EXHIBIT 1
BANKFIRST CORPORATION
1,600,000 Shares of Common Stock
UNDERWRITING AGREEMENT
August ___, 1998
▇.▇. ▇▇▇▇▇▇▇▇ & CO., L.L.C.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇▇▇ Financial Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
BankFirst Corporation, a Tennessee corporation (the "Company"), and
certain shareholders of the Company identified on Schedule II hereto (the
"Selling Shareholders") propose to sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you are acting as the
representatives (the "Representatives"), _________ and ________shares,
respectively (collectively, the "Firm Shares"), of the Common Stock, $2.50 par
value per share (the "Common Stock"), of the Company. The Company proposes to
grant to the Underwriters an option to purchase up to 240,000 additional shares
of Common Stock as provided for in Section 3 of this Agreement for the purpose
of covering over-allotments (the "Option Shares"). The Underwriters, severally
and not jointly, are willing to purchase the Firm Shares set forth opposite
their respective names on Schedule I hereto and their pro-rata share of the
Option Shares in the event the Representatives elect to exercise the
over-allotment taken in whole or in part. The Firm Shares and the Option Shares
purchased pursuant to this Underwriting Agreement (the "Agreement"), are
collectively referred to herein as the "Shares."
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as
amended (the "Securities Act"), a registration statement on Form S-1
(Registration No. 333-_________), including the related preliminary
prospectus relating to the Shares. Copies of such registration statement
and
any amendments, including any post-effective amendments, and all forms of
the related prospectuses contained therein and any supplements thereto,
have been delivered to you. Such registration statement, including the
prospectus, Part II, all financial schedules and exhibits thereto, all
information deemed to be a part of such registration statement pursuant to
Rule 430A under the Rules and Regulations (as hereinafter defined) and any
related registration statement filed pursuant to Rule 462(b) under the
Rules and Regulations, at the time when they became effective, are herein
referred to as the "Registration Statement," and the prospectus included
as part of the Registration Statement on file with the Commission that
discloses all the information that was omitted from the prospectus
pursuant to Rule 430A under the Rules and Regulations on the date that the
Registration Statement became effective and in the form filed pursuant to
Rule 424(b) of the Rules and Regulations, is herein referred to as the
"Final Prospectus." The prospectus included as part of the Registration
Statement on the date when the Registration Statement became effective is
referred to herein as the "Effective Prospectus." Any prospectus included
in the Registration Statement and in any amendment thereto prior to the
date on which the Registration Statement became effective is referred to
herein as a "Preliminary Prospectus." For purposes of this Agreement,
"Rules and Regulations" means the rules and regulations promulgated by the
Commission under either the Securities Act or the Securities Exchange of
1934, as amended (the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus and no proceeding for that purpose
has been instituted or threatened by the Commission or the securities
authority of any state or other jurisdiction. Each Preliminary Prospectus,
at the time of filing thereof, complied with the requirements of the
Securities Act and the Rules and Regulations, and did not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; except that the foregoing does not apply to statements or
omissions made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through ▇.▇. ▇▇▇▇▇▇▇▇ & Co.
("Bradford") specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the [third, fourth, fifth and eighth
paragraphs] under the caption "Underwriting" in the Preliminary, Effective
and Final Prospectus). When the Registration Statement becomes effective
and at all times subsequent thereto up to and including the First Closing
Date (as hereinafter defined), (i) the Registration Statement, the
Effective Prospectus and the Final Prospectus and any amendments or
supplements thereto will contain all statements which are required to be
stated therein in accordance with the
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Securities Act and the Rules and Regulations and will comply with the
requirements of the Securities Act and the Rules and Regulations, and (ii)
neither the Registration Statement, the Effective Prospectus nor the Final
Prospectus nor any amendment or supplement thereto will include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
except that the foregoing does not apply to statements or omissions made
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through Bradford specifically for use
therein (it being understood that the only information so provided is the
information included in the last paragraph on the cover page and in the
[third, fourth, fifth and eighth paragraphs] under the caption
"Underwriting" in the Final Prospectus).
(c) The Company is duly organized and validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization with full power and authority to own its properties and
conduct its business as now conducted and is duly qualified or authorized
to do business and is in good standing in all jurisdictions wherein the
nature of its business or the character of property owned or leased may
require it to be authorized or qualified to do business, except where
failure to obtain such authorization or qualification would not have a
material adverse effect on the Company's condition (financial or
otherwise). The Company holds all licenses, consents and approvals, and
has satisfied all eligibility and other similar requirements imposed by
federal, state and local regulatory bodies, administrative agencies or
other governmental bodies, agencies or officials, in each case as required
for the conduct of the business in which it is engaged and is contemplated
to be engaged as set forth in the Effective Prospectus.
(d) All of the consolidated corporations, partnerships (including,
without limitation, general and limited partnerships) and limited
liability companies in which the Company has a direct or indirect
ownership interest are listed in Schedule III to this Agreement
(collectively, the "Subsidiaries"). Each Subsidiary that is a corporation,
including a banking corporation or association (a "Corporate Subsidiary")
has been duly organized and is validly existing as such a corporation in
good standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement. Each Corporate Subsidiary is duly qualified and in good
standing as a foreign corporation authorized to do business in each other
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the
Company's condition (financial or otherwise). All of the outstanding
shares of capital
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stock of each Corporate Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable, were not issued in violation of
or subject to any preemptive or similar rights, and, except as set forth
on Schedule III, are owned by the Company directly, or indirectly through
one of the other Subsidiaries, free and clear of all security interests,
liens, encumbrances and equities and claims; and no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligations into shares of capital stock or
ownership interests in any Corporate Subsidiary are outstanding.
(e) Each Subsidiary that is a partnership (a "Partnership") has been
duly organized, is validly existing as a partnership in good standing
under the laws of its jurisdiction of organization and has the partnership
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement. Each
Partnership is duly qualified and in good standing as a foreign
partnership authorized to do business in each other jurisdiction in which
the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company's condition
(financial or otherwise). The capital contributions with respect to the
outstanding units of each Partnership have been made to the Partnership.
Except as set forth in Schedule III, the general and limited partnership
interests therein held directly or indirectly by the Company are owned
free and clear of all security interests, liens, encumbrances and equities
and claims; and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into ownership interests in any Partnership are outstanding.
Each partnership agreement pursuant to which the Company or a Subsidiary
holds an interest in a Partnership is in full force and effect and
constitutes the legal, valid and binding agreement of the parties thereto,
enforceable against such parties in accordance with the terms thereof,
except as enforcement thereof may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights
generally. There has been no material breach of or default under, and no
event which with notice or lapse of time would constitute a material
breach of or default under, such partnership agreements by the Company or
any Subsidiary or, to the Company's knowledge, any other party to such
agreements.
(f) Each Subsidiary that is a limited liability company (an "LLC")
has been duly organized, is validly existing as a limited liability
company in good standing under the laws of its jurisdiction of
organization and has the limited liability company power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement. Each LLC is duly qualified and in
good standing as a foreign limited liability company authorized to do
business in each other jurisdiction
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in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the Company's
condition (financial or otherwise). The capital contributions with respect
to the outstanding membership interests of each LLC have been made to the
LLC. All outstanding membership interests in the LLCs were issued and sold
in compliance with the applicable operating agreements or such LLCs and
all applicable federal and state securities laws, and, except as set forth
in Schedule 1(f), the membership interests therein held directly or
indirectly by the Company are owned free and clear of all security
interests, liens, encumbrances and equities and claims; and no options,
warrants or other rights to purchase, agreements or other obligations to
issue or other rights to convert any obligations into ownership interests
in any LLC are outstanding. Each operating agreement pursuant to which the
Company or a Subsidiary holds a membership interest in an LLC is in full
force and effect and constitutes the legal, valid and binding agreement of
the parties thereto, enforceable against such parties in accordance with
the terms thereof, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally. There has been no material breach of or
default under, and no event which with notice or lapse of time would
constitute a material breach of or default under, such operating
agreements by the Company or any Subsidiary or, to the Company's
knowledge, any other party to such agreements.
(g) Except as disclosed in the Prospectus, there are no consensual
encumbrances or restrictions on the ability of any Subsidiary (i) to pay
any dividends or make any distributions on such Corporate Subsidiary's
capital stock, such Partnership's partnership interests or such LLC's
membership interests or to pay any indebtedness owed to the Company or any
other Subsidiary, (ii) to make any loans or advances to, or investments
in, the Company or any other Subsidiary, or (iii) to transfer any of its
property or assets to the Company or any other Subsidiary.
