Moore, LLP,
required by Item 308(b) of Regulation S-K under the Act and the Exchange Act;
33. Neither the Company nor any of its subsidiaries is subject or is
party to, or has received any notice or advice that any of them may become
subject or party to any investigation with respect to, any corrective,
suspension or cease-and-desist order, agreement, consent agreement or other
regulatory enforcement action, proceeding or order with or by, or is a party to
any commitment letter or similar undertaking to, or is subject to any directive
by, or has been a recipient of any supervisory letter from, or has adopted any
board resolutions at the request of, any Governmental Entity charged with the
supervision or regulation of depository institutions or engaged in the insurance
of deposits (including the FDIC) or the supervision or regulation of the Company
or any of its subsidiaries that currently relates to or restricts in any
material respect their business or their management (each, a "Regulatory
Agreement"), nor has the Company or any of its subsidiaries been advised by any
such Governmental Entity that it is considering issuing or requesting any such
Regulatory Agreement; there is no unresolved violation, criticism or exception
by any such Governmental Entity with respect to any report or
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statement relating to any examinations of the Company or any of its subsidiaries
that, in the reasonable judgment of the Company, is expected to result in a
Material Adverse Effect;
34. Each "employee benefit plan" (as defined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA")) established or
maintained by the Company, its subsidiaries or their "ERISA Affiliates" (as
defined below) is in compliance in all material respects with ERISA; "ERISA
Affiliate" means, with respect to the Company or a subsidiary, any member of any
group of organizations described in Section 414(b), (c), (m) or (o) of the
Internal Revenue Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such subsidiary
is a member; no "reportable event" (as defined under ERISA) has occurred or is
reasonably expected to occur with respect to any "employee benefit plan"
established or maintained by the Company, its subsidiaries or any of their ERISA
Affiliates; no "employee benefit plan" established or maintained by the Company,
its subsidiaries or any of their ERISA Affiliates, if such "employee benefit
plan" were terminated, would have any "amount of unfunded benefit liabilities"
(as defined under ERISA); none of the Company, its subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under
(A) Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (B) Sections 412, 4971, 4975 or 4980B of the Code;
each "employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified, and nothing has occurred
whether by action or failure to act, that would cause the loss of such
qualification;
35. The Company and its subsidiaries, taken as a whole, are insured
by insurers of recognized financial responsibility against such losses and risks
and in such amounts as are customary in the business in which they are engaged;
and neither the Company nor any of its subsidiaries has any reason to believe
that it will not be able to renew its existing insurance coverage from similar
insurers as may be necessary to continue its business at a cost that would not
have a Material Adverse Effect; neither the Company nor any subsidiary has been
denied any insurance coverage that it has sought or for which it has applied;
36. Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would give
rise to a valid claim against the Company, or any Underwriter, for a brokerage
commission, finder's fee or other like payment;
37. The Company and its consolidated subsidiaries and its other
subsidiaries have filed all necessary federal, state and foreign income and
franchise tax returns or have properly requested extensions thereof and have
paid all taxes required to be paid by any of them; the Company has made adequate
charges, accruals and reserves in the applicable financial statements referred
to in Section 1(a)(v) above in respect of all federal, state and foreign income
and franchise taxes for all periods as to which the tax liability of the Company
or any of its consolidated subsidiaries or any of its other subsidiaries has not
been finally determined;
11
38. The Company is in compliance with the corporate governance and
other rules and requirements of the Nasdaq National Market; and
39. No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in the
Registration Statement and the Prospectus has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
(b) Each Bank represents and warrants to, and agrees with, each of
the Underwriters that:
1. Such Bank has been duly chartered and is validly existing as a
commercial bank in good standing under the laws of the jurisdiction of its
organization, with the corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; such Bank is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business;
2. Neither such Bank nor any of its subsidiaries is in violation of
its certificate of incorporation or charter (as applicable) or bylaws or is in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
3. This Agreement has been duly authorized, executed and delivered
by such Bank; and
4. The execution, delivery and performance of this Agreement by such
Bank and the compliance by the Bank with all of the provisions of this Agreement
and the consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Bank or any of its
subsidiaries is a party or by which the Bank or any of its subsidiaries is bound
or to which any of the property or assets of the Bank or any of its subsidiaries
are subject, nor will such action result in any violation of the provisions of
the certificate of incorporation or charter (as applicable) or bylaws of the
Bank or any statute or any order, rule or regulation of any Governmental Entity
having jurisdiction over the Bank or any of its subsidiaries or any of its
properties.
