EXHIBIT 99.2
16
III/912117
CAROLINA FIRST CORPORATION
PLACEMENT AGENT AGREEMENT
January 20, 1998
Kelton International Limited
35 Curzon Street
London W1Y 7AE
England
Dear Sirs:
1. Introduction
1.1 Carolina First Corporation, a South Carolina corporation (the
"Company") intends to offer and sell up to 2,000,000 shares (the
"Shares") of its common stock, par value $1.00 per share (the "Common
Stock") to investors who are not "U.S. persons" as defined in Regulation
S ("Regulation S") under the United States Securities Act of 1933, as
amended (the "Securities Act"), pursuant to purchase agreements (the
"Purchase Agreements") to be entered into by the Company and each such
investor (a "Purchaser" and collectively, "the Purchasers"), in reliance
upon and in conformity with an exemption from the registration
requirements of the Securities Act pursuant to Regulation S.
1.2 The Company has prepared a preliminary private placement memorandum
dated the date hereof and will prepare, after pricing, a final private
placement memorandum (collectively, the "Private Placement Memorandum"),
describing, among other things, the Shares, and providing material
information about the Company and the terms of the offering. Copies of
the Private Placement Memorandum and all amendments thereof and
supplements thereto, if any, to date are being or have been delivered to
you.
1.3 The Company has requested Kelton International Limited ("Kelton") to
assist the Company as placement agent in the placement of the Shares,
and Kelton has indicated its willingness to do so, subject to the
satisfactory completion of such investigation and inquiry into the
Company's business as it deems appropriate under the circumstances and
subject to the conditions set forth hereof.
2. Appointment of Placement Agent; Placement of Shares
2.1 The Company hereby appoints Kelton as exclusive placement agent in
connection with the placement of all of the Shares for the period (the
"Placement Period") terminating on the Placement Termination Date
hereinafter referred to. Subject to the performance in all material
respects by the Company of its obligations to be performed hereunder,
and to the completeness and accuracy in all material respects of all of
the representations and warranties of the Company contained herein,
Kelton hereby accepts such agency and agrees on the terms and conditions
herein set forth to use its best efforts during the Placement Period to
find qualified subscribers for all of the Shares. The agency hereunder,
which is coupled with an interest and, therefore, is not terminable by
the Company without Kelton's permission, shall continue until the close
of business on March 26, 1998,
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unless the Company elects to extend the Placement Period for an
additional period of thirty (30) days or unless the Company and Kelton
agree that the Placement Period shall be further extended for such a
further additional period, except that, in any event, the agency
hereunder shall terminate on the date of the final issuance of the
Shares (the "Closing Date"). The date on which the agency hereunder is
terminated is hereinafter referred to as the "Placement Termination
Date".
2.2 In the event the offering is commenced and no Shares shall have been
subscribed for prior to the Placement Termination Date, the agency
hereunder and this Placement Agent Agreement shall terminate without
obligation on Kelton's part or on the part of the Company except as
provided in section 5 hereof and except that the indemnification and
contribution provided for in section 8 hereof shall continue after such
termination of this Placement Agent Agreement.
2.3 Kelton shall not, in fulfilling its obligations hereunder, act as
underwriter for the Shares, and is in no way obligated, directly or
indirectly, to advance its own funds to purchase any Shares.
2.4 Notwithstanding anything herein to the contrary, the Company shall
not be obligated to sell any of the Shares unless Kelton shall have
found qualified subscribers for such Shares.
3. Certain Agreements of the Company
The Company hereby agrees with Kelton that:
3.1 During the Placement Period, neither the Company or any affiliate of
the Company nor anyone acting on behalf of the Company or any such
affiliate, other than Kelton, shall, directly or indirectly, offer or
sell, or attempt to offer, sell or dispose of, any of the Shares, or
solicit any offer to buy, or otherwise approach or negotiate in respect
of, any of the Shares.
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3.2 As soon as practicable after the date hereof, but not later than
five (5) business days prior to the Closing Date, the Company shall
furnish to Kelton as many copies of the Private Placement Memorandum and
of each revision or amendment thereof or supplement thereto (including
exhibits included therewith) as Kelton may reasonably request.