(h) The capitalization of the Company as of _________ ___, 1998 is
as set forth under the caption "Capitalization" in the Effective
Prospectus and the Final Prospectus, and the Company's capital stock
conforms to the description thereof contained under the caption
"Description of Capital Stock" in the Effective Prospectus and the Final
Prospectus. All the issued shares of the Company's Common Stock have been
duly authorized and validly issued, and are fully paid and nonassessable.
None of the issued shares of the Company's Common Stock have been issued
in violation of any preemptive or similar rights. The Shares to be sold by
the Company hereunder have been duly and validly authorized and, upon
issuance and delivery and payment therefor in the manner herein described,
will be validly issued, fully paid and nonassessable. Except as set forth
in the Effective Prospectus and the ▇▇▇▇▇
▇
Prospectus, (i) the Company does not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, any shares of capital stock, and (ii) there are no preemptive rights
or other rights to subscribe for or to purchase, or any restriction upon
the transfer of, any shares of capital stock pursuant to the Company's
charter, bylaws or any agreement or other instrument to which the Company
is a party or by which it may be bound. Neither the filing of the
Registration Statement nor the issuance, offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration
of any shares of Common Stock or any other securities of the Company. The
Underwriters will receive good and marketable title to the Shares to be
issued and delivered hereunder, free and clear of all liens, encumbrances,
claims, security interests, restrictions, shareholders' agreements, voting
trusts or any other claims of third parties whatsoever.
(i) The form of stock certificate to be used to evidence the Common
Stock will be in due and proper form and will comply with all applicable
legal requirements.
(j) All offers and sales by the Company of the Company's securities
prior to the date hereof were at all relevant times duly registered or the
subject of an available exemption from the registration requirements of
the Securities Act, and were duly registered or the subject of an
available exemption from the registration requirements of the applicable
state securities or Blue Sky laws, and any private placement memoranda
delivered in connection with offers and sales of the Company's securities
prior to the date hereof did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein not misleading.
(k) The Company has full legal right, power and authority to enter
into this Agreement and to 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 constitutes a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms. No consent, approval, authorization or order of
any court or governmental agency or body or third party is required for
the performance of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby, except such as have
been obtained and such as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or under the Securities Act or state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters. The issuance and sale of
the Shares by
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the Company, the Company's performance of this Agreement and the
consummation of the transactions contemplated hereby will not result in a
breach or violation of, or conflict with, any of the terms and provisions
of, or constitute a default by the Company under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument to
which the Company is a party or to which the Company or any of its
properties is subject, the charter, bylaws or other governing instruments
of the Company or any statute or any judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to the
Company or any of its properties. The Company is not in violation of its
charter, bylaws or other governing instruments or any law, administrative
rule or regulation or arbitrators' or administrative court decree,
judgment or order or in violation or default (there being no existing
state of facts which with notice or lapse of time or both would constitute
a default) in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
deed of trust, mortgage, loan agreement, note, lease, agreement or other
instrument or permit to which it is a party or by which it or any of its
properties is or may be bound.
(l) The historical financial statements, together with the related
schedules and notes, of the Company, included in the Registration
Statement, the Effective Prospectus and the Final Prospectus, conform to
the requirements of the Securities Act and the Rules and Regulations. Such
financial statements fairly present the financial position of the Company
at the respective dates indicated in accordance with generally accepted
accounting principles applied on a consistent basis for the periods
indicated. The financial and statistical data set forth in the Effective
Prospectus and the Final Prospectus fairly present the information set
forth therein on the basis stated in the Effective Prospectus and the
Final Prospectus. ▇▇▇▇▇, ▇▇▇▇▇▇ and Company LLP ("▇▇▇▇▇ ▇▇▇▇▇▇"), whose
reports are included in the Effective Prospectus and the Final Prospectus,
are independent accountants as required by the Securities Act and the
Rules and Regulations. The other financial statements and schedules
included in or as schedules to the Registration Statement, the Effective
Prospectus and the Final Prospectus conform to the requirements of the Act
and the Regulations and present fairly the information presented therein
for the periods shown. The unaudited pro forma financial statements and
notes thereto are in conformity with generally accepted accounting
principles and are presented on the basis of appropriate and reasonable
pro forma adjustments.
(m) Subsequent to __________ __, 199_, the Company and the
Subsidiaries have not sustained any material loss or interference with its
business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, which is not disclosed
in the Effective
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Prospectus and the Final Prospectus; and subsequent to the respective
dates as of which information is given in the Registration Statement, the
Effective Prospectus and the Final Prospectus, (i) the Company and the
Subsidiaries have not incurred any material liabilities or obligations,
direct or contingent, or entered into any transactions not in the ordinary
course of business, and (ii) there has not been any issuance of options,
warrants or rights to purchase interests or the capital stock of the
Company and the Subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in the
general affairs, management, business, prospects, financial position, net
worth or results of operations of the Company and the Subsidiaries, except
in each case as described in the Effective Prospectus and the Final
Prospectus.
(n) Except as described in the Effective Prospectus and the Final
Prospectus, there is not pending, or to the knowledge of the Company
threatened, any legal or governmental action, suit, proceeding, inquiry or
investigation, to which the Company, the Subsidiaries or any of the
Company's officers or directors is a party, or to which its property is
subject, before or brought by any court or governmental agency or body,
wherein an unfavorable decision, ruling or finding could prevent or
materially hinder the consummation of this Agreement or result in a
material adverse change in the business condition (financial or other),
prospects, financial position, net worth or results of operations of the
Company.
(o) _______________ shares of Common Stock, including the Shares,
have been approved for listing on the Nasdaq National Market (the "Nasdaq
National Market"), subject to official notice of issuance.
(p) Neither the Company nor any of its directors, officers or
controlling persons, has taken or will take, directly or indirectly, any
action resulting in a violation of Regulation M under the Exchange Act, or
designed to cause or result under the Exchange Act or otherwise in, or
which has constituted or which reasonably might be expected to constitute,
the stabilization or manipulation of the price of any securities of the
Company or facilitation of the sale or resale of the Shares.
(q) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus
or to be filed as exhibits to the Registration Statement which have not
been described or filed as required. All such contracts to which the
Company and the Subsidiaries are a party have been duly authorized,
executed and delivered by the Company and the Subsidiaries, constitute
valid and binding agreements of the Company and the Subsidiaries and are
enforceable against the Company and the Subsidiaries in accordance with
the terms thereof. The
8
Company and the Subsidiaries have performed all obligations required to be
performed by them, and are neither in default nor have they received
notice of any default or dispute under, any such contract or other
material instrument to which they are a party or by which their property
is bound or affected. To the best knowledge of the Company, no other party
under any such contract or other material instrument to which the Company
and the Subsidiaries are a party is in default in any material respect
thereunder.
(r) Except as described in the Effective Prospectus and the Final
Prospectus, the Company and the Subsidiaries have good and marketable
title to all real and material personal property owned by them, free and
clear of all liens, charges, encumbrances or defects, except those
reflected in the financial statements hereinabove described. The real and
personal property and buildings referred to in the Effective Prospectus
and the Final Prospectus which are leased from others by the Company and
the Subsidiaries are held under valid, subsisting enforceable leases. The
Company and the Subsidiaries own or lease all such properties as is
necessary to the Company's operations as now conducted.
(s) The Company's system of internal accounting controls is
sufficient to meet the broad objectives of internal accounting controls
insofar as those objectives pertain to the prevention or detection of
errors or irregularities in amounts that would be material in relation to
the Company's financial statements.
(t) The Company and the Subsidiaries have filed all foreign,
federal, state and local income and franchise tax returns required to be
filed through the date hereof and have paid all taxes shown as due thereon
to the extent such taxes have become due and are not being contested in
good faith; and there is no tax deficiency that has been, nor does the
Company have knowledge of any tax deficiency which is likely to be,
asserted against the Company or any of the Subsidiaries which, if
determined adversely, could materially and adversely affect the earnings,
assets, affairs, business prospects or condition (financial or other) of
the Company.
(u) The Company and the Subsidiaries operate their businesses in
conformity with all applicable statutes, common laws, ordinances, decrees,
orders, rules and regulations of governmental bodies. The Company and the
Subsidiaries have all licenses, approvals or consents to operate their
businesses in all locations in which such business is currently being
operated and is not aware of any existing or imminent matter which may
materially adversely impact their operations or business prospects other
than as specifically disclosed in the Effective Prospectus and the Final
Prospectus.
