1
EXHIBIT 1
3,000,000 Shares
FIDELITY NATIONAL CORPORATION
Common Stock
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UNDERWRITING AGREEMENT
___________________, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
As Representative of the Several Underwriters
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Fidelity National Corporation, a Georgia corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the several Underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 3,000,000 authorized and unissued shares of the Company's common
stock, no par value (the "Firm Shares"). In addition, the Company has agreed to
sell to the Underwriters, upon the terms and conditions set forth herein, up to
an additional 450,000 authorized and unissued shares of the Company's common
stock, no par value (the "Additional Shares"), solely to cover over-allotments
by the Underwriters, if any. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The Company's common
stock, no par value, including the Shares, is hereinafter referred to as the
"Common Stock." ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. is acting as the representative
of the several Underwriters and in such capacity is hereinafter referred to as
the "Representative."
The Company agrees with the Underwriters as follows:
SECTION 1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-2 (File No.
333-36377), including a prospectus subject to completion, relating to the
Shares. Such registration statement (including all financial schedules and
exhibits), as amended at the time when it became effective and as thereafter
amended by any post-effective amendment, together with any documents
incorporated by reference therein and any registration statement filed by the
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Company with respect to the foregoing pursuant to Rule 462(b) under the Act, is
referred to in this Agreement as the "Registration Statement." The term
"Prospectus" as used in this Agreement means (i) the prospectus in the form
included in the Registration Statement, or (ii) if the prospectus included in
the Registration Statement omits information in reliance upon Rule 430A under
the Act and such information is included in a prospectus filed with the
Commission pursuant to Rule 424(b) under the Act or as part of a post-effective
amendment to the Registration Statement after the Registration Statement becomes
effective, the prospectus as first filed pursuant to Rule 424(b), or (iii) if
the prospectus included in the Registration Statement omits information in
reliance upon Rule 430A under the Act and such information is included in a term
sheet (as described in Rule 434(c) under the Act) filed with the Commission
pursuant to Rule 424(b) under the Act, the prospectus included in the
Registration Statement and such term sheet, taken together, in each case
together with any documents incorporated by reference therein. The prospectus
subject to completion in the form included in the Registration Statement at the
time of the initial filing of such Registration Statement with the Commission
and as such prospectus is amended from time to time until the date upon which
the Registration Statement was declared effective by the Commission, together
with any documents incorporated by reference therein, is referred to in this
Agreement as the "Prepricing Prospectus."
SECTION 2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees
to sell the Firm Shares to the Underwriters and, upon the basis of the
representations, warranties and agreements of the Company and Fidelity National
Bank (the "Bank") herein contained and subject to all the terms and conditions
set forth herein, each Underwriter agrees, severally and not jointly, to
purchase from the Company the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number of Firm Shares as
adjusted pursuant to Section 10 hereof), at a purchase price of $____ per Share
(the "purchase price per Share").
Upon the basis of the representations, warranties and agreements of the
Company and the Bank herein contained and subject to all the terms and
conditions set forth herein, the Underwriters shall have the right for 30 days
from the date upon which the Registration Statement is declared effective by the
Commission to purchase from the Company, from time to time, and the Company
agrees to sell to the Underwriters, subject to the considerations set forth
below, any or all of the Additional Shares at the purchase price per Share for
the Firm Shares. The Additional Shares shall, if purchased, be purchased solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Shares. If any Additional Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments as you may determine to avoid
fractional shares) which bears the same proportion to the total number of
Additional Shares to be purchased by the Underwriters as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule I hereto (or
such number of Firm Shares as adjusted pursuant to Section 10 hereof) bears to
the total number of Firm Shares.
SECTION 3. TERMS OF PUBLIC OFFERING. The Company has been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Shares as
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soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable and initially to offer the Shares upon the
terms set forth in the Prospectus.
SECTION 4. DELIVERY OF THE SHARES AND PAYMENT THEREFOR. Certificates
for the Shares to be purchased by the Underwriters hereunder, in definitive form
and in such denominations and registered in such names as ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc. may request upon at least 48 hours prior notice to the Company,
shall be delivered by or on behalf of the Company to the Underwriters for their
respective accounts, against payment by the Underwriters as provided herein.
Payment shall be made with respect to the purchase price for the Firm Shares and
any Additional Shares purchased from the Company if any Additional Shares are
purchased hereunder, to the Company by official bank check or checks payable to
the order of the Company, in New York Clearing House next day funds against
delivery of the certificates for the Firm Shares or Additional Shares purchased
from the Company, as the case may be.
Delivery to the Underwriters of the Firm Shares and payment therefor
shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at 10:00 a.m., St. Petersburg, Florida time,
four business days after the date hereof (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
between you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at the offices of ▇▇▇▇▇▇▇
▇▇▇▇▇ & Associates, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, at
10:00 a.m., St. Petersburg, Florida time, on such date or dates (the "Additional
Closing Date" (which may be the same as the Closing Date but shall in no event
be earlier than the Closing Date nor earlier than three nor later than ten
business days after the giving of the notice hereinafter referred to), as shall
be specified in a written notice from you on behalf of the Underwriters to the
Company, of the Underwriters' determination to purchase a number, specified in
such notice, of Additional Shares. Such notice may be given to the Company by
you at any time within 30 days after the date upon which the Registration
Statement is declared effective by the Commission. The place of closing for the
Additional Shares and the Additional Closing Date may be varied by agreement
between you and the Company.
SECTION 5. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company
covenants agrees with the several Underwriters as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereto to become effective, if it has not already
become effective, and will advise you promptly and, if requested by you, will
confirm such advice in writing (i) when the Registration Statement has become
effective and when any post-effective amendment to the Registration Statement or
any registration statement filed pursuant to Rule 462(b) under the Act relating
to the Registration Statement is filed or becomes effective, (ii) if information
is omitted from the Registration Statement pursuant to Rule 430A under the Act,
when the Prospectus or
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term sheet (as described in Rule 434(b) under the Act) has been timely filed
pursuant to Rule 424(b) under the Act, (iii) of any request by the Commission
for amendments or supplements to the Registration Statement, any Prepricing
Prospectus or the Prospectus or for additional information, (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation (or threatened
initiation) of any proceeding for such purposes, and (v) within the period of
time referred to in Section 5(e) below, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results of
operations, or of any event that comes to the attention of the Company that
makes any statement made in the Registration Statement or the Prospectus (as
then amended or supplemented) untrue in any material respect or that requires
the making of any additions thereto or changes therein in order to make the
statements therein not misleading in any material respect, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented) to
comply with the Act or any other law. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible time.
(b) The Company will furnish to you, without charge, two signed copies
of the Registration Statement as originally filed with the Commission and of
each amendment thereto, including financial statements and all exhibits thereto,
and will also furnish to you, without charge, such number of conformed copies of
the Registration Statement as originally filed and of each amendment thereto as
you may reasonably request.
(c) The Company will not file any amendment to the Registration
Statement, file any registration statement pursuant to Rule 462(b) under the Act
or make any amendment or supplement to the Prospectus of which you shall not
previously have been advised (with a reasonable opportunity to review such
amendment, registration statement or supplement) or to which you have reasonably
objected after being so advised, or which is not in compliance with the Act. The
Company will prepare and file with the Commission any amendments or supplements
to the Registration Statement or Prospectus which, in the reasonable opinion of
counsel of the several Underwriters, may be necessary or advisable in connection
with the distribution of the Shares by the Underwriters.
(d) The Company has delivered or will deliver to you, without charge,
in such quantities as you have requested or may hereafter reasonably request,
copies of each form of the Prepricing Prospectus. The Company consents to the
use, in accordance with the Act and the securities or "blue sky" laws of the
jurisdictions in which the Shares are offered by the several Underwriters and by
dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Company.