3.3 If any event shall occur as a result of which it is necessary, in
the opinion of Kelton, to amend or supplement the Private Placement
Memorandum in order to correct any untrue statement of a material fact
or 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, the Company shall forthwith
prepare and furnish to Kelton, a reasonable number of copies of an
amendment of or supplement to the Private Placement Memorandum (in form
and substance satisfactory to Kelton), so that, as so amended or
supplemented, the Private Placement Memorandum 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 the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company will not at any time amend or supplement the
Private Placement Memorandum (i) prior to having furnished Kelton with a
copy of the proposed form of the amendment or supplement and giving
Kelton a reasonable opportunity to review the same or (ii) in a manner
to which Kelton or its counsel shall reasonably object.
3.4 The Company shall furnish such information, execute such instruments
and take such action, if any, as may be required to effect the placement
of the Shares under the securities laws of each jurisdiction in which
the Shares are offered for sale or sold; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
3.5 The Company shall furnish or make available to Kelton and its
counsel such additional documents and information regarding the Company
and its affairs as Kelton may from time to time reasonably request,
including any and all documentation reasonably requested in connection
with its due diligence efforts regarding information in the Private
Placement Memorandum and in order to evidence the accuracy or
completeness of any of the conditions contained in this Placement Agent
Agreement; and all actions taken by the Company to authorize the
issuance and sale of the Shares shall be reasonably satisfactory in form
and substance to Kelton.
3.6 The Company shall, at all times upon reasonable request from the
date hereof through the Closing Date, (i) make available to each
subscriber or its advisers, or both, prior to acceptance of its
subscription, such information (in addition to that contained in the
Private Placement Memorandum) concerning the offering, the Company and
any other relevant matters as it possesses or can acquire without
unreasonable effort or expense, and (ii) provide each subscriber or its
advisers, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers from, the Company
with respect to such matters.
3.7 The Company will not at any time issue a press release to announce
the offering or placement of the Shares (i) without the prior consent of
Kelton, (ii) prior to having furnished Kelton with a copy of the
proposed form of the press release and giving Kelton a reasonable
opportunity to review and comment upon the same or (iii) in a manner to
which Kelton or its counsel shall reasonably object. Any such press
release shall comply with the requirements of Rule 135c under the
Securities Act.
3.8 The Company shall file with The National Association of Securities
Dealers, Inc. and/or the United States Securities and Exchange
Commission (the "Commission") all necessary filings in respect of the
issuance and sale of the Shares being issued and sold by the Company and
the listing thereof on The NASDAQ Stock Market and shall provide to
Kelton and its legal counsel a copy of all such definitive filings (and
any
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amendments thereof or supplements thereto including in each case
exhibits thereto).
3.9 Immediately after the Closing (and in no case later than ten (10)
days after the Closing Date), the Company will prepare and file with the
Commission a registration statement on Form S-3 (or such other form as
may be available) (the "Registration Statement") with respect to the
Shares, providing for the sale of the Shares by the Purchasers from time
to time during the period provided for in section 3.11 hereof in
permitted public sales or in privately negotiated transactions.
3.10 The Company will use its best efforts to cause the Registration
Statement to become effective on or before the thirtieth day after the
date of filing (and if not effective by such date, as soon as possible
thereafter) provided the Company has timely received from Kelton the
information regarding the Purchasers necessary to such effectiveness,
and, upon such effectiveness, the Company will cause the Registration
Statement to remain effective for the period provided for in section
3.11 hereof.
3.11 Subject to section 3.10 hereof, the Company will prepare and file
with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith and any other
documents as may be necessary to keep the Registration Statement
effective and current until all the Shares have been sold pursuant
thereto by the Purchasers or until ninety (90) days after the date on
which the Registration Statement is declared effective, whichever is
earlier.
3.12 The Company will furnish Kelton, as broker for the Purchasers, such
number of copies of prospectuses in conformity with the requirements of
the Securities Act and such other documents as Kelton may reasonably
request, in order to facilitate the public sale or other disposition of
all or any of the Shares owned by the Purchasers; provided, however,
that the obligation of the Company to deliver copies of prospectuses to
Kelton shall be subject to the receipt by the Company of reasonable
assurances from Kelton that Kelton will comply with the applicable
provisions of the Securities Act, the United States Securities Exchange
Act of 1934 (the "Exchange Act"), as amended, and such other securities
laws and regulations as may be applicable in connection with any use of
such prospectuses.