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(v) Neither the Company nor any of its Subsidiaries is in violation
of any federal, state, local or foreign law or regulation relating to
occupational safety and health or to the storage, handling or
transportation of hazardous or toxic materials, and the Company and the
Subsidiaries have received all permits, licenses or other approvals
required of them under applicable federal, state and foreign occupational
safety and health and environmental laws and regulations to conduct their
respective businesses, and the Company and the Subsidiaries are in
compliance with all terms and conditions of any such permit, license or
approval, except for any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals which
would not result in a material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or prospects of the
Company.
(w) Neither the Company nor any of its Subsidiaries has failed to
file with the applicable regulatory authorities any statements, reports,
information or forms required by all applicable laws, regulations or
orders; all such filings or submissions were in compliance with applicable
laws when filed, and no material deficiencies have been asserted by any
regulatory commission, agency or authority with respect to such filings or
submissions. Neither the Company nor any of its Subsidiaries has failed to
maintain in full force and effect any licenses, registrations or permits
necessary or proper for the conduct of their respective businesses, or
received any notification that any revocation or limitation thereof is
threatened or pending, and there is not to the knowledge of the Company
pending any change under any law, regulation, license or permit which
could materially adversely affect the business, operations, property or
business prospects of the Company and the Subsidiaries. Neither the
Company nor any of its Subsidiaries has received any notice of violation
of or been threatened with a charge of violating or is under investigation
with respect to a possible violation of any provision of any law,
regulation or order.
(x) No labor dispute exists or is imminent with any of the employees
of the Company and the Subsidiaries or otherwise which could materially
adversely affect the Company. The Company is not aware of any existing or
imminent labor disturbance by employees of the Company and the
Subsidiaries which could be expected to materially adversely affect the
condition (financial or otherwise), results of operations, properties,
affairs, management, business affairs or business prospects of the
Company. The Company and the Subsidiaries are in compliance with all
federal, state and local employment and labor laws, including but not
limited to, laws relating to non-discrimination in hiring, promotion and
pay of employees.
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(y) The Company and the Subsidiaries own or possess all
licenses, patents, copyrights, trademarks, service marks and trade
names currently employed by it in connection with the businesses
currently operated or proposed to be operated by them, and the Company
has not received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which,
alone or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company.
(z) 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 businesses in which they
are engaged and in which they propose to engage; and the Company has no
reason to believe that it and the Subsidiaries will not be able to renew
its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to
continue its business.
(aa) Neither the Company, the Subsidiaries, nor any director,
officer, agent, employee or other person acting on behalf of the Company
has (i) used, or authorized the use of, any corporate or other funds for
unlawful payments, contributions, gifts or entertainment, (ii) made
unlawful expenditures relating to political activity to government
officials or others, or (iii) established or maintained any unlawful or
unrecorded funds in violation of any federal, state, local or foreign law
or regulation, including Section 30A of the Exchange Act. Neither the
Company nor any director, officer, agent, employee or other person acting
on behalf of the Company has accepted or received any unlawful
contributions, payments, gifts or expenditures.
(bb) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its
business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940.
(cc) Except as disclosed in the Registration Statement and the
Effective Prospectus, there are no business relationships or related party
transactions required to be disclosed therein by Item 404 of Regulation
S-K promulgated by the Commission.
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2. Representations and Warranties of the Selling Shareholders. Each of the
Selling Shareholders, severally and not jointly, represents and warrants to and
agrees with, each of the Underwriters that:
(a) Such Selling Shareholder, at the First Closing Date, will have
good and marketable title to the Shares set forth in Schedule II to be
sold by such Selling Shareholder, free and clear of any liens,
encumbrances, equities and claims (other than as imposed by the Securities
Act or this Agreement), and full right, power and authority to effect the
sale and delivery of such Shares; and upon the delivery of and payment for
the Shares to be sold by such Selling Shareholder pursuant to this
Agreement, good and marketable title thereto, free and clear of any liens,
encumbrances, equities and claims, of any kind, will be transferred to the
Underwriters.
(b) Such Selling Shareholder has duly executed and delivered the
Custody Agreement and Power of Attorney in the form previously delivered
to the Representatives, appointing the persons named therein, and each of
them as such Selling Shareholder's attorney-in-fact (the
"Attorney-in-Fact") and as custodian (the "Custodian"). The
Attorney-in-Fact is authorized to execute, deliver and perform this
Agreement on behalf of such Selling Shareholder, to deliver the Shares to
be sold by such Selling Shareholder hereunder, to accept payment therefor,
and otherwise to act on behalf of such Selling Shareholder in connection
with this Agreement, including payment from the Offering proceeds of
expenses incurred on behalf of such Selling Shareholder. Certificates, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank, representing the Shares to
be sold by such Selling Shareholder hereunder have been deposited with the
Custodian pursuant to the Custody Agreement and Power of Attorney for the
purpose of delivery pursuant to this Agreement. Such Selling Shareholder
agrees that the shares of Common Stock represented by the certificates on
deposit with the Custodian are subject to the interest of the Underwriters
hereunder, that the arrangements made for such custody and the appointment
of the Attorney-in-Fact are to that extent irrevocable, and that the
obligations of such Selling Shareholder hereunder shall not be terminated
except as provided in this Agreement and the Custody Agreement and Power
of Attorney. If such Selling Shareholder should die or become
incapacitated, or if any other event should occur, before the delivery of
the Shares of such Selling Shareholder hereunder, the certificates for
such Shares deposited with the Custodian shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as
if such death, incapacity or other event had not occurred, regardless of
whether the Custodian or the Attorney-in-Fact shall have received notice
thereof.
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(c) Such Selling Shareholder, acting through his duly authorized
Attorney-in-Fact, has duly executed and delivered this Agreement and the
Custody Agreement and Power of Attorney; this Agreement constitutes a
legal, valid and binding obligation of such Selling Shareholder, all
authorizations and consents necessary for the execution and delivery of
this Agreement and the Custody Agreement and Power of Attorney on behalf
of such Selling Shareholder and for the sale and delivery of the Shares to
be sold by such Selling Shareholder hereunder have been given, except as
may be required by the Securities Act or state securities laws; and such
Selling Shareholder has the legal capacity and full right, power and
authority to execute this Agreement and the Custody Agreement and Power of
Attorney.
(d) The performance of this Agreement and the Custody Agreement and
Power of Attorney and the consummation of the transactions contemplated
hereby and thereby by such Selling Shareholder will not result in a breach
or violation of, or conflict with, any of the terms or provisions of, or
constitute a default by such Selling Shareholder under, any indenture,
mortgage, deed of trust, trust (constructive or other), loan agreement,
lease, franchise, license or other agreement or instrument to which such
Selling Shareholder or any of his or its properties is bound, or any
statute, judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to such Selling Shareholder or any
of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than as
permitted by the Securities Act and the Rules and Regulations, will
distribute any prospectus or other offering material in connection with
the offer and sale of the Shares other than any Preliminary Prospectus
filed with the Commission or the Final Prospectus or other material
permitted by the Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with the
Registration Statement and the Preliminary Prospectus. To the knowledge of
such Selling Shareholder, the Preliminary Prospectus does not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(h) At the time the Registration Statement becomes effective (i)
such parts of the Registration Statement and any amendments and
supplements thereto as specifically refer to such Selling Shareholder will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) such parts of the Effective
Prospectus and Final Prospectus as specifically refer to such Selling
Shareholder will not include an untrue statement of a material fact or
omit to state a material fact
13
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(i) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative or
other governmental body is necessary in connection with the execution and
delivery of this Agreement by such Selling Shareholder, and the
consummation by such Selling Shareholder of the transactions herein
contemplated (other than as required by the Securities Act, state
securities laws and the NASD).
(j) Any certificates signed by or on behalf of such Selling
Shareholder as such and delivered to the Representatives or to counsel for
the Representatives shall be deemed a representation and warranty by such
Selling Shareholder to each Underwriter as to the matters covered thereby.
(k) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Internal Revenue Code of 1986,
as amended, with respect to the transactions herein contemplated, such
Selling Shareholder agrees to deliver to you prior to or at the First
Closing Date (as hereinafter defined) a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
(l) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action resulting in a violation of Regulation
M under the Exchange Act which has constituted or which reasonably might
be expected to constitute, the stabilization or manipulation of the price
of any securities of the Company or facilitation of the sale or resale of
the Shares.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein
set forth, the Company and the Selling Shareholders, severally and not
jointly, in the amount set forth on Schedule II hereto, agree to sell to
the several Underwriters __________ and ___________, Firm Shares,
respectively, and each of the Underwriters, severally and not jointly,
agrees to purchase at a purchase price of $______ per share, the number of
Firm Shares set forth opposite such Underwriter's name in Schedule I
hereto.