(c) Any certificate signed by an officer of the Company or a Bank
and delivered to you or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company or the Bank, as the case may be, to
each Underwriter as to the matters set forth therein.
12
2. Subject to the terms and conditions herein set forth, (a) the Company
agrees to issue and sell to each of the Underwriters, severally and not jointly,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at a purchase price per share of $26.22, the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto and (b) in
the event and to the extent that the Underwriters shall exercise their election
to purchase Optional Shares as provided below, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, at the purchase price per share
set forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares that such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 202,500 Optional Shares, at the purchase price per share
set forth in clause (a) of the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm Shares. Any such election to
purchase Optional Shares may be exercised only by written notice from you to the
Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased
and the date on which such Optional Shares are to be delivered, as determined by
you but in no event earlier than the First Time of Delivery (as defined in
Section 4 hereof) or, unless you and the Company otherwise agree in writing, no
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Representative may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to the
Representative through the facilities of the Depository Trust Company ("DTC"),
for the account of such Underwriter, against payment by or on behalf of such
Underwriter of the purchase price therefor by wire transfer of Federal (same
day) funds to the account specified by the Company to the Representative at
least 48 hours in advance. The Company will cause the certificates representing
the Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the Firm
Shares, 10:00 a.m., Eastern time, on November 21, 2005 or such other time and
date as the Representative and the Company may agree upon in writing, and, with
respect to the Optional Shares, 10:00 a.m., New York time, on the date specified
by the Representative in the written notice given by the Representative of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as the Representative and the Company may agree upon in writing. Such time
and
13
date for delivery of the Firm Shares is herein called the "First Time of
Delivery," such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery," and each
such time and date for delivery is herein called a "Time of Delivery."
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(k) hereof, will be delivered at the Atlanta,
Georgia offices of Nelson Mullins Riley & Scarborough LLP (the "Closing
Location"), and the Shares will be delivered at the Designated Office, all at
such Time of Delivery. A meeting will be held at the Closing Location at 10:00
a.m., Eastern Time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier time
as may be required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus that
shall be disapproved by you promptly after reasonable notice thereof; to advise
you, promptly after it receives notice thereof, of the time when any amendment
to the Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and to
furnish you with copies thereof; to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or prospectus or
suspending any such qualification, promptly to use its best efforts to obtain
the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Shares, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
14
(c) Prior to 10:00 a.m., Eastern Time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus at such locations and in such
quantities as you may from time to time reasonably request, and, if the delivery
of a prospectus is required at any time in connection with the offering or sale
of the Shares and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary during such period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act or
the Exchange Act, to notify you and upon your request to file such document and
to prepare and furnish without charge to each Underwriter and to any dealer in
securities as many written and electronic copies as you may from time to time
reasonably request of an amended Prospectus or a supplement to the Prospectus
that will correct such statement or omission or effect such compliance, and in
case any Underwriter is required to deliver a prospectus in connection with
sales of any of the Shares at any time nine months or more after the time of
issue of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many copies as you
may reasonably request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
to and including the date 90 days after the date of the Prospectus, not to, and
to use its best efforts not to allow its directors, and executive officers to,
directly or indirectly, offer, sell, contract or grant any option to sell,
pledge, transfer or establish an open "put equivalent position" within the
meaning of Rule 16a-l(h) under the Exchange Act, or otherwise dispose of or
transfer, or announce the offering of, or file a registration statement under
the Act in respect of, except as provided hereunder, any securities of the
Company that are substantially similar to the Shares, including but not limited
to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option or restricted stock
plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement), without
your prior written consent;
(f) During a period of five years from the effective date of the
Registration Statement, to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
15
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), to make available to its shareholders
consolidated summary financial information of the Company and its subsidiaries
for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and (ii)
consistent with the Company's obligations under Regulation FD, such additional
information concerning the business and financial condition of the Company as
you may from time to time reasonably request (such financial statements to be on
a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its shareholders generally
or to the Commission);
(h) To use the net proceeds received by it from the sale of the
Shares pursuant to this Agreement in the manner specified in the Prospectus
under the caption "Use of Proceeds";
(i) If the Company elects to rely on Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) by 10:00 p.m., Eastern Time on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act;
(j) To use its best efforts to list for quotation the Shares on the
Nasdaq National Market System;
(k) During the period beginning on the date hereof and ending on the
later of the fifth anniversary of the First Time of Delivery or the date on
which the Underwriters receive full payment in satisfaction of any claim for
indemnification or contribution to which they may be entitled pursuant to
Section 9 of this Agreement, neither the Company nor the Banks shall, without
the prior written consent of Sandler O'Neill & Partners, L.P., take or permit to
be taken any action that could result in the Banks' common stock becoming
subject to any security interest, mortgage, pledge, lien or encumbrance;
provided, however, that this covenant shall be null and void if the FRB, any
State Regulatory Agency, the FDIC, or any other federal agency having
jurisdiction over any Bank, by regulation, policy statement or interpretive
release or by written order or written advice addressed to the Bank or Banks and
specifically addressing the provisions of Section 8 hereof, permits
indemnification of the Underwriters by the Banks as contemplated by such
provisions;
(l) The Company will comply with the Sarbanes-Oxley Act; and
(m) The Company will comply with the corporate governance and other
rules and requirement of the Nasdaq National Market.