(e) As soon after the execution and delivery of this Agreement as is
practicable (but in no event later than 48 hours from the execution and delivery
of this Agreement) and thereafter from time to time for such period as in the
reasonable opinion of counsel for the Underwriters a
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prospectus is required by the Act to be delivered in connection with sales by
any Underwriter or a dealer, and for so long a period as you may request for the
distribution of the Shares, the Company will deliver to each Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as they may reasonably request. The Company
consents to the use of the Prospectus (and of any amendment or supplement
thereto) in accordance with the Act and the securities or "blue sky" laws of the
jurisdictions in which the Shares are offered by the several Underwriters and by
all dealers to whom Shares may be sold, both in connection with the offering and
sale of the Shares and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If at any time prior to the later of (i) the completion of the
distribution of the Shares pursuant to the offering contemplated by the
Registration Statement or (ii) the expiration of prospectus delivery
requirements with respect to the Shares under Section 4(3) of the Act and Rule
174 thereunder, any event shall occur that in the reasonable judgment of the
Company or in the reasonable opinion of counsel for the Underwriters is required
to be set forth in the Prospectus (as then amended or supplemented) or should be
set forth therein in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus to comply with the Act or any other law,
the Company will promptly prepare and, subject to Sections 5(a) and 5(c), file
with the Commission an appropriate supplement or amendment thereto, and will
furnish to each Underwriter and to each dealer who has previously requested
Prospectuses, without charge, a reasonable number of copies thereof.
(f) The Company will cooperate with you and counsel for the
Underwriters in connection with the registration or qualification of the Shares
for offering and sale by the several Underwriters and by dealers under the
securities or "blue sky" laws of such jurisdictions as you may reasonably
designate and will file such consents to service of process or other documents
as may be reasonably necessary in order to effect and maintain such registration
or qualification for so long as required to complete the distribution of the
Shares; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to service of process in suits, other than those
arising out of the offering or sale of the Shares, in any jurisdiction where it
is not now so subject. In each jurisdiction in which the Shares shall have been
qualified as above provided, the Company will make and file such statements and
reports in each year as are or may be required by the laws of such jurisdiction.
In the event that the qualification of the Shares in any jurisdiction is
suspended, the Company shall so advise you promptly in writing.
(g) The Company will make generally available to its security holders a
consolidated earnings statement (in form complying with the provisions of Rule
158 under the Act), which need not be audited, covering a 12-month period
commencing after the effective date of the Registration Statement and ending not
later than 15 months thereafter, as soon as practicable after the end of such
period, which consolidated earnings statement shall satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act, and will advise you in
writing when such statement has been so made available.
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(h) During the period ending five years from the date hereof, the
Company will furnish to you and, upon your request, to each of the other
Underwriters (i) as soon as available, a copy of each report or definitive proxy
statement of the Company filed with the Commission under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the National Association of
Securities Dealers, Inc. (the "NASD"), the Nasdaq Stock Market or any national
securities exchange, or mailed to shareholders and (ii) from time to time such
other information concerning the Company as you may reasonably request. Until
the termination of the offering of the Shares, the Company will timely file all
documents, and any amendments to previously filed documents, required to be
filed by it pursuant to Sections 13, 14 or 15(d) of the Exchange Act. In
addition, until the earlier of such date that the Company has reported a profit
for two consecutive years and either (i) the agreement with the OCC dated
November 14, 1996 (the "OCC Agreement") has been terminated or (ii) the capital
ratios set forth in the OCC Agreement have been complied with for 12
consecutive months, and, to the extent legally permissible, the Company will
furnish to you, as soon as it is available, a copy of each report from the FRB,
OCC or DBF relating to the Company or the Bank. The Company agrees to use its
best efforts to provide such reports to you including, without limitation,
seeking approval from each such regulatory agency to release such reports to
you.
(i) The Company will apply the net proceeds from the sale of the Shares
to be sold by it hereunder substantially in accordance with the statements set
forth under the caption "Use of Proceeds" in the Prospectus.
(j) If information is omitted from the Registration Statement pursuant
to Rule 430A under the Act, the Company will timely file the Prospectus or a
term sheet (as described in Rule 434(b) under the Act) pursuant to Rule 424(b)
under the Act.
(k) For a period of 180 days after the date of the Prospectus as first
filed with the Commission pursuant to Rule 424(b) under the Act, without the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., the Company will not,
directly or indirectly, issue, sell, contract to sell, offer or otherwise
dispose of or transfer any shares of Common Stock or securities convertible into
or exchangeable or exercisable for shares of Common Stock (collectively,
"Company Securities") or any rights to purchase Company Securities, except (i)
to the Underwriters pursuant to this Agreement, (ii) pursuant to and in
accordance with the Company's stock option plans described in the Prospectus,
(iii) pursuant to the exercise or conversion of warrants, stock options,
preferred stock or convertible debentures issued and outstanding at the time of
effectiveness of the Registration Statement and described in the Registration
Statement or (iv) to employees pursuant to its employee stock purchase plan.
(l) Prior to the Closing Date or the Additional Closing Date, as the
case may be, the Company will furnish to you, as promptly as possible, copies of
any unaudited interim consolidated financial statements of the Company and its
Subsidiaries for any period subsequent to the periods covered by the financial
statements appearing in the Prospectus.
(m) The Company will comply with all provisions of any undertakings
contained in the Registration Statement.
(n) The Company will not, directly or indirectly, take any action that
would constitute or any action designed, or which might reasonably be expected
to cause or result in or constitute,
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under the Act or otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(o) The Company will use its best efforts to qualify or register its
Common Stock for sale in non-issuer transactions under (or obtain exemptions
from the application of ) the "blue sky" laws of each state where necessary to
permit market making transactions and secondary trading, and will comply with
such blue sky laws and will continue such qualifications, registrations and
exemptions in effect for a period of five years after the date hereof, provided
that in no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the
offering or sale of the Shares in any jurisdiction where it is not now so
subject.
(p) If at any time during the 90-day period after the first date that
any of the Shares are released by you for sale to the public, any rumor,
publication, or event relating to or affecting the Company shall occur as a
result of which in your reasonable opinion the market price of the Common Stock
(including the Shares) has been or is likely to be materially affected
(regardless of whether such rumor, publication, or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after written
notice from you advising the Company to the effect set forth above, promptly
consult with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. concerning the advisability and
substance of, and, if appropriate, disseminate a press release or other public
statement reasonably satisfactory to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. responding
to or commenting on such rumor, publication, or event.
(q) The Company shall not invest or otherwise use the proceeds received
by the Company from its sale of the Shares, or otherwise conduct its business,
in such a manner as would require the Company or any Subsidiary (as defined
below) to register as an investment company under the Investment Company Act of
1940, as amended.
(r) The Company will maintain a transfer agent and, if necessary under
the jurisdiction of its incorporation or the applicable rules of the Nasdaq
National Market or any national securities exchange on which the Common Stock is
then listed, a registrar (which, if permitted by applicable laws and rules, may
be the same entity as the transfer agent) for its Common Stock.
(s) The Company hereby agrees that this Agreement shall be deemed, for
all purposes, to have been made and entered into in Pinellas County, Florida.
The Company agrees that any dispute hereunder shall be litigated solely in the
Circuit Court of the State of Florida in Pinellas County, Florida or in the
United States District Court for the Middle district of Florida, Tampa Division,
and further agrees to submit itself to the personal jurisdiction of such courts.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE BANK.
The Company and the Bank, jointly and not severally, represent and warrant to
each Underwriter on
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the date hereof, and shall be deemed to represent and warrant to each
Underwriter on the Closing Date and the Additional Closing Date, that:
(a) The Registration Statement has been declared effective by the
Commission under the Act and no post-effective amendment to the Registration
Statement has been filed as of the date of this Agreement. Each Prepricing
Prospectus included as part of the Registration Statement as originally filed or
as part of any amendment or supplement thereto, or filed pursuant to Rule 424(a)
under the Act, complied when so filed in all material respects with the
provisions of the Act, except that this representation and warranty does not
apply to statements in or omissions from such Prepricing Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
or on behalf of any Underwriter through you expressly for use therein.
(b) The Commission has not issued any order preventing or suspending
the use of any Prepricing Prospectus, and the Prepricing Prospectus included as
part of the Registration Statement declared effective by the Commission complies
as to form in all material respects with the requirements of the Act. The
Company has satisfied all conditions to the use of Form S-2 with respect to the
offering of the Shares for sale to the public. The Registration Statement, in
the form in which it became effective and also in such form as it may be when
any post-effective amendment thereto shall become effective, and any
registration statement filed pursuant to Rule 462(b) under the Act, complies and
will comply in all material respects with the provisions of the Act and does not
and will not at any such times 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, except that this representation and
warranty does not apply to statements in or omissions from the Registration
Statement (or any amendment or supplement thereto) made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by or on behalf of any Underwriter through you expressly for use
therein. The Prospectus, and any supplement or amendment thereto, when filed
with the Commission under Rule 424(b) under the Act, complies and will comply in
all material respects with the provisions of the Act and does not and will not
at any such times contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in the light of
the circumstances under which they were made, not misleading, except that this
representation and warranty does not apply to statements in or omissions from
the Prospectus (or any amendment or supplement thereto) made in reliance upon
and in conformity with information relating to any Underwriter furnished to the
Company in writing by or on behalf of any Underwriter through you expressly for
use therein.