3.13 The Company agrees to pay all of its expenses in connection with
the registration of the Shares with the Commission, including all fees,
disbursements and expenses of the Company's legal counsel and
accountants in connection with the preparation, printing and filing of
the Registration Statement and all amendments and supplements thereto
and the delivery of copies thereof to Kelton.
3.14 Until removed pursuant to section 2.3 of the Purchase Agreements,
the stock certificates representing the Shares shall bear the legend set
forth hereof:
"The shares of Common Stock represented by this
certificate have not been registered under the United
States Securities Act of 1933, as amended (the "Act"),
or any other securities laws, and have been issued in
reliance upon the exemption from registration under
the Act contained in Regulation S under the Act. Prior
to 40 days following the date of the closing of the
sale of the last Share sold pursuant to the Private
Placement Memorandum dated January **, 1998, no offer,
sale, transfer, pledge or other disposition
(collectively, a "Disposal") of the shares of Common
Stock represented by this certificate may be made: (a)
in the United States or to, or for the account or
benefit of, any "U.S. person" (as defined in
Regulation S) unless (i) registered under the Act and
any applicable state securities and blue sky laws or
(ii) exemptions from the registration requirements of
such laws are available and Carolina First Corporation
("CFC") receives a written opinion of United States
legal counsel in form and substance satisfactory to it
to the effect that such Disposal is exempt from such
registration requirements; and (b) outside of
III/912117 -5-
the United States or to, or for the account or benefit
of a person who is not a "U.S. person" (as defined in
Regulation S) unless (i) the beneficial owner of such
shares and the proposed transferee submit certain
certifications to CFC and (ii) CFC receives a written
opinion of United States legal counsel in form and
substance satisfactory to it to the effect that such
Disposal is exempt from the registration requirements
of the Act."
3.15 The Company shall cause Reliance Trust Company of Atlanta, Georgia,
the transfer agent for the Common Stock, or any successor transfer agent
thereto (the "Transfer Agent") to deliver to any Purchaser or subsequent
holder who has received a stock certificate representing Shares which
bears the legend described in section 3.14 hereof (the "Legended Stock
Certificate"), within three (3) business days after the first to occur
of (a) the effectiveness of the Registration Statement or (b) the
expiration of the Restricted Period (as defined in the Purchase
Agreements) or at any subsequent time requested by a Purchaser or
subsequent holder, a substitute stock certificate or stock certificates
representing such Shares without any restrictive legend, including, but
not limited to, the restrictive legend described in section 3.14 hereof.
The Company shall require the Transfer Agent to deliver such substitute
stock certificate or certificates without cost only upon surrender of
the Legended Stock Certificate or Certificates which, in the case of any
holder subsequent to the Purchaser, must be duly endorsed for transfer
or surrender and in the case of a subsequent holder, such surrender must
be accompanied by payment of any amount necessary to be paid pursuant to
any transfer tax or other similar governmental charge relating to such
transaction. As and from such time, no "stop transfer" or similar
instruction or order with respect to the Shares shall be in effect at
the Transfer Agent. As and from such time, the Shares shall be included
in the shares of Common Stock of the Company listed for trading on The
NASDAQ Stock Market.
4. Further Issues of Common Stock or Convertible Securities.
4.1 For purposes of this section 4:
4.1.1 the term "Initial Period" shall mean that period
beginning on the date of the execution of this
Placement Agent Agreement and ending at midnight (New
York local time) of the fortieth day after the Closing
Date; and
4.1.2 the term "Consent Period" shall mean that period
beginning on the date of the execution of this
Placement Agent Agreement and ending at midnight (New
York local time) of the ninetieth day after the end of
the Restricted Period.