16
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following, whether or not the
transactions contemplated herein are completed: (i) the reasonable out-of-pocket
expenses incurred by the Underwriters in connection with the transactions
contemplated hereby, including, without limitation, disbursements, fees and
expenses of Underwriters' counsel (not to exceed $100,000) and marketing,
syndication and travel expenses; (ii) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with the registration of the
Shares under the Act and all other expenses in connection with the preparation,
printing and filing of amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (iii) the cost of
printing or producing any agreement among Underwriters, this Agreement, the Blue
Sky survey, closing documents (including any compilations thereof) and any other
documents in connection with the offering, purchase, sale and delivery of the
Shares; (iv) all expenses in connection with the qualification of the Shares for
offering and sale under state securities as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(v) all fees and expenses in connection with listing the Shares on the Nasdaq
National Market; (vi) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, securing any
required review by the NASD of the terms of the sale of the Shares; (vii) the
cost of preparing stock certificates; (viii) the cost and charges of any
transfer agent or registrar; (ix) the cost of obtaining all securities and
regulatory approvals, if any, from any applicable Governmental Entity; and (x)
all other costs and expenses incident to the performance of its obligations
hereunder that are not otherwise specifically provided for in this Section.
7. The obligations of the several Underwriters hereunder, as to the Shares
to be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with Section
5(a) hereof (or a post-effective amendment shall have been filed and declared
effective in accordance with the requirements of Rule 430A); if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Eastern Time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction; and the NASD shall have
raised no obligation to the fairness and reasonableness of the underwriting
terms and arrangements;
(b) Nelson Mullins Riley & Scarborough LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, with
17
respect to such matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Kilpatrick Stockton LLP, counsel for the Company, shall have
furnished to you their written opinion (upon which Nelson Mullins Riley &
Scarborough LLP may rely), dated such Time of Delivery, in form and substance
satisfactory to you, with respect to the matters set forth the attached Exhibit
A, or to such further effect as Nelson Mullins Riley & Scarborough LLP may
reasonably request;
(d) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., Eastern Time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Porter Keadle Moore,
LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, with respect to
the financial statements of the Company and certain financial information
contained in the Prospectus.
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus, and
(ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries (except for advances to
one or more of the Banks from the Federal Home Loan Banks in the ordinary course
of business consistent with past practice) or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is in the judgment of the Representative so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Company's
debt securities;
(g) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on the Nasdaq; (ii) a suspension or
material limitation in trading in the Company's securities on the Nasdaq; (iii)
a general moratorium on commercial banking
18
activities declared by the Federal, New York, Georgia, Tennessee or North
Carolina authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war; or (v) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, including without
limitation, as a result of terrorist activities occurring after the date hereof,
if the effect of any such event specified in clause (iv) or (v), in the judgment
of the Representative makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been
duly listed for quotation on the Nasdaq National Market;
(i) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from each officer and director of the Company,
substantially to the effect set forth in Subsection 5(e) hereof in form and
substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(k) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company
satisfactory to you as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably request.
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 you,
on behalf of the Underwriters, by notice to the Company at any time on or prior
to the Time of Delivery. If the sale of the Shares provided for herein is not
consummated because any condition set forth in this Section 7 is not satisfied,
because of any termination pursuant to Section 11(a) hereof, or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will reimburse
the Underwriters upon demand for all documented out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by the Underwriters in connection with the proposed offering of the
Shares. In addition, such termination shall be subject to Section 6 hereof, and
Sections 1, 8 and 10 hereof shall survive any such termination and remain in
full force and effect.