(c) The capitalization of the Company is as set forth in the Prospectus
as of the date set forth therein. All the outstanding shares of Common Stock and
other securities of the Company have been duly authorized and validly issued,
are fully paid and nonassessable and are free of any preemptive or similar
rights; all offers and sales of the capital stock, warrants, options and debt or
other securities of the Company and the Subsidiaries (as hereinafter defined)
prior to the date hereof were made in compliance with the Act and all other
applicable state, federal and
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foreign laws or regulations, or any actions under the Act or any state, federal
or foreign laws or regulations in respect of any such offers or sales are
effectively barred by effective waivers or statutes of limitation; the Shares to
be issued and sold to the Underwriters by the Company hereunder have been duly
authorized and, when issued and delivered to the Underwriters against payment
therefor in accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and free of any preemptive or similar rights; the securities
of the Company conform to the description thereof in the Registration Statement
and the Prospectus (or any amendment or supplement thereto); the form of
certificate for the Shares conforms to the corporate law of the State of
Georgia; and the delivery of certificates for the Shares to be issued and sold
by the Company pursuant to the terms of this Agreement and payment for such
Shares will pass valid marketable title to such shares, free and clear of any
voting trust arrangements, liens, encumbrances, equities, claims or defects in
title to the several Underwriters purchasing such Shares in good faith and
without notice of any lien, claim or encumbrance.
(d) The Company is a corporation duly organized and validly existing in
good standing under the laws of the State of Georgia with full corporate power
and authority to own, lease and operate its properties and to conduct its
business as presently conducted and as described in the Registration Statement
and the Prospectus (or any amendment or supplement thereto), and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such registration or qualification, except where the failure
to so register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or results of
operations of the Company.
(e) Fidelity National Mortgage Corporation ("FNMC"), and Fidelity
National Capital Investors, Inc. ("FNCI"), are each corporations duly organized
and validly existing in good standing under the laws of the state of Georgia
with full corporate power and authority to own, lease and operate their
respective properties and to conduct their respective businesses as presently
conducted and as described in the Registration Statement and the Prospectus (and
any amendment or supplement thereto), and are each duly registered and qualified
to conduct their respective businesses and are in good standing in each
jurisdiction or place where the nature of their respective properties or the
conduct of their respective businesses require such registration or
qualification, except where the failure to so register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole. The Company is duly registered as a Bank Holding
Company under the Bank Holding Company Act of 1956, as amended. The Bank has
been duly organized and is validly existing and in good standing as a national
bank under the laws of the United States of America. The Bank, FNMC and FNCI
individually are hereafter referred to as a "Subsidiary" and collectively as
"Subsidiaries." All of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
nonassessable (subject to 12 U.S.C. Section 1815 and, in the case of the Bank,
12 U.S.C. Section 55), and are owned by the Company directly (except that FNMC
is a subsidiary of the Bank), free and clear of any lien, adverse claim,
security interest, equity or
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other encumbrance. Except for the Subsidiaries, the Company does not own a
material interest in or control, directly or indirectly, any other corporation,
partnership, joint venture, association, trust or other business organization.
(f) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any Subsidiary, or
to which the Company or any Subsidiary, or to which its respective properties,
is subject, that are required by the Act to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto) or any
document required to be incorporated by reference therein but are not described
as required. There are no actions, suits, inquiries, proceedings, or
investigations by or before any court or governmental or other regulatory or
administrative agency or commission pending or, to the best knowledge of the
Company, threatened against or involving the Company or any Subsidiary, nor is
there any basis for any such action, suit, inquiry, proceeding, or investigation
that are required to be described in the Registration Statement or the
Prospectus (or any amendment or supplement thereto) or any document required to
be incorporated by reference therein but are not described as required. There
are no terms, conditions and requirements imposed on the Company and its
Subsidiaries by any of the Board of Governors of the Federal Reserve System
("FRB"), the Office of the Comptroller of the Currency ("OCC"), the Federal
Deposit Insurance Corporation ("FDIC"), and the Georgia Department of Banking
and Finance ("DBF") that are required to be described in the Registration
Statement or the Prospectus that are not described as required by the Act and,
to the extent not satisfied or waived, all of such terms, conditions and
requirements have been disclosed to the Underwriters. There are no agreements,
contracts, indentures, leases or other instruments that are required to be
described in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration Statement
that are not described or filed as required or incorporated by reference as
permitted by the Act. All such contracts to which the Company or any Subsidiary
is a party have been duly authorized, executed and delivered by the Company or
the respective Subsidiary, constitute valid and binding agreements of the
Company or the respective Subsidiary and are enforceable against the Company or
the respective Subsidiary in accordance with the terms thereof.
(g) Neither the Company nor any Subsidiary is in violation of (i) its
articles of incorporation or bylaws or other charter documents, or, (ii) except
as described in the Registration Statement and Prospectus, of (A) any law,
ordinance, administrative or governmental rule or regulation applicable to the
Company or any Subsidiary (including, without limitation, all regulations,
decisions, directives and orders of the OCC and the FRB) or (B) of any decree of
any court or governmental agency or body having jurisdiction over the Company or
any Subsidiary, except in the case of (A) or (B) for such violations that would
not have a material adverse affect on the Company and the Subsidiaries, taken as
a whole, or (iii) in default in any material respect in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any material agreement, indenture, lease or
other instrument to which the Company or any Subsidiary is a party or by which
the Company or any Subsidiary or any of their respective properties may be
bound.
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(h) The execution and delivery of this Agreement, and the performance
by the Company of its obligations under this Agreement, have been duly and
validly authorized by the Company, and this Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that the indemnification provisions set forth in Section 8 of this
Agreement may be limited by federal or state securities laws or the public
policy underlying such laws and subject to applicable bankruptcy or insolvency
laws and of the similar laws of general application relating to the enforcement
of creditor rights.
(i) Neither the issuance and sale of the Shares, the execution,
delivery or performance of this Agreement by the Company nor the consummation by
the Company of the transactions contemplated hereby (i) is or may be void or
voidable by any person or entity, (ii) requires any consent, approval,
authorization or other order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (except such as may be required for the registration of the Shares
under the Act and compliance with the securities or Blue Sky laws of various
jurisdictions, all of which will be, or have been, effected in accordance with
this Agreement) or conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under, the articles of incorporation or
bylaws or other charter documents, of the Company or any Subsidiary, or (iii)
conflicts or will conflict with or constitutes a breach of, or a default under,
any agreement, indenture, lease or other instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or any of their
respective properties may be bound, or violates any statute, law, regulation or
filing or judgment, injunction, order or decree applicable to the Company or any
Subsidiary or any of their respective properties, or results in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to the terms of any agreement or instrument
to which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary may be bound or to which the property or assets of the Company or any
Subsidiary is subject.
(j) Except as described in the Prospectus and except for sales of
Common Stock pursuant to the employee stock purchase plan, the Company does not
have outstanding and at the Closing Date (and the Additional Closing Date, if
applicable) will not have outstanding any options to purchase, or any warrants
to subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any shares of Common Stock or any
such warrants or convertible securities or obligations. Except as has been
complied with or waived, no holder of securities of the Company or any other
person has rights to the registration of any securities of the Company because
of the filing of the Registration Statement.
(k) Ernst & Young, LLP and KPMG Peat Marwick LLP, the certified public
accountants who have certified the consolidated financial statements filed as
part of the Registration Statement and the Prospectus (and any amendment or
supplement thereto), are independent public accountants as required by the Act.
The consolidated financial statements,
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together with related schedules and notes, forming part of the Registration
Statement and the Prospectus (and any amendment or supplement thereto), present
fairly the historical consolidated financial position, results of operations and
changes in financial position of the Company and the Subsidiaries on the basis
stated therein at the respective dates or for the respective periods to which
they apply; except as noted therein with respect to the Company as a going
concern, such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved and all adjustments necessary for a fair
presentation of the results for such period have been made; and the other
financial and statistical information and data set forth in the Registration
Statement and Prospectus (and any amendment or supplement thereto) is presented
fairly and prepared on a basis consistent with such financial statements and the
books and records of the Company. No financial statements or schedules are
required to be included in or incorporated by reference into the Registration
Statement that have not been so included or incorporated.