4.2 During the Consent Period, the Company will not, without the prior
written consent of Kelton, offer, issue, sell, or deliver, or agree to
offer, issue, sell or deliver (whether through the issuance or granting
of options, warrants, commitments, subscriptions, rights to purchase or
otherwise), or file any registration statement with respect to any
issuance, offer or sale of, or agree to file any registration statement
with respect to any issuance, offer or sale of, any securities of the
Company or any obligations convertible into or exchangeable for, or give
any person any right to acquire from the Company, any securities of the
Company (such actions being collectively referred to as a "Stock
Issue"), except for (i) the issuance of the Shares to the Purchasers
pursuant to the Purchase Agreements, (ii) the issuance of shares of
Common Stock pursuant to the provisions of any of the Company's
currently outstanding employee or director benefit plans or the grant of
any stock options pursuant to any of the Company's currently outstanding
employee or director benefit plans, (iii) the filing of the Registration
Statement described in section 3.9 hereof, (iv) the issuance of Common
Stock or securities convertible into Common Stock of the Company in
connection with the acquisition of banks or other financial institutions
or the assets and liabilities thereof and (v) the issuance of shares of
Common Stock under the terms and conditions of the Company's existing
Dividend Reinvestment and Stock Purchase Plan as in effect on the date
of this Placement Agent Agreement (the "Plan"), provided, however, that
the Company expressly undertakes that during the
III/912117 -6-
Consent Period without the prior written consent of Kelton the Company
shall not amend in any way the terms and conditions of the Plan.
4.3 With respect to the matters described in section 4.2
hereof:
4.3.1 during the Initial Period, Kelton will not give its
consent to any issue of securities by the Company for
which Kelton's consent is required; and
4.3.2 during the part of the Consent Period following the
expiration of the Initial Period, Kelton will not
give its consent to any issue of securities by the
Company for which Kelton's consent is required
unless the best bid price of the Company's Common
Stock as quoted on The NASDAQ Stock Market has been
trading at twenty per cent (20%) or more above
the price for the Designated Shares as described in
the Allocation Schedule to the Purchase Agreements
for any ten trading days during such period
including the day prior to the offering in any
private placement or to the filing with Commission of
any registration statement in respect of a public
offering other than the Registration Statement
described in section 3.9 hereof.
4.4 During the Consent Period, Kelton will not unreasonably withhold its
consent to actions by Issuer for which Kelton's consent is required,
except as set out in section 4.3 hereof.
5. Compensation; Payment of Expenses
5.1 In consideration of Kelton's services in acting as exclusive
placement agent for the placement of the Shares, the Company hereby
agree to pay to Kelton a fee in an amount equal to four percent (4%) of
the gross proceeds of the sale of the Shares, such fee to be payable on
the Closing Date by wire transfer of immediately available funds to an
account to be designated by Kelton at least two (2) business days prior
to the Closing Date.
5.2 Whether or not the transactions contemplated hereby and by the
Purchase Agreements shall be consummated, the Company shall pay all
costs and expenses in connection with (i) the preparation and
reproduction of the Private Placement Memorandum, the SEC Documents (to
the extent that full copies are not supplied directly by the Company),
the certificates representing the Shares, (ii) the reproduction of the
Purchase Agreements, (iii) the Company's performance of and compliance
with all agreements and conditions contained herein and in the Purchase
Agreements, (iv) the expenses of listing the Shares for trading on The
NASDAQ Stock Market and (v) the fees, disbursements and expenses of the
Company's legal counsel and accountants.
5.3 Whether or not the transactions contemplated hereby and by the
Purchase Agreements shall be consummated, the Company shall pay on
behalf of or reimburse Kelton for all of the reasonable out-of-pocket
expenses incurred by Kelton not in the normal course of business in
connection with the offering, including the reasonable fees,
disbursements and expenses of Kelton's legal counsel, up to an aggregate
amount, absent further prior approval, of $120,000. Such payment or
reimbursement of such expenses shall be made by the Company on
production of suitable documentation thereof by Kelton.