8. (a) The Company and the Banks, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
19
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and the Banks shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representative expressly for use therein (provided that the Company, the Banks
and the Underwriters hereby acknowledge and agree that the only information that
the Underwriters have furnished to the Company specifically for inclusion in the
Registration Statement, any Preliminary Prospectus (or any amendment or
supplement thereto) are the share allocation, concession and reallowance figures
appearing in the Prospectus in the section entitled "Underwriting").
Notwithstanding the foregoing, the indemnification provided for in this
paragraph (a) shall be limited with respect to each Bank to the extent that any
Governmental Entity provides to the Company or any Bank (i) a notice of charges,
(ii) an advisement that a notice of assessment of civil money penalties is being
considered, or (iii) a notice of assessment of civil money penalties as a result
of Bank indemnification. The Company and the Banks agree to notify the
Representative immediately upon receipt of such notice or advisement and to seek
in good faith the withdrawal of such notice or advisement from such Governmental
Entity. If such notice or advisement is not withdrawn after such good faith
efforts, then the indemnification obligation hereunder shall be limited for each
Bank to an aggregate amount equal to the largest amount that would be permitted
under such notice or advisement.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative expressly for use therein (provided that the Company and the
Underwriters hereby acknowledge and agree that the only information that the
Underwriters have furnished to the Company specifically for inclusion in the
Registration Statement, any Preliminary Prospectus (or any amendment or
supplement thereto) are the share allocation, concession and reallowance figures
appearing in the Prospectus in the section entitled "Underwriting"); and will
reimburse the Company for any legal
20
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability that it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party which consent shall not be
unreasonably withheld, be counsel to the indemnifying party) provided, however,
if the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to its and/or other indemnified parties that are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties, and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with local counsel),
approved by the indemnifying party or (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party. The
indemnifying party under this Section 8 shall not be liable for any settlement
of any proceedings effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by this Section 8(c), the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request (other than those fees and expenses that are being contested
in good faith) prior to the date of such settlement. No indemnifying party
shall, without the written consent of the indemnified party, effect the
21
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
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) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Banks and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Shares underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such underwriter has otherwise
been required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The
22
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint. For
purposes of this Section 8, each officer and employee of an Underwriter and each
person, if any, who controls an Underwriter within the meaning of the Act and
the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company with
the meaning of the Act and the Exchange Act shall have the same rights to
contribution as the Company.
(e) The obligations of the Company and the Banks under this Section
8 shall be in addition to any liability that the Company or the Banks may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act or
who is an affiliate or partner of any Underwriter; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company, and to each other
person, if any, who controls the Company within the meaning of the Act or who is
an affiliate of the Company.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares that it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus that in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares that
remains unpurchased does not exceed one-tenth of the aggregate number of all the
Shares to be purchased at such Time of Delivery, then the Company shall have the
right to require each non-defaulting Underwriter to purchase the number of
shares that such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares that such Underwriter
agreed to purchase hereunder) of the Shares of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
23
(c) If, after giving effect to any arrangements for the purchase of
the Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares that
remains unpurchased exceeds one-tenth of the aggregate number of all the Shares
to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. (a) The Representative may terminate this Agreement, by notice to the
Company, at any time on or prior to the Time of Delivery if, since the time of
execution of this Agreement or, in the case of (i) below, since the date of the
most recent balance sheet included in the Financial Statements, there has
occurred, (i) any Material Adverse Effect, or (ii) a suspension or material
limitation in trading in the Company's securities on the Nasdaq National Market;
(iii) a general moratorium on commercial banking activities declared by the
Federal, New York, Georgia, North Carolina or Tennessee authorities or a
material disruption in commercial banking or securities settlement or clearance
services in the United States; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war; or (v) the occurrence of any other calamity or crisis
or any change in financial, political or economic conditions in the United
States or elsewhere, including without limitation, as a result of terrorist
activities occurring after the date hereof, if the effect of any such event
specified in clause (iv) or (v), in the judgment of the Representative makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus.
(b) If this Agreement is terminated pursuant to this Section 11,
such termination shall be without liability of any party to any other party
except as provided in Section 6 hereof and provided further that Sections 1, 8
and 10 hereof shall survive such termination and remain in full force and
effect.
24
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representative at 919 Third Avenue, 6th
Floor, New York, NY 10022, Attention: General Counsel; and if to the Company
shall be delivered or sent by mail or facsimile to 63 Highway 515, P.O. Box 398,
Blairsville, Georgia 30514, Attention: Jimmy Tallent; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered
or sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES
OF SAID STATE OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
THE COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES, HEREBY IRREVOCABLY
SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS
LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING RELATED TO THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY,
IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND ITS
SUBSIDIARIES, IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
25
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
17. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties hereto.