(l) Subsequent to the respective dates as of which such information is
given in the Registration Statement and the Prospectus (or any amendment or
supplement thereto), neither the Company nor any Subsidiary has incurred any
liability or obligation, direct or contingent, or entered into any transaction,
whether or not in the ordinary course of business, that is material to the
Company and the Subsidiaries, taken as a whole, and there has not been (i) any
material change in or dividend paid on the capital stock, except for dividends
paid on the Preferred Stock pursuant to the term thereof, (ii) any material
increase in the short-term debt or long-term debt, of the Company or any
Subsidiary not offset by increases in loans held for sale, (iii) any material
increase in the aggregate dollar or principal amount of the Bank's assets which
are classified by the Bank as substandard, doubtful, or loss, or the Bank's
loans which are 90 days or more past due or real estate acquired by foreclosure,
or (iv) any material adverse change, or, to the best of the Company's knowledge,
any development involving or which may reasonably be expected to involve a
potential future material adverse change, in the condition (financial or other),
business, net worth or results of operations of the Company and the
Subsidiaries, taken as a whole.
(m) The Company and the Subsidiaries have good and marketable title to
all property (real and personal) described in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or any document required to
be incorporated by reference therein as being owned by the Company or such
Subsidiary, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) or such as are not material
and do not interfere in any material respect with the use of the property or the
conduct of the business of the Company and the Subsidiaries, taken as a whole,
and the property (real and personal) held under lease by the Company or any
Subsidiary, as applicable, is held by them under valid, subsisting and
enforceable leases with only such exceptions as in the aggregate are not
materially burdensome and do not interfere in any material respect with the
conduct of the business of the Company and the Subsidiaries, taken as a whole.
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(n) The Company has not distributed and will not distribute prior to
the Closing Date (or the Additional Closing Date, if any) any offering material
in connection with the offering and sale of the Shares other than the Prepricing
Prospectus and the Registration Statement, the Prospectus or other materials
permitted by the Act and distributed with the prior written approval of the
Underwriters. The Company has not taken, directly or indirectly, any action
which constituted or any action designed, or which might reasonably be expected
to cause or result in or constitute, under the Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares. The Company acknowledges that the Underwriters may
engage in passive market making transactions in the Common Stock on The Nasdaq
Stock Market in accordance with Regulation M under the Exchange Act.
(o) Neither the Company nor any Subsidiary is an "investment company,"
an "affiliated person" of, or "promoter" or "principal underwriter" for an
investment company within the meaning of the Investment Company Act of 1940, as
amended.
(p) The Company and the Subsidiaries have all permits, licenses,
franchises, approvals, consents and authorizations of governmental or regulatory
authorities or private persons or entities (hereinafter "permit or "permits") as
are necessary to own their respective properties and to conduct their respective
businesses in the manner described in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subject to such
qualifications as may be set forth therein, except where the failure to have
obtained any such permit has not had and will not have a material adverse effect
upon the condition (financial or other) or the business of the Company and the
Subsidiaries, taken as a whole; the Company and the Subsidiaries have fulfilled
and performed all of their material obligations with respect to each such permit
and no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination of any such permit or result in any other
material impairment of the rights of the holder of any such permit, subject in
each case to such qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, such permits contain no restrictions that
are materially burdensome to the Company and the Subsidiaries, taken as a whole.
(q) The Company and the Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the business in which they are engaged;
and the Company has no reason to believe that the Company and the Subsidiaries
will not be able to renew their existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue their respective businesses at a comparable cost.
(r) The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted
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only in accordance with management's general or specific authorizations; and
(iv) the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) Neither the Company nor any Subsidiary has, directly or indirectly,
at any time during the past five years (i) made any unlawful contribution to any
candidate for political office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal, state or foreign
governmental official, or other person charged with similar public or
quasi-public duties, other than payments required or permitted by the laws of
the United States or any jurisdiction thereof or applicable foreign
jurisdictions.
(t) Except as set forth in the Registration Statement and the
Prospectus, to the knowledge of the Company neither the Company nor any
Subsidiary has violated any environmental, safety or similar law applicable to
their respective businesses, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any applicable
federal or state wages and hours laws, nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, which in each case might result in any material adverse change in
the business, prospects, financial condition or results of operation of the
Company and the Subsidiaries, taken as a whole. To the best of the Company's
knowledge, no labor disturbance by the employees of the Company or any of the
Subsidiaries exists or is imminent; and the Company is not aware of any existing
or imminent labor disturbances by the employees of any of its principal
suppliers that might be expected to result in any material adverse change in the
condition (financial or otherwise), earnings, operations, business or business
prospects of the Company and the Subsidiaries, taken as a whole. No collective
bargaining agreement exists with any of the Company's or any Subsidiary's
employees and, to the Company's knowledge, no such agreement is imminent. To the
best of the Company's knowledge, neither the employment by the Company or any
Subsidiary of their key personnel nor the activities of such individuals at the
Company or any Subsidiary conflicts with, constitutes a breach of, or otherwise
violates any employment, noncompetition, nondisclosure or similar agreement or
covenant by which such individuals may be bound.
(u) The Company and the Subsidiaries own and have full right, title and
interest in and to, or have the right to use, each material trade name,
trademark, service ▇▇▇▇, patent, copyright, license, and other rights and all
know-how (including trade secrets and other unpatented and/or proprietary or
confidential information, systems, or procedures) (collectively, "Intellectual
Property Rights") under which the Company and the Subsidiaries conduct all or
any portion of their respective businesses, which Intellectual Property Rights
are adequate to conduct such businesses as conducted or as proposed to be
conducted or as described in the Registration Statement and the Prospectus (or
any amendment or supplement thereto); except as otherwise disclosed in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), neither the Company nor any Subsidiary has created any lien or
encumbrance on, or granted any right or license with respect to, its respective
Intellectual Property Rights; there is no claim pending against the Company or
any Subsidiary with respect to any of their respective
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Intellectual Property Rights; neither the Company nor any Subsidiary has
received notice that, nor is the Company aware that, any Intellectual Property
Right which they use or have used in the conduct of their respective businesses
infringed or infringes upon or conflicted or conflicts with the rights of any
third party, which infringement or conflict could have a material adverse effect
upon the condition (financial or other) of the Company and the Subsidiaries,
taken as a whole; and the Company is not aware of any facts which, with the
passage of time or otherwise, would cause the Company or any Subsidiary to
infringe upon or otherwise violate the Intellectual Property Rights of any third
party, which infringement or conflict could have a material adverse effect upon
the condition (financial or other) of the Company and the Subsidiaries, taken as
a whole.
(v) The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act. The Company has timely and properly filed with the Commission all
reports and other documents required to have been filed with the Commission. The
documents incorporated by reference in the Registration Statement or the
Prospectus (or any amendment or supplement thereto), when the Registration
Statement became effective under the Act and when such documents were filed with
the Commission under the Exchange Act, conformed in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder. The Common Stock has been and
continues to be designated for inclusion on the Nasdaq National Market System
(the "Nasdaq National Market") under the symbol "LION" and the Company has
complied and will continue to comply with the maintenance and designation
criteria applicable to Nasdaq National Market issuers. The Company has taken no
action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act or delisting the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the Commission or the National Association of Securities
Dealers, Inc. ("NASD") is contemplating terminating such registration or
listing.
(w) All federal, state, local and foreign tax returns required to be
filed by or on behalf of the Company and any Subsidiary with respect to all
periods ended prior to the date of this Agreement have been filed (or are the
subject of valid extension) with the appropriate federal, state, local and
foreign authorities and all such tax returns, as filed, are accurate in all
material respects. All federal, state, local and foreign taxes (including
estimated tax payments) required to be shown on all such tax returns or claimed
to be due from or with respect to the respective businesses of the Company and
the Subsidiaries have been paid or reflected as a liability on the consolidated
financial statements of the Company for appropriate periods, except where such
failure would not have a material adverse effect on the Company and the
Subsidiaries, taken as a whole. All deficiencies asserted as a result of any
federal, state, local or foreign tax audits have been paid or finally settled
and no issue has been raised in any such audit which, by application of the same
or similar principles, reasonably could be expected to result in a proposed
deficiency for any other period not so audited. No state of facts exist or has
existed which would constitute grounds for the assessment of any tax liability
with respect to the periods that have not been audited by appropriate federal,
state local or foreign authorities which could have a material
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adverse effect upon the condition (financial or other) of the Company and the
Subsidiaries taken as a whole. There are no outstanding agreements or waivers
extending the statutory period of limitation applicable to any federal, state,
local or foreign tax return for any period.