(b) The Company hereby grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the sale
of Firm Shares, all or any portion of the Option Shares at the purchase
price per share set forth above. The option granted hereby may be
exercised as to all or any part of the Option Shares at any time within 30
days after the date of the Final Prospectus. The Underwriters shall not be
under any obligation
14
to purchase any Option Shares prior to the exercise of such option. The
option granted hereby may be exercised by the Underwriters by Bradford
giving written notice to the Company setting forth the number of Option
Shares to be purchased and the date and time for delivery of and payment
for such Option Shares and stating that the Option Shares referred to
therein are to be used for the purpose of covering over-allotments in
connection with the distribution and sale of the Firm Shares. If such
notice is given prior to the First Closing Date (as hereinafter defined),
the date set forth therein for such delivery and payment shall not be
earlier than two full business days thereafter or the First Closing Date,
whichever occurs later. If such notice is given on or after the First
Closing Date, the date set forth therein for such delivery and payment
shall not be earlier than three full business days thereafter. In either
event, the date so set forth shall not be more than four full business
days after the date of such notice. The date and time set forth in such
notice is herein called the "Option Closing Date." Upon exercise of the
option, the Company shall become obligated to sell to the Underwriters,
and, subject to the terms and conditions herein set forth, the
Underwriters shall become obligated to purchase, for the account of each
Underwriter, from the Company, severally and not jointly, the number of
Option Shares specified in such notice. Option Shares shall be purchased
for the accounts of the Underwriters in proportion to the number of Firm
Shares set forth opposite such Underwriter's name in Schedule I hereto,
except that the respective purchase obligations of each Underwriter shall
be adjusted so that no Underwriter shall be obligated to purchase
fractional Option Shares.
(c) Certificates in definitive form for the Firm Shares which each
Underwriter has agreed to purchase hereunder shall be delivered by or on
behalf of the Company to the Underwriters for the account of such
Underwriter against payment by such Underwriter or on its behalf of the
purchase price therefor by wire transfer of immediately available funds to
the order of the Company, at the offices of Bradford, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as may be agreed upon
by Bradford and the Company, at 10:00 A.M., Nashville time, on the third
full business day after this Agreement becomes effective, or, at the
election of the Underwriters, on the fourth full business day after this
Agreement becomes effective, if it becomes effective after 4:30 P.M.
Eastern time, or at such other time not later than the seventh full
business day thereafter as the Underwriters and the Company may determine,
such time of delivery against payment being herein referred to as the
"First Closing Date." The First Closing Date and the Option Closing Date
are herein individually referred to as the "Closing Date" and collectively
referred to as the "Closing Dates." Certificates in definitive form for
the Option Shares which each Underwriter shall have agreed to purchase
hereunder shall be similarly delivered by or on behalf of the Company on
the Option Closing Date. The certificates in definitive form for the
Shares to be delivered will be in good delivery form
15
and in such denominations and registered in such names as ▇▇▇▇▇▇▇▇ ▇▇▇
request not less than 48 hours prior to the First Closing Date or the
Option Closing Date, as the case may be. Such certificates will be made
available for checking and packaging at a location in New York, New York
as may be designated by Bradford, at least 24 hours prior to the First
Closing Date or the Option Closing Date, as the case may be. It is
understood that ▇▇▇▇▇▇▇▇ ▇▇▇ (but shall not be obligated to) make payment
on behalf of any Underwriter or Underwriters for the Shares to be
purchased by such Underwriter or Underwriters. No such payment shall
relieve such Underwriter or Underwriters from any of its or their
obligations hereunder.
4. Offering by the Underwriters. After the Registration Statement becomes
effective, the several Underwriters propose to offer for sale to the public the
Firm Shares and any Option Shares which may be sold at the price and upon the
terms set forth in the Final Prospectus.
5. Covenants of the Company and the Selling Shareholders.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company shall comply with the provisions of and make
all requisite filings with the Commission pursuant to Rules 424 and
430A of the Rules and Regulations and shall notify the
Representatives promptly (in writing, if requested) of all such
filings. The Company shall notify the Representatives promptly of
any request by the Commission for any amendment of or supplement to
the Registration Statement, the Effective Prospectus or the Final
Prospectus or for additional information; the Company shall prepare
and file with the Commission, promptly upon the Underwriters'
request, any amendments of or supplements to the Registration
Statement, the Effective Prospectus or the Final Prospectus which,
in the Underwriters' opinion, may be necessary or advisable in
connection with the distribution of the Shares; and the Company
shall not file any amendment of or supplement to the Registration
Statement, the Effective Prospectus or the Final Prospectus which is
not approved by the Representatives after reasonable notice thereof.
The Company shall advise the Representatives promptly of the
issuance by the Commission or any jurisdiction or other regulatory
body of any stop order or other order suspending the effectiveness
of the Registration Statement, suspending or preventing the use of
any Preliminary Prospectus, the Effective Prospectus or the Final
Prospectus or suspending the qualification of the Shares for
offering or sale in any jurisdiction, or of the institution of any
proceedings for any such purpose; and the Company shall use its best
efforts to prevent the
16
issuance of any stop order or other such order and, should a stop
order or other such order be issued, to obtain as soon as possible
the lifting thereof.
(ii) The Company will take or cause to be taken all necessary
action and furnish to whomever the Representatives direct, such
information as may be reasonably required in qualifying the Shares
for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriters may designate and will continue
such qualifications in effect for as long as may be reasonably
necessary to complete the distribution of the Shares.
(iii) Within the time during which a Final Prospectus relating
to the Shares is required to be delivered under the Securities Act,
the Company shall comply with all requirements imposed upon it by
the Securities Act, as now and hereafter amended, and by the Rules
and Regulations, as from time to time in force, so far as is
necessary to permit the continuance of sales of or dealings in the
Shares as contemplated by the provisions hereof and the Final
Prospectus. If during such period any event occurs as a result of
which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances then existing, not misleading, or if during
such period it is necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Securities Act,
the Company shall promptly notify the Representatives and shall
amend the Registration Statement or supplement the Final Prospectus
(at the expense of the Company) so as to correct such statement or
omission or effect such compliance.
(iv) The Company will furnish without charge to the
Representatives and make available to the Underwriters copies of the
Registration Statement (four of which shall be signed and shall be
accompanied by all exhibits), each Preliminary Prospectus, the
Effective Prospectus and the Final Prospectus, and all amendments
and supplements thereto, including any prospectus or supplement
prepared after the effective date of the Registration Statement, in
each case as soon as available and in such quantities as the
Underwriters may reasonably request.
(v) The Company will (A) deliver to the Representatives at
such office or offices as the Representatives may designate as many
copies of the Preliminary Prospectus and Final Prospectus as the
Representatives may reasonably request, (B) for a period of not more
than nine months after the Registration Statement becomes effective,
17
send to the Representatives as many additional copies of the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request, and (C) following nine months after the
Registration Statement becomes effective, send to the
Representatives at their expense as many additional copies of the
Final Prospectus and any supplement hereto as the Representative may
reasonably request.
(vi) The Company shall make generally available to its
security holders, in the manner contemplated by Rule 158(b) under
the Rules and Regulations as promptly as practicable and in any
event no later than 45 days after the end of its fiscal quarter in
which the first anniversary of the effective date of the
Registration Statement occurs, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act covering a period
of at least 12 consecutive months beginning after the effective date
of the Registration Statement.
(vii) The Company will apply the net proceeds from the sale of
the Shares to be sold by it as set forth under the caption "Use of
Proceeds" in the Final Prospectus and will timely report such use of
proceeds in its periodic reports filed pursuant to sections 13(a)
and 15(d) of the Exchange Act in accordance with Rule 463 of the
Securities Act or any successor provision.
(viii) During a period of five years from the effective date
of the Registration Statement or such longer period as the
Representatives may reasonably request, the Company will furnish to
the Representatives copies of all reports and other communications
(financial or other) furnished by the Company to its shareholders
and, as soon as available, copies of any reports or financial
statements furnished or filed by the Company to or with the
Commission or any national securities exchange or over-the-counter
market on which any class of securities of the Company may be listed
for trading.
(ix) The Company will, from time to time, after the effective
date of the Registration Statement file with the Commission such
reports as are required by the Securities Act, the Exchange Act and
the Rules and Regulations, and shall also file with foreign, state
and other governmental securities commissions in jurisdictions where
the Shares have been sold by the Underwriters (as the
Representatives shall have advised the Company in writing) such
reports as are required to be filed by the securities acts and the
regulations of those jurisdictions.