[Signatures on Next Page]
26
If the foregoing is in accordance with your understanding, please sign and
return to us four counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Company and
the Banks. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, but without warranty on your part as to the
authority of the signer thereof.
Very truly yours,
UNITED COMMUNITY BANKS, INC.
By: /s/ Jimmy C. Tallent
-----------------------------------------
Name: Jimmy C. Tallent
Title: President and Chief Executive Officer
UNITED COMMUNITY BANK
[GEORGIA]
By: /s/ Rex S. Schuette
-----------------------------------------
Name: Rex S. Schuette
Title: Chief Financial Officer
UNITED COMMUNITY BANK
[NORTH CAROLINA]
By: /s/ Rex S. Schuette
-----------------------------------------
Name: Rex S. Schuette
Title: Chief Financial Officer
UNITED COMMUNITY BANK TENNESSEE
By: /s/ Rex S. Schuette
------------------------------------------
Name: Rex S. Schuette
Title: Chief Financial Officer
27
Accepted as of the date hereof:
SANDLER O'NEILL & PARTNERS, L.P.
As representative of the Underwriters
By: Sandler O'Neill & Partners Corp.,
the sole general partner
By: /s/ Michael Lacovard
------------------------------
Name: Michael Lacovard
------------------------------
Title: Secretary
------------------------------
28
Schedule I
NUMBER OF OPTIONAL
SHARES
TOTAL NUMBER OF TO BE PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
- -------------------------------- --------------- ------------------
Sandler O'Neill & Partners, L.P. 742,500 111,376
Keefe, Bruyette & Woods, Inc. 303,750 45,562
Raymond James & Associates, Inc. 303,750 45,562
Total 1,350,000 202,500
Schedule II
List of Subsidiaries
United Community Development Corp.
United Community Charitable Foundation, Inc.
Schedule III
List of Shareholders
A. William Bennett
Robert H. Blalock
Guy Freeman
Bill M. Gilbert
Thomas C. Gilliland
Robert L. Head, Jr.
Charles E. Hill
Hoyt Holloway
Alan Kumler
Clarence W. Mason, Sr.
Craig Metz
W.C. Nelson, Jr.
Rex Schuette
Jimmy C. Tallent
Tim Wallis
Ray Williams
Exhibit A
Form of Opinion of Company Counsel
1. The Company is a registered bank holding company under the BHCA;
the Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Georgia, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus and to enter into and performs its obligations
under the Agreement;
2. The Company has an authorized capitalization as set forth in the
Prospectus under the heading "Capitalization," and all of the issued shares of
capital stock of the Company (including the Shares being delivered at such Time
of Delivery) have been duly and validly authorized and issued and are fully paid
and nonassessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
3. Except as described in the Prospectus, (A) there are no
outstanding rights (contractual or otherwise), warrants or options to acquire,
or instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of capital
stock of or other equity interests in the Company; and (B) there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act or otherwise register any securities of the Company
owned or to be owned by such person;
4. The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, or is subject to any liability or disability
by reason of failure to be so qualified in any jurisdiction, except where such
failure to be so qualified would not have a Material Adverse Effect;
5. Each of the Company's subsidiaries either has been duly
incorporated and is validly existing as a corporation or has been duly chartered
and is validly existing as a Georgia, North Carolina, or Tennessee state
chartered commercial bank, as applicable, in each case, in good standing under
the laws of the jurisdiction of its incorporation and has the corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; each of the Company's subsidiaries is
duly qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except for such jurisdictions where the failure to so qualify, or be
in good standing would not, individually or in the aggregate, have a Material
Adverse Effect; the activities of the subsidiaries of the Banks are activities
permitted to subsidiaries of a Georgia, North Carolina, or Tennessee state
chartered commercial bank, as applicable, under applicable law and the rules and
regulations of the State Regulatory Agencies, and the deposit accounts of the
Banks are insured up to the applicable limits by the FDIC; all of the issued and
outstanding capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is
owned by the Company, directly or through subsidiaries; the Company owns,
directly or through subsidiaries, the issued and outstanding capital stock of
each subsidiary free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim; the Company does not own or control, directly or
indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 2004 and such other entities as are
listed on Schedule II hereto;
6. Except as disclosed in the Prospectus, the Company and its
subsidiaries are conducting their respective businesses in compliance in all
material respects with all laws, rules, regulations, decisions, directives and
orders (including, without limitation, all regulations and orders of, or
agreements with, the FDIC, the FRB, the State Regulatory Agencies, the Equal
Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act,
the Home Mortgage Disclosure Act and all other applicable fair lending laws or
other laws relating to discrimination and the Bank Secrecy Act and Title III of
the USA Patriot Act), and neither the Company nor any of its subsidiaries has
received any communication from any Governmental Entity asserting that the
Company or any of its subsidiaries is not in compliance with any statute, law,
rule, regulation, decision, directive or order; there is no action, suit,