(x) The Company and its Subsidiaries have obtained all required
permits, licenses, and other authorizations, if any, which are required under
federal, state, local and foreign statutes, ordinances and other laws relating
to pollution or protection of the environment, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, chemicals, or industrial, hazardous, or toxic materials or wastes
into the environment (including, without limitation, ambient air, surface water,
ground water, land surface, or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, chemicals, or industrial,
hazardous, or toxic materials or wastes, or any regulation rule, code, plan,
order, decree, judgment, injunction, notice, or demand letter issued, entered,
promulgated, or approved thereunder ("Environmental Laws") the failure of which
to obtain would have a material adverse effect on the condition (financial or
other) of the Company and its Subsidiaries, taken as a whole. The Company and
its Subsidiaries are in material compliance with all terms and conditions of all
required permits, licenses and authorizations, and are also in material
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and timetables contained in
the Environmental Laws. There is no pending or, to the best knowledge of the
Company, threatened, civil or criminal litigation, notice of violation, or
administrative proceeding relating in any way to the Environmental Laws
(including notices, demand letters, or claims under the Resource Conservation
and Recovery Act of 1976, as amended ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), and
similar foreign, state, or local laws) involving the Company or any Subsidiary.
There have not been and there are not any past, present, or foreseeable future
events, conditions, circumstances, activities, practices, incidents, actions, or
plans which may interfere with or prevent continued compliance, or which may
give rise to any common law or legal liability, or otherwise form the basis of
any claim, action, demand, suit, proceeding, hearing, study, or investigation,
based on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling, or the emission,
discharge, release, or threatened release into the environment, of any
pollutant, contaminant, chemical, or industrial, hazardous, or toxic material or
waste, including, without limitation, any liability arising, or any claim,
action, demand, suit, proceeding, hearing, study, or investigation which may be
brought, under RCRA, CERCLA, or similar foreign, state or local laws, in each
case which individually or in the aggregate would have a material adverse effect
on the condition (financial or other) of the Company and its Subsidiaries, taken
as a whole.
(y) The Company and the Subsidiaries are in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of doing Business with Cuba; if the Company or any Subsidiary
commences engaging in business with the government of Cuba or with any person or
affiliate located in Cuba after the date the Registration Statement becomes or
has become effective with the Commission or with the Florida Department
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of Banking and Finance (the "Department"), whichever date is later, or if the
information reported or incorporated by reference in the Prospectus, if any,
concerning the business of the Company or any Subsidiary with Cuba or with any
person or affiliate located in Cuba changes in any material way, the Company
will provide the Department notice of such business or change, as appropriate in
a form acceptable to the Department.
(z) The Bank is a member in good standing of the Federal Home Loan
Bank of Atlanta, and the Bank's deposit accounts are insured by the FDIC to the
fullest extent provided under applicable law, and no proceeding for the
termination or revocation of such insurance is pending or, to the knowledge of
the Company or the Bank, threatened.
(aa) Except as described in the Prospectus, there are no contractual
encumbrances or material restrictions on the ability of the Bank (i) to pay
dividends or make any other distributions on its capital stock or to pay any
indebtedness owed, (ii) to make any loans or advances to, or investments in, any
subsidiary, or (iii) to transfer any of its property or assets to any
subsidiary. Except as described in the Prospectus, the Bank meets the
qualifications to make capital distributions as a "Tier 1 Association" under 12
C.F.R. Section 563.134.
(bb) Upon completion of the transaction contemplated by this Agreement
and the absence of any materially adverse events that are unforeseen as of the
date of this Agreement, and based upon discussions between the Company and Ernst
& Young LLP, the Company expects to get an audit report from Ernst & Young LLP
that does not contain a "going concern" qualification.
(cc) The execution and delivery of the warrant (the "Warrant") granting
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. the right to purchase 150,000 shares of the
Company's common stock, no par value (the "Warrant Shares"), and the performance
by the Company of its obligations under the Warrant, have been duly and validly
authorized by the Company, and the Warrant has been duly executed and delivered
by the Company and constitutes the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms. The Warrant Shares
to be issued to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. upon exercise of the Warrant
have been duly authorized and, when issued and delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc. against payment therefor in accordance with the terms of the
Warrant, will be validly issued, fully paid and nonassessable and free of any
preemptive or similar rights.
SECTION 7. EXPENSES. The Company hereby agrees with the several
Underwriters that the Company will pay or cause to be paid the costs and
expenses associated with the following: (i) the preparation, printing or
reproduction, and filing with the Commission of the Registration Statement
(including financial statements and exhibits thereto), each Prepricing
Prospectus, the Prospectus, each registration statement filed pursuant to Rule
462(b) under the Act, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
and charges for counting and packaging) of such copies of the Registration
Statement, each Prepricing Prospectus, the Prospectus, each registration
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statement filed pursuant to Rule 462(b) under the Act, and all amendments or
supplements to any of them, as may be reasonably requested for use in connection
with the offering and sale of the Shares; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Shares, including
any stamp taxes in connection with the offering of the Shares; (iv) the printing
(or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Shares; (v)
the listing of the Shares on the Nasdaq National Market; (vi) the registration
or qualification of the Shares for offer and sale under the securities or Blue
Sky laws of the several states as provided in Section 5(f) hereof (including the
reasonable fees and expenses of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and
supplemental Blue Sky Memoranda and such registration and qualification); (vii)
the filing fees in connection with any filings required to be made with the NASD
in connection with the offering; (viii) the transportation and other expenses
incurred by or on behalf of representatives of the Company in connection with
the presentations to prospective purchasers of the Shares; (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; (x) the preparation,
printing and distribution of a reasonable number of bound volumes of the
relevant transaction documents for the Representatives and their counsel; and
(xi) the performance by the Company of its other obligations under this
Agreement. If this Agreement shall be terminated by the Company after execution
pursuant to any provision hereof (except Section 11) or if the transactions
contemplated hereby are not consummated by reason of any failure, refusal or
inability on the part of the Company to perform any agreement on its part to be
performed hereunder or to fulfill any condition of the Underwriters' obligations
hereunder, the Company will reimburse the several Underwriters for all
reasonable out-of-pocket expenses (including travel expenses and fees and
disbursements of counsel for the several Underwriters) incurred by the
Underwriters in investigating, preparing to market or marketing the Shares,
which amounts shall not exceed $125,000. The provisions of this Section 7 are
intended to relieve the Underwriters from the payment of the expenses and costs
which the Company hereby agrees to pay, but shall not affect any agreement which
the Company may make, or may have made, for the sharing of such expenses and
costs. Such agreements shall not impair the obligations of the Company hereunder
to the several Underwriters.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION. The Company and the Bank,
jointly and not severally, agree to indemnify and hold harmless you and each
other Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any breach of
any representation, warranty, agreement or covenant of the Company contained
herein or any untrue statement or alleged untrue statement of a material fact
contained in any Prepricing Prospectus, the Registration Statement, the
Prospectus, any amendment or supplement thereto, or in any Registration
Statement filed pursuant to Rule 462(b) under the Act, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arising out of or based
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upon any untrue statement or alleged untrue statement of any material fact
contained in any audio or visual materials used in connection with the marketing
of the Shares, including, without limitation, slides, videos, films and tape
recordings, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon an untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to an
Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith or arise out
of materials prepared solely by the Underwriters based upon material information
obtained from sources other than, directly or indirectly, the Company or its
representatives. This indemnification shall be in addition to any liability that
the Company and the Bank may otherwise have.