(x) Except pursuant to this Agreement or with the
Representatives' written consent, for a period of 180 days from the
effective date of the Registration Statement, the Company will not,
18
and the Company has provided agreements (the "Lockup Agreements")
executed by each of its officers, directors and 5% or greater
Shareholders providing that for a period of [150] days from the
effective date of the Registration Statement, such person will not,
offer for sale, sell (other than the issuance by the Company of
shares of Common Stock pursuant to acquisitions or the exercise of
options granted pursuant to existing employee benefit plans and
agreements), grant any options (other than pursuant to existing
employee benefit plans and agreements), rights or warrants with
respect to any shares of Common Stock, securities convertible into
shares of Common Stock or any other capital stock of the Company, or
otherwise dispose of, directly or indirectly, any shares of Common
Stock or such other securities or capital stock.
(xi) Neither the Company nor any of its directors, officers or
controlling persons, has taken or will take, directly or indirectly,
any action resulting in a violation of Regulation M under the
Exchange Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of any securities of the
Company or facilitation of the sale or resale of the Shares.
(xii) The Company will either conduct its business and
operations, and that of its Subsidiaries, as described in the Final
Prospectus or, if the Company makes any material change to its or
its Subsidiaries' business or operations as so conducted, promptly
disclose such change generally to the Company's security holders.
(xiii) The Company will use its best efforts to effect the
listing of the Common Stock, subject to notice of issuance, on the
Nasdaq National Market on or before the effective date of the
Registration Statement.
(b) Each of the Selling Shareholders, severally and not jointly,
covenants and agrees with each of the Underwriters that:
(i) Such Selling Shareholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective
amendment thereto to become effective at the earliest possible time.
(ii) Such Selling Shareholder will pay all federal and other
taxes, if any, on the transfer or sale of the Shares being sold by
such Selling Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all things
required to be done or performed by such Selling Shareholder prior
19
to the First Closing Date to satisfy all conditions precedent to the
delivery of the Shares pursuant to this Agreement or the Power of
Attorney and Custody Agreement.
(iv) Such Selling Shareholder has delivered to the Company an
agreement pursuant to which such Selling Shareholder has agreed that
during the period of 180 days from the date the Registration
Statement is declared effective under the Securities Act, such
Selling Shareholder will not, without your prior written consent,
offer, pledge, issue, sell, contract to sell, grant any option for
the sale of, or otherwise dispose of (or announce any offer, pledge,
sale, grant of an option to purchase or other disposition), directly
or indirectly, any shares of Common Stock or securities convertible
into, exercisable or exchangeable for, shares of Common Stock.
(v) Such Selling Shareholder will not (i) take, directly or
indirectly, prior to the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to cause or to
result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of any of the Shares, (ii)
sell, bid for, purchase or pay anyone any compensation for the
solicitation of purchases of, the Shares or (iii) pay or agree to
pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(vi) Such Selling Shareholder will deliver to the Custodian on
or prior to the First Closing Date a properly completed and executed
United States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department Regulations in lieu
thereof).
(vii) Such Selling Shareholder will furnish any documents,
instruments or other information which you may reasonably request in
connection with the sale and transfer of the Shares.
(viii) Such Selling Shareholder will use such Selling
Shareholder's best efforts to comply or cause to be complied with
the conditions to the obligations of the Underwriters in Section 7
hereof insofar as such conditions relate to such Selling
Shareholder.
6. Expenses. The Company agrees with each of the Selling Shareholders and
the Underwriters that (a) whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is terminated,
the Company will pay all fees and expenses incident to the performance of the
obligations of the Company hereunder, including, but not limited to, (i) the
20
Commission's registration fee, (ii) the expenses of printing (or reproduction)
and distributing the Registration Statement (including the financial statements
therein and all amendments and exhibits thereto), each Preliminary Prospectus,
the Effective Prospectus, the Final Prospectus, any amendments or supplements
thereto, any Marketing Materials (as hereinafter defined) and this Agreement and
other underwriting documents, including Underwriter's Questionnaires,
Underwriter's Powers of Attorney, Blue Sky Memoranda, Agreements Among
Underwriters and Selected Dealer Agreements, (iii) fees and expenses of
accountants and counsel for the Company, (iv) expenses of registration or
qualification of the Shares under state Blue Sky and securities laws, including
the fees and disbursements of counsel to the Underwriters in connection
therewith, (v) filing fees paid or incurred by the Underwriters in connection
with filings with the NASD, (vi) expenses of listing the outstanding Common
Stock on the Nasdaq National Market, (vii) all travel, lodging and reasonable
living expenses incurred by the Company in connection with marketing, dealer and
other meetings attended by the Company and the Underwriters in marketing the
Shares, (viii) the costs and charges of the Company's transfer agent and
registrar and the cost of preparing the certificates for the Shares, and (ix)
all other costs and expenses incident to the performance of its obligations
hereunder not otherwise provided for in this Section; and (b) all out-of-pocket
expenses, including counsel fees, disbursements and expenses, incurred by the
Underwriters in connection with investigating, preparing to market and marketing
the Shares and proposing to purchase and purchasing the Shares under this
Agreement, will be borne and paid by the Company if the sale of the Shares
provided for herein is not consummated (i) by reason of the termination of this
Agreement by the Underwriters pursuant to Section 14(b)(ii) through (v) of this
Agreement or (ii) because of any failure or refusal on the part of the Company
or any Selling Shareholder to comply with the terms or fulfill any of the
conditions of this Agreement.
The provisions of this Section shall not affect any agreement that the
Company and the Selling Shareholders may have for the sharing of such costs and
expenses; provided, however, the Underwriters may deem the Company to be the
primary obligor with respect to all costs, fees, and expenses to be paid
hereunder by the Company and the Selling Shareholders.
7. Conditions of the Underwriters' Obligations. The respective obligations
of the Underwriters to purchase and pay for the Firm Shares shall be subject to
the accuracy of the representations and warranties of the Company herein as of
the date hereof and as of the Closing Date as if made on and as of the Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company and the Selling
Shareholders of all of their respective covenants and agreements hereunder and
to the following additional conditions:
21
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 5:30 P.M., Washington,
D.C. time, on the day following the date of this Agreement, or such later
time and date as shall have been consented to by the Representatives and
all filings required by Rule 424 and Rule 430A of the Securities Act Rules
shall have been made; no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of
the Company or the Underwriters, shall be contemplated by the Commission;
any request of the Commission for additional information (to be included
in the Registration Statement or the Final Prospectus or otherwise) shall
have been complied with to the Representatives' satisfaction; and the
NASD, upon review of the terms of the public offering of the Shares, shall
not have objected to such offering, such terms or the Underwriters'
participation in the same.
(b) No Representative shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective Prospectus
or Final Prospectus, or any amendment or any supplement thereto, contains
an untrue statement of fact which, in the Representatives' reasonable
judgment, is material, or omits to state a fact which, in the
Representatives' reasonable judgment, is material and is required to be
stated therein or necessary to make the statements therein not misleading
and the Company shall not have cured such untrue statement of fact or
omission.
(c) The Representatives shall have received an opinion, dated the
Closing Date, from Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇, P.A., counsel for
the Company, to the effect that:
(i) Each of the Company and the Corporate Subsidiaries has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own or lease its properties
and conduct its business as described in the Registration Statement,
each of the Company and the Corporate Subsidiaries is duly qualified
to transact business as a foreign corporation and in good standing
in those states where a failure to so qualify would have a material
adverse effect on the Company; and the outstanding shares of capital
stock of each of the Corporate Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable
and are owned by the Company or a Corporate Subsidiary; and, to the
best of such counsel's knowledge, the outstanding shares of capital
stock of each of the Subsidiaries is owned free and clear of all
liens, encumbrances and equities and claims, and no options,
warrants or other rights to purchase, agreements or other
obligations to issue or
22
other rights to convert any obligations into any shares of capital
stock or of ownership interests in the Corporate Subsidiaries are
outstanding.