5.4 Kelton shall bear all of its own expenses in excess of Kelton's
$120,000. Reimbursement of Kelton's expenses shall be made by the
Company ten (10) days after demand is made therefor. If the Closing Date
shall occur, the Company shall pay to Kelton on the Closing Date the
amount of one hundred and twenty thousand United States dollars
($120,000) less the aggregate amounts previously demanded and paid in
partial
III/912117 -7-
reimbursement of the expenses of Kelton. Within thirty (30) days after
the Registration Statement has become effective, Kelton shall provide to
the Company a breakdown in reasonable detail of Kelton's expenses
described in section 5.3 hereof. In the event that such expenses are
less than $120,000, Kelton shall refund the difference to the Company
within thirty (30) days after the Registration Statement has become
effective.
6. Conditions of Kelton's Obligation
The obligation of Kelton hereunder to place the Shares
is subject to the accuracy of the representations and warranties of the
Company herein and in the Purchase Agreements, to the performance by the
Company of its obligations hereunder, and to the following further
conditions:
6.1 The conditions to the obligations of the Purchasers set forth in
section 1.7 of each Purchase Agreement shall have been satisfied in all
material respects.
6.2 All documents incident hereto and to the Purchase Agreements shall
be reasonably satisfactory in form and substance to Kelton and its
counsel, and Kelton and its counsel shall have received such
information, certificates and documents as they may reasonably request.
7. Manner of Offers and Sales of the Shares
7.1 The offers and sales of the Shares are to be effected pursuant to
the exemption from the registration requirements of the Securities Act
pursuant to Regulation S thereunder. The Company and Kelton have
established the following procedures in connection with the offer and
sale of the Shares:
7.1.1 Each offer and sale of the Shares shall be made only
in an "offshore transaction" (as defined in
Regulation S) and to investors who are not "U.S.
persons" (as defined in Regulation S);
7.1.2 no offer or sale of any of the Shares shall be made
in the United States or to, or for the account or
benefit of, any "U.S. person" (as defined in
Regulation S);
7.1.3 no "directed selling efforts" (as defined in
Regulation S) in respect of the Shares shall be made
in or directed toward the United States;
7.1.4 "offering restrictions" (as defined in Regulation
S) in respect of the Shares shall be implemented;
7.1.5 each Purchaser of the Shares shall be furnished with
an Private Placement Memorandum prepared by the
Company, together with any amendments thereof and
supplements thereto as shall have been prepared by the
Company, which describes, among other things, (A) the
Shares, (B) such summary financial and business
information concerning the Company as is considered
appropriate and (C) the restrictions on resale of the
Shares;
7.1.6 no Private Placement Memorandum (or any revision or
amendment thereof or supplement thereto) shall be
delivered to any "U.S. person" (as defined in
Regulation S);
7.1.7 the Company agrees to furnish Kelton with such number
of copies of the Private Placement Memorandum and any
revision or amendment thereof or supplement thereto as
Kelton may require in connection with the placement of
the Shares; and
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7.1.8 each Purchaser of the Shares shall be required to
execute and deliver a Purchase Agreement which shall
contain, among other things, restrictions on resale of
the Shares otherwise than in compliance with the
Securities Act and the rules and regulations of the
Commission thereunder.
7.2 Kelton hereby represents, warrants and covenants with the Company
that Kelton and any person acting on behalf of, or as agent of, any of
Kelton, shall, whether as principal or agent, (i) comply with the
procedures set forth in section 7.1 hereof, (ii) offer and sell the
Shares to the Purchasers only in an "offshore transaction" (as defined
in Regulation S), (iii) not engage with respect to the Shares in any
"directed selling efforts" (as defined in Regulation S) in or directed
toward the United States, (iv) comply with all "offering restrictions"
(as defined in Regulation S) in respect of the Shares, (v) not deliver
the Private Placement Memorandum or any revision or amendment thereof or
supplement thereto to any "U.S. person" (as defined in Regulation S),
(vi) not make any offers or sales of any of the Shares or any interest
therein in the United States or to, or for the account or benefit of,
any "U.S. person" (as defined in Regulation S), (vii) comply with all
laws and regulations of those jurisdictions in which the Shares are
offered or sold which are applicable to the offer and sale of the
Shares, and (viii) on or prior to the Closing Date, send to each person
who is acting on behalf of Kelton a written confirmation or other notice
to the effect that such person is subject to the same restrictions on
offers and sales that apply to Kelton.