If any action or claim shall be brought against any Underwriter or any
person controlling any Underwriter in respect of which indemnity may be sought
against the Company or the Bank, such Underwriter or such controlling person
shall promptly notify in writing the party(s) against whom indemnification is
being sought (the "indemnifying party" or "indemnifying parties"), but the
omission so to notify the indemnifying party(s) shall not relieve such
indemnifying party(s) from any liability which it may have to such Underwriter
or such controlling person except to the extent that it has been prejudiced in
any material respect by such failure. In case any such action or claim shall be
brought against any Underwriter or controlling person and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party(s) shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party(s) similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such Underwriter or
controlling person (who shall not, except with the consent of the Underwriter or
controlling person, be counsel to the indemnifying party), and, after notice
from the indemnifying party to such Underwriter or controlling person of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such Underwriter or controlling person under such subsection for any
legal expenses of other counsel or any other expenses, in each case subsequently
incurred by such Underwriter or controlling person, in connection with the
defense thereof or the costs of investigation. Such Underwriter or any such
controlling person shall have the right to employ separate counsel in any such
action or claim and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the indemnifying party(s) has (have) agreed in
writing to pay such fees and expenses, (ii) the indemnifying party(s) has (have)
failed to assume the defense and employ counsel reasonably acceptable to the
Underwriter or such controlling person, or (iii) the named parties to any such
action (including any impleaded parties) include both such Underwriter or such
controlling person and the indemnifying party(s), and such Underwriter or such
controlling person shall have been advised by its counsel that representation of
such indemnified party and any indemnifying party(s) by the same counsel would
be inappropriate under applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual or
potential differing interests between them (in which case the indemnifying
party(s) shall not have the right to assume the defense of such action or claim
on behalf of such Underwriter or such controlling
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person). The indemnifying party(s) shall not be liable for any settlement of any
such action or claim effected without its (their) written consent, but if
settled with such written consent, or if there be a final judgment for the
plaintiff in any such action, the indemnifying party(s) agrees to indemnify and
hold harmless any Underwriter and any such controlling person from and against
any loss, claim, damage, liability or expense by reason of such settlement or
judgment, but in the case of a judgment only to the extent stated in the
immediately preceding paragraph.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Prepricing Prospectus, any amendment or supplement
thereto, or any Registration Statement filed pursuant to Rule 462(b) under the
Act. If any action or claim shall be brought or asserted against the Company,
any of its directors, any such officers, or any such controlling person based on
the Registration Statement, the Prospectus or any Prepricing Prospectus, any
amendment or supplement thereto, or any Registration Statement filed pursuant to
Rule 462(b) under the Act, and in respect of which indemnity may be sought
against any Underwriter pursuant to this paragraph, such Underwriter shall have
the rights and duties given to the Company by the preceding paragraph (except
that if the Company shall have assumed the defense thereof such Underwriter
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at such Underwriter's expense), and the Company, its directors, any
such officers, and any such controlling persons shall have the rights and duties
given to the Underwriters by the immediately preceding paragraph. This
indemnification shall be in addition to any liability the Underwriters or any
Underwriter may otherwise have.
If the indemnification provided for in this Section 8 is judicially
determined to be unenforceable to an indemnified party under the first, and
third paragraph hereof in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) 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 hand from the offering of the Shares (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above 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, liabilities or
expenses, 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 hand shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company, bear to the total underwriting discounts
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and commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus; provided that, in the event that the
Underwriters shall have purchased any Additional Shares hereunder, any
determination of the relative benefits received by the Company, or the
Underwriters from the offering of the Shares shall include the net proceeds
(before deducting expenses) received by the Company, and the underwriting
discounts and commissions received by the Underwriters, from the sale of such
Additional Shares, in each case computed on the basis of the respective amounts
set forth in the notes to the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand 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 or the omission or alleged omission to state a
material fact relates to information supplied by the Company on one hand or by
the Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
In any event, the Company will not, without the prior written consent
of the Representatives (which consent will not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment in any proceeding or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not the Representatives or any person who
controls the Representatives within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent (i) includes an
unconditional release of all Underwriters and such controlling persons from all
liability arising out of such claim, action, suit or proceeding 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 Underwriter or controlling person.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8 was determined by a 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 in the fourth paragraph of this Section 8.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities and expenses referred to in the fourth paragraph of
this Section 8 shall be deemed to include, subject to the limitations set forth
above, 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 Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price of the Shares underwritten by it and distributed to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective numbers of Firm
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Shares set forth opposite their names in Schedule I hereto (or such numbers of
Firm Shares increased as set forth in Section 10 hereof) and not joint.
In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus, any supplement or amendment thereto, or
any registration statement filed pursuant to Section 462(b) of the Act, each
party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 8 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any person
controlling the Company (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 8.
SECTION 9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by you, and all filings required by
Rules 424(b) and 430A under the Act shall have been timely made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction.
(b) Subsequent to the effective date of the Registration Statement
there shall not have occurred any change, or any development involving, or which
might reasonably be expected to involve, a potential future material adverse
change, in the condition (financial or other), business, properties, net worth
or results of operations of the Company and the Subsidiaries, taken as a whole,
not contemplated by the Prospectus (or any supplement thereto), that in your
reasonable opinion, as Representatives of the several Underwriters, would
materially and adversely affect the market for the Shares.
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(c) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of Glass, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP,
counsel for the Company, dated the Closing Date (and the Additional Closing
Date, if any), reasonably satisfactory to you and your counsel, to the effect
that:
(i) The Company is a corporation duly incorporated under
the laws of the State of Georgia, and validly existing in good
standing, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure
to so register or qualify does not have a material adverse effect on
the condition (financial or other), business, properties, net worth or
results of operation of the Company and the Subsidiaries, taken as a
whole.
(ii) Each Subsidiary is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction of
its organization, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus (and any amendment or
supplement thereto), and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification except where the failure to
so register or qualify does not have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operation of the Company and the Subsidiaries, taken as a
whole. All issued and outstanding shares of capital stock of each
Subsidiary have been validly issued and are fully paid and
nonassessable and, to such counsel's knowledge, free and clear of all
liens, encumbrances, equities and claims. To such counsel's knowledge,
the Company does not own or control, directly or indirectly, any
corporation, association or other entity other than Fidelity National
Bank, Fidelity National Mortgage Corporation, and Fidelity National
Capital Investors, Inc.
(iii) The authorized capital stock of the Company conform
in all material respects as to legal matters to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock."
(iv) All shares of capital stock or other securities of
the Company outstanding prior to the issuance of the Shares to be
issued and sold by the Company hereunder have been duly authorized and
validly issued, are fully paid and nonassessable and, to such counsel's
knowledge, have not been issued in violation of any co-sale right,
registration right, right of first refusal, preemptive right, or other
similar right.
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(v) To such counsel's knowledge, all offers and sales of
the Company's capital stock or other securities prior to the date
hereof were made in compliance with the registration provisions of the
Act and the registration provisions of all other applicable state and
federal laws or regulations or any actions under the Act, or any state
or federal securities laws or regulations, or applicable exemptions
therefrom.
(vi) The Shares to be issued and sold to the Underwriters
by the Company hereunder have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms hereof, will be validly issued, fully paid and
nonassessable and, to such counsel's knowledge, free and clear of all
liens, encumbrances, equities and claims and, to such counsel's
knowledge, will not have been issued in violation of any co-sale right,
registration right, right of first refusal, preemptive right, or other
similar right.
(vii) The execution and delivery of the Warrant, and the
performance by the Company of its obligations under the Warrant, have
been duly and validly authorized by the Company, and the Warrant has
been duly executed and delivered by the Company and constitutes the
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms. The Warrant Shares to be issued
to ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc. upon exercise of the Warrant have
been duly authorized and, when issued and delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc. against payment therefor in accordance with the terms
of the Warrant, will be validly issued, fully paid and nonassessable
and, to such counsel's knowledge, free of any preemptive or similar
rights.
(viii) The form of certificates for the Shares conforms to
the requirements of the applicable corporate laws of the State of
Georgia.
(ix) The Registration Statement has become effective under
the Act and, to such counsel's knowledge after reasonable inquiry, no
stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose are pending before
or threatened by the Commission.
(x) The Company and the Bank have all requisite
corporate power and authority to enter into this Agreement and to
issue, sell and deliver the Shares to be sold by it to the
Underwriters as provided herein, and this Agreement has been duly
authorized, executed and delivered by the Company and the Bank and is
a valid, legal and binding agreement of the Company and the Bank
enforceable against the Company and the Bank in accordance with its
terms, except as enforceability thereof may be limited by (A) the
application of bankruptcy, reorganization, insolvency and other laws
affecting creditors' rights generally, and (B) equitable principles
being applied at the discretion of a court before which any proceeding
may be brought; and the Company and the Bank has adequate
authorization and has taken all action necessary to authorize the
indemnification provisions contained in Section 8
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herein, provided, however that such counsel may specifically refrain
from opining as to the validity of the indemnification provisions
hereof insofar as they are or may be held to be violative of public
policy (under either state or federal law) against such types of
provisions in the context of the offer, offer for sale, or sale of
securities.