investigation or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the knowledge
of such counsel, threatened or contemplated against or affecting the Company or
any of its subsidiaries (A) that is required to be disclosed in the Registration
Statement and not disclosed therein, (B) that could result, individually or in
the aggregate, in any Material Adverse Effect, (C) that could materially and
adversely affect the properties, assets or leasehold interests of the Company
and its subsidiaries, considered as one enterprise, or (D) that could adversely
affect the consummation of the transactions contemplated in the Agreement; all
pending legal or governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their property is the subject, that
are not described in the Registration Statement, including ordinary routine
litigation incidental to their respective businesses, either individually or in
the aggregate, would not have a Material Adverse Effect;
7. The Agreement has been duly authorized, executed and delivered by
the Company and the Banks;
8. The issue and sale of the Shares being delivered at such Time of
Delivery by the Company and the compliance by the Company with all of the
provisions of the Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the articles of
incorporation or charter (as applicable) or bylaws of the Company or any statute
or any order, rule or regulation known to such counsel of any court or
Governmental Entity;
9. No consent, approval, authorization, order, registration or
qualification of or with any court or Governmental Entity is required for the
issue and sale of the Shares or the consummation by the Company of the
transactions contemplated by the Agreement, except the
registration under the Act of the Shares, and except as may be required under
the rules and regulations of the NASD and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters;
10. Neither the Company nor any of its subsidiaries is in violation
of its articles of incorporation or charter (as applicable) or bylaws or, to
such counsel's knowledge, in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
11. The statements set forth in the Prospectus under the caption
"Description of Common Stock," insofar as they purport to constitute a summary
of the terms of the Stock, and under the caption "Underwriting," insofar as they
purport to describe the provisions of the laws and documents referred to
therein, are accurate and complete;
12. To the best of such counsel's knowledge, each of the Company and
its subsidiaries possesses all Governmental Licenses and has made all filings,
applications and registrations with all Governmental Entities that are required
in order to permit the Company or such subsidiary to conduct its business as
presently conducted, except where the failure to possess such Governmental
License or to have made such filing, application or registration would not,
individually or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except where the
invalidity of such Governmental Licenses to be in full force and effect,
individually or in the aggregate, would not have a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect;
13. To the best of such counsel's knowledge, neither the Company nor
any of its subsidiaries is subject or is party to, or has received any notice or
advice that any of them may become subject or party to any investigation with
respect to, any Regulatory Agreement, nor has the Company or any of its
subsidiaries been advised by any Governmental Entity that it is considering
issuing or requesting any such Regulatory Agreement; there is no unresolved
violation, criticism or exception by any Governmental Entity with respect to any
report or statement relating to any examinations of the Company or any of its
subsidiaries that, in the reasonable judgment of the Company, is expected to
result in a Material Adverse Effect;
14. The Company is not, and after giving effect to the offering and
sale of the Shares and after receipt of payment for the Shares and the
application of such proceeds as described in the Prospectus, will not be, an
"investment company" or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act;
15. The documents incorporated by reference in the Prospectus (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder; and they have no reason to believe that any such documents, when
such documents were so filed, contained an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
documents were so filed, not misleading;
16. The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and regulations
thereunder; and such counsel does not know of any contracts or other agreements
of a character required to be incorporated by reference into the Prospectus or
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or Prospectus that are not filed or
incorporated by reference or described as required; and
17. The Company is in compliance with the applicable provisions of
the Sarbanes-Oxley Act and the corporate governance and other rules and
regulations of the Nasdaq National Market.
In addition, although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred to in the
opinion in subsection (xii) above, they have no reason to believe that, as of
its effective date, the Registration Statement or any further amendment thereto
made by the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules therein, as to which such
counsel need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or that, as of such Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need express
no opinion) contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and they do not know
of any amendment to the Registration Statement required to be filed that has not
been filed.