7.3 The Company hereby represents, warrants and covenants with Kelton
that the Company, its affiliates, and any person acting on behalf of, or
as agent of, any of the foregoing, shall, whether as principal or agent,
(i) comply with the procedures set forth in section 7.1 hereof, (ii)
offer and sell the Shares to the Purchasers only in an "offshore
transaction" (as defined in Regulation S), (iii) not engage with respect
to the Shares in any "directed selling efforts" (as defined in
Regulation S) in or directed toward the United States, (iv) comply with
all "offering restrictions" (as defined in Regulation S) in respect of
the Shares, (v) not deliver the Private Placement Memorandum or any
revision or amendment thereof or supplement thereto to any "U.S. person"
(as defined in Regulation S), (vi) not make any offers or sales of any
of the Shares or any interest therein in the United States or to, or for
the account or benefit of, any "U.S. person" (as defined in Regulation
S), and (vii) not make any offers or sales of any of the Shares or any
interest therein to any person other than the Purchasers; provided,
however, that insofar as this representation and warranty involves
Kelton or any officer, director, employee or agent of Kelton, to the
extent Kelton is acting as placement agent for the Shares, such
representation and warranty is made by the Company solely on the basis
of and in reliance upon the representations and warranties of Kelton
contained in this Placement Agent Agreement.
8. Indemnification and Contribution
8.1 For the purposes of this section 8:
8.1.1 the term "Registration Statement" shall include the
Registration Statement referred to in section 3.9
hereof and any final prospectus, exhibit or amendment
included in or relating to the Registration Statement
referred to in section 3.9 hereof, including all
documents incorporated by reference in the
Registration Statement except that the Registration
Statement shall not refer to any final prospectus at
any time when it has been superseded by a current
prospectus filed as part of any Amendment to the
Registration Statement; and
8.1.2 the term "untrue statement" shall mean any
misstatement of and any omission to state in the
Private Placement Memorandum (including any revision,
amendment or supplement thereof) or the Registration
Statement a material fact required to be stated
therein or necessary to make
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the statements therein, in the light of the
circumstances under which they were made, not
misleading; and
8.1.3 the term "Company Information" means any
information contained under the headings "Selected
Consolidated Financial Data", "Summary", "Summary
Pro Forma Information", "Carolina First Corporation",
"Price Range of Common Stock and Dividends" (only
to the extent of the first and last paragraphs
thereof), "Capitalization", "Management's Discussion
and Analysis of Financial Condition and Results of
Operations", "Business of Carolina First
Corporation", "Management", "Information Concerning
Ownership of Common Stock", "Description of Capital
Stock", and the financial statements contained in
the Private Placement Memorandum or to be contained
in the Registration Statement.
8.2 The Company agrees to indemnify and hold harmless Kelton (and each
person, if any, who controls Kelton within the meaning of section 15 of
the Securities Act and each director of Kelton) from and against any and
all losses, claims, damages or liabilities to which Kelton (or such
controlling person or director) may become subject (under the Securities
Act or otherwise) insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement contained in or
incorporated by reference in the Company Information contained in the
Private Placement Memorandum, or in any revision or amendment thereof or
supplement thereto, or in the Registration Statement or in any
prospectus or amendment or supplement thereto, or arise out of or are
based upon, or arise out of or are based upon any breach by the Company
(or any person who controls the Company within the meaning of section 15
of the Securities Act, any director of the Company or any agent of the
Company, other than Kelton) of any covenants of the Company contained in
section 7 hereof, the violation of which has caused the exemption from
registration provided by Regulation S to become unavailable with respect
to the Shares, and the Company agrees to reimburse such indemnified
party for any legal or other out-of-pocket expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) the Company will 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 any such untrue statement or alleged untrue
statement made therein in reliance upon and in conformity with written
information furnished to the Company by Kelton specifically for use in
the Private Placement Memorandum or any revision or amendment thereof or
supplement thereto, or in the Registration Statement or in any
prospectus or amendment or supplement thereto, and (ii) such indemnity
with respect to the Private Placement Memorandum shall not inure to the
benefit of Kelton (or such controlling person or director of Kelton) if
the person asserting any such loss, claim, damage or liability purchased
the Shares that are the subject thereof and did not receive a copy of
the Private Placement Memorandum (or the Private Placement Memorandum as
then amended, revised or supplemented) at or prior to the confirmation
of the sale of such Shares to such person in any case where any such
untrue statement or omission of a material fact contained in the Private
Placement Memorandum was subsequently corrected by amendment, revision
or supplement, and Kelton (or such controlling person) would not have
been liable had a copy of such Private Placement Memorandum, as so
corrected, been so received. This indemnity agreement will be in
addition to any liability that the Company may otherwise have.