(xi) Neither the Company nor any Subsidiary, to such
counsel's knowledge, is in violation of its respective articles of
incorporation or bylaws or other charter documents, and to the
knowledge of such counsel after reasonable inquiry, neither the Company
nor any Subsidiary is in default in the performance of any material
obligation, agreement or condition contained in any bond, indenture,
note or other evidence of indebtedness or in any other agreement
material to the Company and the Subsidiaries, taken as a whole.
(xii) Neither the offer, sale or delivery of the Shares,
the execution, delivery or performance of this Agreement and compliance
by the Company with all provisions hereof nor consummation by the
Company of the transactions contemplated hereby conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, articles of incorporation or bylaws or other charter
documents, of the Company or any Subsidiary, or any agreement,
indenture, lease or other instrument to which the Company or any
Subsidiary, or any of their respective properties, is bound, that is or
was required to be filed by the Company with the Commission, or is
known to such counsel after reasonable inquiry, or, to the knowledge of
such counsel, will result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
Subsidiary, nor will any such action result in any violation of any
existing law, regulation, ruling (assuming compliance with all
applicable state securities and "blue sky" laws), judgment, injunction,
order or decree known to such counsel after reasonable inquiry,
applicable to the Company or any Subsidiary, or any of their respective
properties.
(xiii) No consent, approval, authorization or other order
of, or registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or official is
required on the part of the Company (except such as have been obtained
under the Act or such as may be required under state securities or
"blue sky" laws governing the purchase and distribution of the Shares)
for the valid issuance and sale of the Shares to the Underwriters under
this Agreement.
(xiv) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included or incorporated by reference therein, as to
which such counsel need not express any opinion) comply as to form in
all material respects with the requirements of the Act, and the
conditions to the use of Form S-2 have been satisfied by the Company.
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(xv) To the knowledge of such counsel after reasonable
inquiry, (A) there are no legal or governmental proceedings pending or
threatened against the Company or any Subsidiary, or to which the
Company or any Subsidiary, or any of their respective properties, are
subject, that are required to be described in the Registration
Statement or Prospectus (or any amendment or supplement thereto) or any
document incorporated by reference therein that are not described as
required therein, and (B) there are no agreements, contracts,
indentures, leases or other instruments, that are required to be
described in the Registration Statement or the Prospectus (or any
amendment or supplement thereto) or any document incorporated by
reference therein or to be filed as an exhibit to the Registration
Statement or incorporated by reference therein that are not described
or filed as required, as the case may be.
(xvi) To the knowledge of such counsel after reasonable
inquiry, neither the Company nor any Subsidiary is in violation of any
law, ordinance, administrative or governmental rule or regulation
applicable to the Company or any Subsidiary or of any decree of any
court or governmental agency or body having jurisdiction over the
Company or any Subsidiary except where such violation does not and will
not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operation of the
Company and the Subsidiaries, taken as a whole.
(xvii) To the knowledge of such counsel after reasonable
inquiry, the Company and the Subsidiaries have such permits, licenses,
franchises, approvals, consents and authorizations of governmental or
regulatory authorities ("permits"), as are necessary to own their
respective properties and to conduct their respective businesses in the
manner described in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), subject to such qualifications as
may be set forth therein except where the failure to have obtained any
such permit has not had and will not have a material adverse effect
upon the condition (financial or other) or the business of the Company
and the Subsidiaries taken as a whole; the Company and the Subsidiaries
have fulfilled and performed all of their respective material
obligations with respect to such permits and no event has occurred
which allows, or after notice or lapse of time would allow, revocation
or termination thereof or result in any other material impairment of
the rights of the holder of any such permit, subject in each case to
such qualification as may be set forth in the Registration Statement
and the Prospectus (or any amendment or supplement thereto); and except
as described in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), such permits contain no restrictions
that are materially burdensome to the Company and the Subsidiaries,
taken as a whole.
(xviii) The principal executive offices and properties
located in Decatur, Georgia and at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ are held under valid, subsisting and enforceable leases, with
only such exceptions as in the aggregate are not material and do
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not interfere in any material respect with the conduct of the business
of the Company and the Subsidiaries, taken as a whole.
(xix) Such counsel has reviewed all agreements, contracts,
indentures, leases or other documents or instruments referred to in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) (other than routine contracts entered into by the
Company or any Subsidiary for the purchase of materials or the sale of
products, entered into in the normal course of business) and such
agreements, contracts, indentures, leases or other documents or
instruments are fairly summarized or disclosed therein, and filed as
exhibits thereto or incorporated by reference therein as required, and
such counsel does not know, after reasonable inquiry, of any
agreements, contracts, indentures, leases or other documents or
instruments required to be so summarized or disclosed or filed which
have not been so summarized or disclosed or filed.
(xx) The statements under the captions "Risk Factors,"
"Regulatory Matters," "Description of Capital Stock," and
"Capitalization," in the Registration Statement and the Prospectus,
insofar as such statements constitute a summary of documents referred
to therein or matters of law, are accurate summaries and fairly and
correctly summarize and present in all material respects the
information called for with respect to such documents and matters. Such
counsel has no reason to believe that the descriptions in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto) of statutes, regulations or legal or governmental
proceedings are other than accurate or fail to present fairly the
information required to be shown.
(xxi) Neither the Company nor any Subsidiary is, nor will
any of them become, as a result of the consummation of the transactions
contemplated hereby and the application of the net proceeds therefrom
as set forth in the Registration Statement and the Prospectus (or any
amendment or supplement thereto) under the caption "Use of Proceeds,"
an "investment company" or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended.
(xxii) To the knowledge of such counsel after reasonable
inquiry, neither the Company nor any Subsidiary has received written
notice from any third party alleging that their employment of any
individual or the activities of any individual at the Company or any
Subsidiary conflicts with, constitutes a breach of, or otherwise
violates any employment, noncompetition, nondisclosure or similar
agreement or covenant by which such individual may be bound, and such
counsel has no reason to believe that the employment by the Company or
any Subsidiary of any individual or the activities of any individual at
the Company or any Subsidiary conflicts with, constitutes a breach of,
or otherwise violates any employment, noncompetition, nondisclosure or
similar agreement or covenant by which such individual may be bound.
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In rendering such opinion, counsel may rely upon an opinion or
opinions, each dated the Closing Date (and the Additional Closing Date, if
applicable), of other counsel as to the laws of a jurisdiction other than the
State of Georgia, provided that (1) each such local counsel is reasonably
acceptable to you, (2) each such opinion so relied upon is addressed to counsel
and you, (3) such reliance is expressly authorized by each opinion so relied
upon and a copy of each such opinion is delivered to you and is in form and
substance reasonably satisfactory to you, and (4) counsel shall state in their
opinion that they believe that they and you are justified in relying thereon. In
rendering such opinion, local counsel may rely, to the extent they deem such
reliance proper, as to matters of fact upon certificates of officers of the
Company and of government officials. Copies of all such certificates shall be
furnished to you and your counsel on the Closing Date (and the Additional
Closing Date, if applicable). In addition, if written confirmation of the
Commission is not available at the time such opinion is rendered, counsel may
rely upon the current oral representations of members of the Commission's staff
with respect to the Registration Statement or any amendment or supplement
thereto having become effective and the lack of issuance of a stop order or
institution of proceedings for that purpose.
In rendering such opinion, in each case where such opinion is qualified
by "the knowledge of such counsel after reasonable inquiry," such counsel may
rely as to matters of fact upon certificates of executive and other officers and
employees of the Company as you and such counsel shall deem are appropriate and
such other procedures as you and such counsel shall mutually agree; provided,
however, in each such case, such counsel shall state that it has no knowledge
contrary to the information contained in such certificates or developed by such
procedures and knows of no reason why you should not reasonably rely upon the
information contained in such certificates or developed by such procedures.