(ii) As of the dates specified therein, the Company had
historically authorized and issued capital stock as set forth under
the caption "Capitalization" in the Final Prospectus. All of the
outstanding shares of Common Stock have been duly authorized and are
validly issued, fully paid and nonassessable, and the Shares to be
sold by the Company have been duly authorized, and upon issuance
thereof and payment therefor as provided herein, will be validly
issued, fully paid and nonassessable; none of the issued shares have
been issued in violation of or subject to any preemptive rights
provided for by law, any agreement known to such counsel or the
Company's charter. To such counsel's knowledge, the Company does not
have outstanding any options to purchase, or any rights or warrants
to subscribe for, or any securities or obligations convertible into,
or any contracts or commitments to issue or sell any shares of
capital stock, and there are no preemptive rights or other rights to
subscribe for or purchase any shares of the capital stock of the
Company, or any restriction upon the transfer of, the Shares
pursuant to the Company's charter or bylaws or any agreement or
other instrument known to such counsel to which the Company is a
party or by which it may be bound, except as described in the
Effective Prospectus and Final Prospectus. Neither the filing of the
Registration Statement nor the offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than
those which have been waived or satisfied, for or relating to the
registration of any Common Stock or any other securities of the
Company. The Underwriters will receive good and marketable title to
the Shares to be issued and delivered by the Company pursuant to
this Agreement, free and clear of all liens, encumbrances, claims,
security interests, restrictions, shareholders agreements, voting
trusts and the rights of any third party whatsoever. The capital
stock of the Company and the Shares conform to the description
thereof contained in the Final Prospectus. All offers and sales of
the Company's interests and securities prior to the date hereof were
made in reliance upon available exemptions from the registration
requirements of the Securities Act and the registration requirements
of applicable state securities or Blue Sky laws or, if not exempt,
properly registered in compliance with such laws.
(iii) The form of stock certificate to be used to evidence the
Common Stock will be in due and proper form and will comply with all
applicable legal requirements under the Tennessee Business
Corporation Act.
23
(iv) No consent, approval, authorization or order of any court
or governmental agency or body or third party is required for the
performance of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby, except such as
have been obtained under the Securities Act and such as may be
required by the NASD and under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
several Underwriters, as to which such counsel need not express an
opinion. The performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby
will not conflict with or result in a breach or violation by the
Company of any of the terms or provisions of, or constitute a
default by the Company under, any material indenture, mortgage, deed
of trust, loan agreement, lease or other agreement or instrument to
which the Company is a party or to which the Company or its
properties is subject, the charter or bylaws of the Company, any
statute, or any judgment, decree, order, rule or regulation of any
court or governmental agency or body applicable to the Company.
(v) The Company has full legal right and all 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 constitutes the valid and legally
binding obligation of the Company enforceable against the Company in
accordance with its terms.
(vi) Except as described in the Final Prospectus, there is not
pending or threatened, any action, suit, proceeding, inquiry or
investigation, to which the Company or any of the Subsidiaries are a
party, or to which the property of the Company or any of the
Subsidiaries are subject, before or brought by any court or
governmental agency or body, which, if determined adversely to the
Company or any of the Subsidiaries, could likely result in any
material adverse change in the business, financial position, net
worth or results of operations, or could materially adversely affect
the properties or assets, of the Company or any of the Subsidiaries.
(vii) No default exists, and no event has occurred which with
notice or after the lapse of time to cure or both, would constitute
a default, in the due performance and observance of any term,
covenant or condition of any material indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which either the Company or any of its Subsidiaries is a party or to
which their
24
respective properties are subject, or of the charter or bylaws of
the Company.
(viii) There are no contracts or documents of the Company
known to such counsel which are required to be filed as exhibits to
the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been so filed.
(ix) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(x) The Registration Statement and all post-effective
amendments thereto have become effective under the Securities Act,
and, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are threatened, pending or contemplated by the
Commission. All filings required by Rule 424 and Rule 430A of the
Rules and Regulations have been made; the Registration Statement,
the Effective Prospectus and Final Prospectus, and any amendments or
supplements thereto, as of their respective effective or issue
dates, complied as to form in all material respects with the
requirements of the Securities Act and the Rules and Regulations;
the descriptions in the Registration Statement, the Effective
Prospectus and the Final Prospectus of statutes, regulations, legal
and governmental proceedings, and contracts and other documents are
accurate in all material respects and present fairly in all material
respects the information purported to be summarized; and counsel
does not know of any pending or threatened legal or governmental
proceedings, statutes or regulations required to be described in the
Final Prospectus which are not described as required nor of any
contracts or documents of a character required to be described in
the Registration Statement or the Final Prospectus or to be filed as
exhibits to the Registration Statement which are not described and
filed as required.
(xi) To such counsel's knowledge in the course of their
representation, none of the Company or any of the Subsidiaries is in
violation of any material laws applicable to the Company or any of
the Subsidiaries or of any decree of any court or governmental
agency or body having jurisdiction over the Company or any of the
Subsidiaries.
(xii) The Company and each of the Subsidiaries have all
necessary permits (except where the failure to have such permits,
individually or in the aggregate, would not have a material adverse
effect on the business, operations or financial condition of the
Company
25
and the Subsidiaries taken as a whole), to own their respective
properties and to conduct their respective businesses as now being
conducted, and as described in the Registration Statement and
Prospectus.
(xiii) The descriptions of banking statutes and regulations in
the Prospectus have been reviewed by such counsel and fairly
summarize such statutes and regulations in all material respects.
(xiv) The execution and delivery of this Agreement and the
consummation of the transactions herein contemplated do not and will
not (a) breach, or result in a default under, any existing
obligation of the Company under any of the agreements of the Company
or any of its Subsidiaries filed as exhibits to the Registration
Statement or otherwise; (b) violate or conflict with any applicable
statute, rule or regulation or, to such counsel's knowledge any
judgment, decree or order of any court or governmental agency or
body (except that such counsel need not express an opinion as to
compliance with any disclosure requirement or any prohibition
against fraud or misrepresentation or as to whether performance of
the indemnification or contribution provisions of this Agreement
would be permitted); or (c) to such counsel's knowledge, result in
the creation or imposition or any lien, charge, claim or encumbrance
upon any property or asset of the Company or the Subsidiaries,
respectively.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of such
counsel which leads them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made (except that such counsel need
express no view as to financial statements, schedules and other financial or
statistical information included therein).
(d) The Representatives shall have received an opinion, dated the
Closing Date, of [FIRM] as counsel for the Selling Shareholders,
reasonably acceptable to the Representatives, to the effect that:
(i) This Agreement and the Custody Agreement and Power of
Attorney have been duly authorized (in the case of corporate or
partnership Selling Shareholders), executed and delivered by or on
behalf of each of the Selling Shareholders and constitute valid and
binding agreements of such Selling Shareholders enforceable in
accordance with their terms.
26
(ii) The sale of the Shares to be sold by each Selling
Shareholder hereunder and the compliance by such Selling Shareholder
with all of the provisions of this Agreement, the Custody Agreement
and the Power of Attorney and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any terms or provisions of, or constitute a
default under any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which such Selling Shareholder
is a party or by which such Selling Shareholder is bound or to which
any of the property or assets of such Selling Shareholder is
subject, or any statute, order, rule or regulation of any court or
governmental agency or body applicable to such Selling Shareholder
or the property of such Selling Shareholder.
(iii) No consent, approval, authorization or order of any
regulatory, administrative or other governmental body is required
for the consummation of the transactions contemplated by this
Agreement in connection with the Shares to be sold by each Selling
Shareholder hereunder, except which have been duly obtained and in
full force and effect, such as have been obtained under the
Securities Act and such as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of
such Shares by the Underwriters, as to which such counsel need
express no opinion.
(iv) Each of the Selling Shareholders has the full right,
power and authority to sell, transfer and deliver such Shares
pursuant to this Agreement. By delivery of a certificate or
certificates therefor, the Selling Shareholders will transfer to the
Underwriters valid title to such shares, free and clear of any
pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind.
The opinions to be rendered pursuant to paragraphs (c) and (d) may be
limited to federal law, and as to foreign and state law matters, to the laws of
the states or jurisdictions in which such counsel is admitted to practice. Such
counsel may rely upon opinions of other counsel in rendering such opinions
provided that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions.
(e) The Underwriters shall have received an opinion or opinions,
dated the Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, A Professional
Limited Liability Company, counsel for the Underwriters, with respect to
the Registration Statement and the Final Prospectus, and such other
related matters as the Underwriters may require, and the Company shall
have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
27
(f) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇ a
letter dated the date hereof and, at the Closing Date, a second letter
dated the Closing Date, in form and substance satisfactory to the
Representatives, stating that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the
Securities Act and the applicable Rules and Regulations, and containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information of the Company contained in the
Registration Statement and the Prospectus.
In the event that the letters to be delivered referred to above set forth
any such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that the Underwriters shall have determined,
after discussions with officers of Company responsible for financial and
accounting matters and with ▇▇▇▇▇ ▇▇▇▇▇▇ that such changes, decreases or
increases as are set forth in such letters do not reflect a material adverse
change in the total assets, shareholders' equity or long-term debt of Company as
compared with the amounts shown in the latest balance sheets of Company included
in the Final Prospectus, or a material adverse change in revenues or net income
of Company, in each case as compared with the corresponding period of the prior
year.