8.3 Kelton agrees to indemnify and hold harmless the Company (and each
person, if any who controls the Company within the meaning of section 15
of the Securities Act and each director of the Company) from and against
any and all losses, claims, damages or liabilities to which the Company
(or such controlling person or director) may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement contained in the
Private Placement Memorandum, or in any revision or amendment thereof or
supplement thereto, or in the Registration Statement or in any
prospectus or amendment or supplement thereto, or arise out of or are
based upon any untrue statement or alleged untrue statement, in each
case to the extent, but only
III/912117 -10-
to the extent, that such untrue statement or alleged untrue statement
was made in reliance upon and in conformity with written information
furnished to the Company by Kelton specifically for use in the Private
Placement Memorandum or any revision or amendment thereof or supplement
thereto, or in the Registration Statement or in any prospectus or
amendment or supplement thereto, or arise out of or are based upon any
breach by Kelton (or any person who controls Kelton within the meaning
of section 15 of the Securities Act, any director of Kelton, or any
agent of Kelton) of any covenant of Kelton contained in section 7
hereof, the violation of which has caused the exemption from
registration provided by Regulation S to become unavailable with respect
to the Shares, and Kelton agrees to reimburse such indemnified party for
any legal or other out-of-pocket expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage
or liability or action as such expenses are incurred. This indemnity
agreement will be in addition to any liability that Kelton may otherwise
have.
8.4 Promptly after receipt by an indemnified party under this section 8
of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under this section 8, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve the indemnifying party from any
liability that it may have to any indemnified party otherwise than under
this section 8. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defence
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defence thereof, the indemnifying party will not be liable to
such indemnified party under this section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defence thereof other than reasonable costs of investigation.
If the indemnifying party does not elect to assume the defence of any
such claim, action or proceeding, the indemnifying party shall not be
liable for any settlement thereof which is effected without its prior
written consent. Without the prior written consent of the indemnified
party, no indemnifying party shall agree to the settlement of any such
claim, action or proceeding if the effect thereof would be to find the
indemnified person has violated the Securities Act, Exchange Act, or any
state securities or blue sky laws.
8.5 If recovery is not available under the foregoing indemnification
provisions of this section 8 for any reason other than as specified
therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution toward the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or
liabilities referred to in sections 8.2, 8.3 or 8.4 hereof, except that
no person guilty of fraudulent misrepresentation (within the meaning of
section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not also guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which
the respective parties are entitled, there shall be considered the
relative benefits received by each party from the offering of the
Shares, the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any untrue statement or alleged
untrue statement, and any other equitable considerations appropriate
under the circumstances. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this section 8.5 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim that is
the subject of this section 8.5.
8.6 The obligations of the Company and Kelton under this section 8 shall
survive any termination of this Placement Agent Agreement, in whole or
in part.
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9. Termination of this Placement Agent Agreement
In the event the Company does not perform any of its
obligations under this Placement Agent Agreement on its part to be
performed or any representation and warranty of the Company hereunder is
incomplete or inaccurate, this Placement Agent Agreement and all of
Kelton's obligations hereunder may be immediately cancelled by Kelton by
notice thereof to the Company . Any such cancellation shall be without
liability of any party to any other party except that the provisions of
sections 5 and 8 hereof shall survive any such cancellation.
10. Representations and Warranties of the Company
The Company represents and warrants to, and agrees with,
Kelton that:
10.1 The Private Placement Memorandum as of its date and at the Closing
Date, and any revision or amendment thereof and supplement thereto, as
of their respective dates and at the Closing Date, and the Registration
Statement and the prospectus thereto and any amendment thereof and
supplement thereto, as of their respective dates, did not and will not
as of such dates, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in 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 Kelton expressly for use therein.