In addition to the opinion set forth above, such counsel shall state
that during the course of the preparation of the Registration Statement and the
Prospectus, and any amendments or supplements thereto, nothing has come to the
attention of such counsel which has caused it to believe that the Registration
Statement, as of the time it became effective under the Act, the Prospectus or
any amendment or supplement thereto, on the date it was filed pursuant to Rule
424(b), as of the respective dates when such documents were filed with the
Commission, and the Registration Statement and the Prospectus, or any amendment
or supplement thereto, as of the Closing Date (except for the financial
statements and other financial and statistical information contained therein or
omitted therefrom as to which no opinion need be expressed), 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 statement therein not misleading. With
respect to such statement, counsel shall state that although such counsel did
not undertake to determine independently the accuracy, completeness and fairness
of the statements contained in the Registration Statement or in the Prospectus
and takes no responsibility therefor (except to the extent specifically set
forth herein), such counsel did participate in discussions and meetings with
officers and other representatives of the Company and discussions with the
auditor for the Company in connection with the preparation of the Registration
Statement and the Prospectus, and it is on the basis of the
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foregoing (relying as to certain factual matters on the information provided to
such counsel and not on an independent investigation) that such counsel is
making such statement.
(d) You shall have received on the Closing Date (and the Additional
Closing Date, if any) an opinion of King & Spalding, counsel for the
Underwriters, dated the Closing Date (and the Additional Closing Date, if any),
with respect to the issuance and sale of the Firm Shares (and Additional Shares,
if any), the Registration Statement and other related matters as you may
reasonably request, and the Company and its counsel shall have furnished to your
counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(e) You shall have received letters addressed to you and dated the date
hereof and the Closing Date (and the Additional Closing Date, if any) from Ernst
& Young LLP and KPMG Peat Marwick LLP, independent certified public accountants,
substantially in the forms heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock (except for shares issued pursuant to the employee
stock purchase plan) or other securities of the Company nor any material
increase in the short-term or long-term debt of the Company (other than in the
ordinary course of business) from that set forth or contemplated in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); (iii) there shall not have been since the respective dates as of which
information is given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement thereto),
any material adverse change (present or potential future) in the condition
(financial or other), business properties, net worth or results of operations of
the Company and the Subsidiaries, taken as a whole, and the Company and the
Subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business) that are material to the
Company and the Subsidiaries, taken as a whole, other than those reflected in
the Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all of the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the date hereof and on and as of the Closing Date as if made on and
as of the Closing Date, and you shall have received a certificate, dated the
Closing Date and signed by the chief executive officer and the chief financial
officer of the Company (or such other officers as are acceptable to you) to the
effect set forth in this Section 9(g) and in Section 9(h) hereof.
(g) The Company shall not have failed in any material respect at or
prior to the Closing Date to have performed or complied with any of its
agreements herein contained and required to be performed or complied with by it
hereunder at or prior to the Closing Date.
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(h) The Company shall have furnished or caused to have been furnished
to you such further certificates and documents as you shall have reasonably
requested.
(i) At or prior to the Closing Date, you shall have received the
written commitment of each of the Company's directors, executive officers and
shareholders set forth on Schedule II hereto, not to offer, sell or otherwise
dispose of any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for, or any rights to purchase or acquire, Common
Stock, during the period from the time of effectiveness of the Registration
Statement to the date 180 days following the effective date of the Registration
Statement, inclusive, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
Associates, Inc., which commitments shall be in full force and effect as of the
Closing Date (and the Additional Closing Date, if any).
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to you and your counsel.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the satisfaction on and as of the Additional
Closing Date of the conditions set forth in this Section 9, except that, if the
Additional Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (i) shall be dated on
the Additional Closing Date and the opinions and letters referred to in
paragraphs (c) through (e) shall be revised to reflect the sale of Additional
Shares.
SECTION 10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the later of (a) the execution and delivery hereof by the parties
hereto, or (b) the effectiveness of the Registration Statement by the
Commission.
If any one or more of the Underwriters shall fail or refuse to purchase
Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of Firm Shares, each non-defaulting Underwriter shall be
obligated, severally, in the proportion to which the number of Firm Shares set
forth opposite its name in Schedule I hereto bears to the aggregate number of
Firm Shares set forth opposite the names of all non-defaulting Underwriters or
in such other proportion as you may specify in the Agreement Among Underwriters,
to purchase the Firm Shares which such defaulting Underwriter or Underwriters
agreed, but failed or refused to purchase. If any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares and the aggregate number of Firm
Shares with respect to which such default occurs is more than one-tenth of the
aggregate number of Firm Shares and arrangements satisfactory to you and the
Company for the purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case that does not result
in termination of this Agreement, either you or the Company shall have the right
to postpone the Closing Date, but in no event for longer than seven (7) days, in
order that
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the required changes, if any, in the Registration Statement and the Prospectus
or any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any such default of any such Underwriter under this Agreement.
SECTION 11. TERMINATION OF AGREEMENT. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of any
Underwriter to the Company, by notice to the Company, if prior to the Closing
Date or the Additional Closing Date (if different from the Closing Date and then
only as to the Additional Shares), as the case may be, (i) trading in securities
generally on the New York Stock Exchange, American Stock Exchange or The Nasdaq
Stock Market shall have been suspended or materially limited, (ii) trading of
any securities of the Company, including the Shares, on the New York Stock
Exchange, American Stock Exchange or The Nasdaq Stock Market, as the case may
be, shall have been suspended or materially limited, whether as the result of a
stop order by the Commission or otherwise, (iii) a general moratorium on
commercial banking activities in New York or Florida shall have been declared by
either federal or state authorities, (iv) there shall have occurred any outbreak
or escalation of hostilities or other international or domestic calamity, crisis
or change in political, financial or economic conditions or other material event
the effect of which on the financial markets of the United States is such as to
make it, in your judgment, impracticable or inadvisable to market the Shares or
to enforce contracts for the sale of the Shares, or (v) the Company or any
Subsidiary shall have, in the sole judgment of the Representatives, sustained
any loss or interference, material to the Company and the Subsidiaries, taken as
a whole, with their respective businesses or properties from fire, flood,
hurricane, accident, or other calamity, whether or not covered by insurance, or
from any labor disputes or any legal or governmental proceeding, or there shall
have been any material adverse change (including, without limitation, a material
change in management or control of the Company) in the condition (financial or
otherwise), business prospects, net worth, or results of operations of the
Company and the Subsidiaries, taken as a whole, except in each case as described
in, or contemplated by, the Prospectus (including any amendment or supplement
thereto). Notice of such cancellation shall be promptly given to the Company and
its counsel by telegraph, telecopy or telephone and shall be subsequently
confirmed by letter.
All representations, warranties, covenants and agreements of the
Company herein or in certificates delivered pursuant hereto, and the indemnity
and contribution agreements contained in Section 8 hereof shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any controlling person, or by or on behalf of the
Company or any of their officers, directors or controlling persons, and shall
survive the delivery of the Shares to the several Underwriters hereunder or
termination of this Agreement.
SECTION 12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements
set forth under the caption "Underwriting" in any Prepricing Prospectus and in
the Prospectus, constitute
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all the information furnished by or on behalf of the Underwriters through you or
on your behalf as such information is referred to in Sections 6(a), 6(b) and 8
hereof.
SECTION 13. NOTICES; SUCCESSORS AND ASSIGNS. Except as otherwise
provided herein, notice given pursuant to any of the provisions of this
Agreement shall be in writing and shall be delivered (i) if to the Company, at
the office of the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇., Chief Financial Officer, with a copy to ▇▇▇
▇. ▇▇▇▇▇▇▇▇, Esq., Glass, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇; or (ii) if to you, as the Underwriters, to
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., King &
Spalding, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 14. This Agreement has been and is made solely for the benefit
of the several Underwriters, the Company, its directors and officers and the
other controlling persons referred to in Section 8 hereof, and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither of the
terms "successor" and "successors and assigns" as used in this Agreement shall
include a purchaser from you of any of the Shares in his status as such
purchaser.
SECTION 15. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
without reference to choice of law principles thereunder. This Agreement may be
signed in various counterparts which together shall constitute one and the same
instrument. This Agreement shall be effective when, but only when, at least one
counterpart hereof shall have been executed on behalf of each party hereto.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
FIDELITY NATIONAL CORPORATION
By:
-------------------------------------
M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chief Financial Officer
FIDELITY NATIONAL BANK
By:
-------------------------------------
Name:
Title:
CONFIRMED as of the date first
above mentioned, on behalf of
itself and the other several
Underwriters named in Schedule I
hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ASSOCIATES, INC.
By:
----------------------------------
Authorized Representative
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SCHEDULE I
UNDERWRITERS
Number of
Name Firm Shares
---- -----------
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates Inc................
Total......................................... =========
3,000,000
35
SCHEDULE II
LOCK-UP AGREEMENTS
Name
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
W. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, III
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