(g) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the
Chief Executive Officer and Chief Financial Officer of the Company, to the
effect that:
(i) the representations and warranties of the Company in
Section 1 of this Agreement are true and correct, as if made at and
as of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that
purpose have been initiated or are pending, or to their knowledge,
threatened under the Securities Act;
(iii) all filings required by Rule 424 and Rule 430A of the
Rules and Regulations have been made;
(iv) they have carefully examined the Registration Statement,
the Effective Prospectus and the Final Prospectus, and any
amendments or supplements thereto, and such documents do not include
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
28
statements therein not misleading in light of the circumstances
under which they were made; and
(v) since the effective date of the Registration Statement,
there has occurred no event required to be set forth in an amendment
or supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus which has not been so set forth.
(h) The representations and warranties of each Selling Shareholder
in Section 2 of this Agreement shall be true and correct as of the Closing
Date and such Selling Shareholders shall deliver to the Representatives a
certificate to that effect, dated the Closing Date, signed by such Selling
Shareholder or his or its duly appointed Attorney-in-fact.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, and except
as stated therein, the Company has not sustained any material loss or
interference with its business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from
any labor dispute or any court or governmental action, order or decree, or
become a party to or the subject of any litigation which is material to
the Company, nor shall there have been any material adverse change, or any
development involving a prospective material adverse change, in the
business, properties, key personnel, capitalization, prospects, net worth,
results of operations or condition (financial or other) of the Company,
which loss, interference, litigation or change, in the Representatives'
reasonable judgment shall render it inadvisable to commence or continue
the offering of the Shares at the offering price to the public set forth
on the cover page of the Prospectus or to proceed with the delivery of the
Shares.
(j) The Shares shall be listed on the Nasdaq National Market.
(k) The Representatives shall have received the Lockup Agreements.
All such opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory to the Representatives and their counsel. The Company
shall furnish to the Representatives such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representatives
shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for the
Option Shares shall be subject, in their discretion, to the conditions of this
Section 7, except that all references to the "Closing Date" shall be deemed to
refer to the Option Closing Date, if it shall be a date other than the Closing
Date.
29
8. Condition of the Company's and the Selling Shareholder's Obligations.
The obligations hereunder of the Company and the Selling Shareholders are
subject to the condition set forth in Section 7(a) hereof.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter within
the meaning of the Securities Act, against any losses, claims, damages or
liabilities to which such Underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based in whole or in part upon: (i) any inaccuracy in the
representations and warranties of the Company or the Selling Shareholders
contained herein; (ii) any failure of the Company or the Selling
Shareholders to perform their obligations hereunder or under law; (iii)
any untrue statement or alleged untrue statement of any material fact
contained in (A) the Registration Statement, any Preliminary Prospectus,
the Effective Prospectus or Final Prospectus, or any amendment or
supplement thereto, (B) any audio or visual materials supplied by the
Company expressly for use in connection with the marketing of the Shares,
including without limitation, slides, videos, films and tape recordings
(the "Marketing Materials") or (C) in any Blue Sky application or other
written information furnished by the Company or the Selling Shareholders
filed in any state or other jurisdiction in order to qualify any or all of
the Shares under the securities laws thereof (a "Blue Sky Application");
(iv) or the omission or alleged omission to state in the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or Final
Prospectus or any amendment or supplement thereto, any Marketing Materials
or Blue Sky Application a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (v) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating to in any manner to, the Shares or the
offering contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of or based
upon matters covered by clause (i), (ii), (iii) or (iv) above (provided
that the Company shall not be liable under this clause (v) to the extent
that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or willful
misconduct); and will reimburse each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such
Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss,
30
claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made
in the Registration Statement, the Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto, or
any Marketing Materials or Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the [third, fourth, fifth and eighth
paragraphs] under the caption "Underwriting" in any Preliminary Prospectus
and the Final Prospectus and the Effective Prospectus).
(b) The Selling Shareholders, severally and not jointly, agree to
indemnify and hold harmless each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, against
any losses, claims, damages or liabilities to which such Underwriter or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based in whole or in part
upon: (i) any inaccuracy in the representations and warranties of the
Company or such Selling Shareholder contained herein; (ii) any failure of
the Company or such Selling Shareholder to perform their obligations
hereunder or under law; (iii) any untrue statement or alleged untrue
statement of any material fact contained in (A) the Registration
Statement, any Preliminary Prospectus, the Effective Prospectus or Final
Prospectus, or any amendment or supplement thereto, (B) any Marketing
Materials or (C) in any Blue Sky Application furnished by the Company or
such Selling Shareholder; or (iv) the omission or alleged omission to
state the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or Final Prospectus or any amendment or supplement
thereto, any Marketing Materials or Blue Sky Application a material fact
required to be stated therein or necessary to make the statements therein
not misleading; or (v) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating to in
any manner to, the Shares or the offering contemplated hereby, and which
is included as part of or referred to in any loss, claim, damage,
liability or action arising out of or based upon matters covered by clause
(i), (ii), (iii) or (iv) above (provided that the Company shall not be
liable under this clause (v) to the extent that it is determined in a
final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct);and will reimburse
each Underwriter and each such controlling person for any legal or other
expenses reasonably incurred by such Underwriter or such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action as such
31
expenses are incurred; provided, however, that such Selling Shareholder
will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any untrue
statement or alleged statement or omission or alleged omission made in the
Registration Statement, the Preliminary Prospectus, the Effective
Prospectus or Final Prospectus, or any amendment or supplement thereto, or
any Marketing Materials or Blue Sky Application in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that the
only information so provided is the information included in the last
paragraph on the cover page and in the [third, fourth, fifth and eighth
paragraphs] under the caption "Underwriting" in any Preliminary Prospectus
and the Final Prospectus and the Effective Prospectus).
(c) Notwithstanding the foregoing provisions of Section 9(a) and
(b), the parties agree that the indemnification obligations of each
Selling Shareholder under this Section 9, with respect to any matter that
such Selling Shareholder and the Company are both required to indemnify
the Underwriters hereunder, shall be subject to the determination by the
Representatives, on behalf of the Underwriters, that, in the
Representatives' reasonable commercial judgment, the Company is or may be
unable to discharge fully its obligations to the Underwriters hereunder;
provided, however, that such Selling Shareholder's obligations shall (i)
be limited to such Selling Shareholder's proportion of the Firm Shares as
set forth on Schedule II, times the aggregate amount to which the
Underwriters are entitled to indemnification, and (ii) shall be liable in
any such case only to the extent of the total net proceeds (before
deducting expenses) received from the Underwriters by such Selling
Shareholder in connection with the sale of the Shares hereunder. To the
extent the Company is or may be able, in the Representatives' reasonable
commercial judgment, to discharge the Company's obligations to the
Underwriters with respect to any matter that the Company is required to
indemnify the Underwriters hereunder, the Underwriters shall to such
extent, first seek indemnification from the Company.
(d) Each Underwriter, will indemnify and hold harmless each of the
Selling Shareholders, the Company, each of its directors, each of the
Company's officers who signed the Registration Statement and each person,
if any, who controls the Company within the meaning of the Securities Act
against any losses, claims, damages or liabilities to which such Selling
Shareholders, the Company or any such director, officer or controlling
person may become subject, under the Securities Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, any Preliminary
32
Prospectus, the Effective Prospectus or Final Prospectus, or any amendment
or supplement thereto, any Marketing Materials or any Blue Sky
Application, or arise out of or are based upon the omission or the alleged
omission to state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus, or any amendment
or supplement thereto, any Marketing Materials or any Blue Sky Application
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein (it being understood that the only
information so provided is the information included in the last paragraph
on the cover page and in the [third, fourth, fifth and eighth paragraphs]
under the caption "Underwriting" in any Preliminary Prospectus and in the
Effective Prospectus and the Final Prospectus).
(e) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, including
governmental proceedings, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 9 notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party hereunder unless
the indemnifying party has been materially prejudiced thereby and in any
event shall not relieve it from liability otherwise than under this
Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein, and to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; and after notice from the
indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation except that
the indemnified party shall have the right to employ separate counsel if,
in the indemnified party's reasonable judgment, it is advisable for the
indemnified party to be represented by separate counsel, and in that event
the fees and expenses of separate counsel shall be paid by the
indemnifying party.