10.2 Neither the Company or any affiliate of the Company nor anyone
acting on the behalf of the Company or any such affiliate, other than
Kelton, has, directly or indirectly, offered or sold, or attempted to
offer, sell or dispose of, any of the Shares, or solicited any offer to
buy any Shares from, or otherwise approached or negotiated with respect
thereto with, any person.
10.3 The execution, delivery and performance of this Placement Agent
Agreement by the Company (i) has been duly authorized by all requisite
corporate action of the Company, and (ii) will not violate (A) the
Certificate of Incorporation or By-laws of the Company or (B) any law
applicable to the Company or any of its subsidiaries or any rule,
regulation or order of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or (C) any
provision of any indenture, mortgage, agreement, contract or other
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 properties or assets of the Company or any of its subsidiaries
are subject, or be in conflict with, or result in a breach of or
constitute (upon notice or lapse of time or both) a default under any
such indenture, mortgage, agreement, contract or other instrument or
result in the creation or imposition of any claim, lien, security
interest, mortgage, pledge, charge or other encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or any of
its subsidiaries (except for such violation or conflict described in
(ii)(C) hereof which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole). Upon execution and
delivery by the Company and the Placements Agent, this Placement Agent
Agreement will constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization or other similar laws relating to
or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law and except as rights
to indemnity or contribution may be limited under applicable law.
11. Representations, Warranties and Agreements to Survive Delivery
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All representations, warranties and agreements
contained in this Placement Agent Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of Kelton or any controlling person,
or by or on behalf of the Company or any controlling person, director or
officer of the Company, and shall survive delivery of the Shares to the
Purchasers.
12. Notices
All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered, sent by courier or mailed by registered or
international recorded mail, postage prepaid and return receipt
requested, or transmitted by telefax, telex or telegraph and confirmed
by a similar mailed writing, if to Kelton, addressed to Kelton at 35
Curzon Street, London W1Y 7AE, England, Attention: Robin C. Kelton, or,
to such other address as Kelton may designate in writing to the Company,
and, if to the Company, addressed to Carolina First Corporation at 102
S. Main Street, Greenville, South Carolina 29601, United States of
America, Attention: Mack I. Whittle, Jr., President and Chief Executive
Officer or to such other address as the Company may designate in writing
to Kelton.
13. Parties
This Placement Agent Agreement shall inure to the
benefit of and be binding upon Kelton and the Company and their
respective successors. Nothing expressed herein is intended or shall be
construed to give any person other than the persons referred to in the
preceding sentence any legal or equitable right, remedy or claim under
or in respect of this Placement Agent Agreement. This Placement Agent
Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the parties hereto and their
respective successors and for the benefit of no other person except as
may be otherwise agreed by the parties hereto. No Purchaser of Shares
from the Company shall be deemed to be a successor by reason merely of
such purchase.
14. Miscellaneous
This Placement Agent Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the
matters and transactions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions. Neither this Placement Agent Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. References to
sections and sub-sections refer to this Placement Agent Agreement unless
expressly stated otherwise. The headings in this Placement Agent
Agreement are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof. This Placement Agent Agreement may
be executed in counterparts, each of which shall constitute an original,
but all of which shall together constitute one instrument.
15. Governing Law
This Placement Agent Agreement shall be governed by
and construed in accordance with the internal laws of the State of South
Carolina without regard to the conflict of laws provisions thereof.
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If the foregoing is in accordance with your
understanding, kindly sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement between the
undersigned in accordance with its terms.
Very truly yours,
CAROLINA FIRST CORPORATION
By: /s/ Mack I. Whittle, Jr.
__________________________
Name: Mack I. Whittle, Jr.
Title: President and Chief Executive Officer
The foregoing Placement Agent Agreement is hereby confirmed and accepted
as of the date first hereof written:
KELTON INTERNATIONAL LIMITED
By: /s/ Robin C. Kelton
____________________________
Name: Robin C. Kelton
Title: Chairman