(f) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the
preceding part of this Section 9 is for any reason held to be unavailable
to the
33
Underwriters, the Company or the Selling Shareholders or is insufficient
to hold harmless an indemnified party, then the Company and the Selling
Shareholders shall contribute to the damages paid by the Underwriters, and
the Underwriters shall contribute to the damages paid by the Company and
the Selling Shareholders; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The amount of such
contribution shall (i) be in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriters on the other from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, be 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 and the
Selling Shareholders on the one hand and the Underwriters on the other
with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and the Selling Shareholders on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to
be in the same proportion as the total net proceeds from the offering of
the Shares purchased under this Agreement (before deducting expenses)
received by the Company and the Selling Shareholders, in the case of the
Company and the Selling Shareholders, and the total underwriting discounts
and commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, in the case of the Underwriters, bear to
the total gross proceeds from the offering of the Shares under this
Agreement, in each case as set forth in the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Selling Shareholders
and the Underwriters agree that it would not be equitable if the amount of
such contribution were determined by pro rata or per capita allocation
(even if the Underwriters were treated as one entity for such purpose).
Notwithstanding the foregoing, (i) no Underwriter or person controlling
such Underwriter shall be obligated to make contribution hereunder which
in the aggregate exceeds the underwriting discount applicable to the
Shares purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages which such Underwriter and its controlling
persons have otherwise been required to pay in respect of the same or any
similar claim and (ii) no Selling Shareholder shall be required to
contribute any amount in excess of the aggregate amount for which such
Selling Shareholder is obligated to
34
provide indemnification pursuant to Section 9(c). The Underwriters'
obligations and the Selling Shareholders' obligations to contribute
hereunder are several in proportion to their respective obligations and
not joint. For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as such Underwriters, and each
director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company
or a Selling Shareholder within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the Company
or the Selling Shareholders, as the case may be.
(g) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified
party is a party or is (or would be, if a claim were to be made against
such indemnified party) entitled to indemnity hereunder, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such action,
suit or proceeding.
10. Default of Underwriters. If any Underwriter defaults in its obligation
to purchase Shares hereunder and if the total number of Shares which such
defaulting Underwriter agreed but failed to purchase is ten percent or less of
the total number of Shares to be sold hereunder, the non-defaulting Underwriters
shall be obligated severally to purchase (in the respective proportions which
the number of Shares set forth opposite the name of each non-defaulting
Underwriter in Schedule I hereto bears to the total number of Shares set forth
opposite the names of all the non-defaulting Underwriters), the Shares which
such defaulting Underwriter or Underwriters agreed but failed to purchase. If
any Underwriter so defaults and the total number of Shares with respect to which
such default or defaults occur is more than ten percent of the total number of
Shares to be sold hereunder, and arrangements satisfactory to the other
Underwriters, the Company and the Selling Shareholders for the purchase of such
Shares by other persons (who may include the non-defaulting Underwriters) are
not made within 36 hours after such default, this Agreement, insofar as it
relates to the sale of the Shares, will terminate without liability on the part
of the non-defaulting Underwriters or the Company or the Selling Shareholders
except for (i) the provisions of Section 9 hereof, and (ii) the expenses to be
paid or reimbursed by the Company pursuant to Section 6. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10. Nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11. Default by the Selling Shareholders. If the Selling Shareholders shall
fail to sell and deliver the number of Firm Shares that the Selling Shareholders
are obligated to sell, the Representatives may, at their option, by notice to
the Company,
35
either (a) require the Company to sell and deliver such number of shares of
Common Stock as to which the Selling Shareholders have defaulted, or (b) elect
to purchase the Firm Shares and the Option Shares that the Company and the
non-defaulting Selling Shareholders have agreed to sell pursuant to this
Agreement.
In the event of a default under this Section that does not result in the
termination of this Agreement, the Representatives shall have the right to
postpone the First Closing Date or Option Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. No action
taken pursuant to this Section shall relieve the Company or the Selling
Shareholder so defaulting from liability, if any, in respect of such default.
12. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Selling
Shareholders, the Company or their officers and the Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (a) any
investigation made by or on behalf of the Company, any of its officers or its
directors, any Underwriter or any controlling person, (b) any termination of
this Agreement and (c) delivery of and payment for the Shares.
13. Effective Date. This Agreement shall become effective at whichever of
the following times shall first occur: (i) at 11:30 am Washington D.C. time, on
the next full business day following the date in which the Registration
Statement becomes effective or (ii) at such time after the Registration
Statement has become effective as the Representatives shall release the Firm
Shares for sale to the public; provided, however, that the provisions of
Sections 6, 9, 12, and 13 hereof shall at all times be effective. For purposes
of this Section 13, the Firm Shares shall be deemed to have been so released
upon the release by the Representatives for publication, at any time after the
Registration Statement has become effective, of any newspaper advertisement
relating to the Firm Shares or upon the release by the Representatives of
telegrams offering the Firm Shares for sale to securities dealers, whichever may
occur first.
14. Termination.
(a) The Company's obligations under this Agreement may be terminated
by the Company by notice to the Representatives (i) at any time before it
becomes effective in accordance with Section 13 hereof, or (ii) in the
event that the condition set forth in Section 8 shall not have been
satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in
accordance with Section 13 hereof; (ii) in the event that at or prior to
the
36
First Closing Date the Company or any Selling Shareholder shall have
failed, refused or been unable to perform any agreement on the part of the
Company or such Selling Shareholder to be performed hereunder or any other
condition to the obligations of the Underwriters hereunder is not
fulfilled; (iii) if at or prior to the Closing Date trading in securities
on the NYSE, the Nasdaq National Market, the American Stock Exchange or
the over-the-counter market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on either
of such exchanges or such market, or a banking moratorium shall have been
declared by Federal or state authorities; (iv) if at or prior to the
Closing Date trading in securities of the Company shall have been
suspended; or (v) if there shall have been such a material adverse change
in general economic, political or financial conditions or if the effect of
international conditions on the financial markets in the United States
shall be such as, in your reasonable judgment, makes it inadvisable to
commence or continue the offering of the Shares at the offering price to
the public set forth on the cover page of the Prospectus or to proceed
with the delivery of the Shares.
(c) Termination of this Agreement pursuant to this Section 14 shall
be without liability of any party to any other party other than as
provided in Sections 6 and 9 hereof.
15. Notices. All communications hereunder shall be in writing and, if sent
to any of the Underwriters, shall be mailed or delivered or telegraphed and
confirmed in writing to the Underwriters in care of ▇. ▇. ▇▇▇▇▇▇▇▇ & Co., ▇. ▇.
▇▇▇▇▇▇▇▇ Financial Center, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, or if sent to the Company shall be mailed,
delivered or telegraphed and confirmed in writing to the Company at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇, or if sent to the
Selling Shareholders shall be mailed, delivered or telegraphed and confirmed in
writing to _______________________________________________________ as
Attorney-in-Fact for the Selling Shareholders.
16. Miscellaneous. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and the Selling Shareholders their
respective successors and legal representatives. Nothing expressed or mentioned
in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Company, the Selling Shareholders and the
Underwriters and for the benefit of no other person except that (a) the
representations and warranties and indemnities of the Company and the Selling
Shareholder contained in this Agreement shall also be for the benefit of any
person or persons who control any Underwriter within the meaning of Section 15
of the Securities Act, and (b) the indemnities by the Underwriters shall also be
for the benefit of the directors of the
37
Company, officers of the Company who have signed the Registration Statement and
any person or persons who control the Company within the meaning of Section 15
of the Securities Act. No purchaser of Shares from any Underwriter will be
deemed a successor because of such purchase. The validity and interpretation of
this Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The Representatives hereby represent and warrant to the Company that
the Representative have authority to act hereunder on behalf of the
Underwriters, and any action hereunder taken by the Representatives shall be
binding upon all the Underwriters.
38
If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among the Company, each of the Selling Shareholders and each of the
Underwriters.
Very truly yours,
BANKFIRST CORPORATION
By: __________________________________
Title: __________________________________
SELLING SHAREHOLDERS
By: ____________________________________
Attorney-in-Fact for each of the
Selling Shareholders listed in
Schedule II hereto
Confirmed and accepted as of
the date first above written.
▇.▇. ▇▇▇▇▇▇▇▇ & CO., L.L.C.
By: _________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
By: _________________________
39
SCHEDULE I
UNDERWRITERS
Underwriter Number of Firm Shares to be Purchased
----------- -------------------------------------
▇.▇. ▇▇▇▇▇▇▇▇ & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
-------------------
Total
===================
40
SCHEDULE II
SELLING SHAREHOLDERS
Selling Shareholder Number of Shares to be Sold
------------------- ---------------------------
-------------------
Total
===================
41
SCHEDULE III
SUBSIDIARIES
42
