UNITED COMMUNITY BANKS, INC.
Common Stock
BROKER-DEALER AGREEMENT
March 31, 2000
Wachovia Securities, Inc.
IJL Financial Center
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Dear Sirs:
SECTION 1. Broker-Dealer Agreement. United Community Banks, Inc., a
Georgia corporation (the "Company") proposes to issue, offer and sell a minimum
of 350,000 shares and a maximum of 450,000 shares of its authorized but unissued
Common Stock, par value $1.00 per share (the "Common Shares") and intends to
offer a portion of those securities in the State of North Carolina. In order
that its offering meets the requirements of Chapter 78A of the North Carolina
General Statutes ("Chapter 78A"), the Company must obtain the sponsorship of its
offering by a North Carolina registered dealer.
Accordingly, the Company hereby appoints Wachovia Securities, Inc.
("WSI") as a sponsoring dealer and WSI accepts appointment under the provisions
of Section 18 NCAC 6.1305 of the North Carolina Administrative Code. In that
capacity, WSI will act as a sponsoring dealer for the account of the Company in
connection with a public offering of the Common Shares in the State of North
Carolina after the effective date of the registration statement hereinafter
referred to. WSI will act as dealer on behalf of the Company in connection with
effecting the offer and sale of the Common Shares in North Carolina to residents
of North Carolina. In North Carolina, the sales of the Common Shares are to be
made for the account of the Company at a price of $38.00 per share, unless and
until the Company establishes another price. WSI has not and will not be
involved with determining the price of the shares to be sold in the public
offering and shall have no financial commitment to purchase any of the Common
Shares.
SECTION 2. Representations and Warranties of the Company. The Company
hereby represents and warrants to WSI that:
(a) A registration statement on Form S-3 (the "Registration
Statement") has been or will be filed with the Securities and Exchange
Commission (the "Commission") with respect to the Common Shares and has
been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Act"), and the Commission's
rules and regulations (the "Rules and Regulations"). The Company has
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prepared and has filed or proposes to file prior to the effective date
of such registration statement an amendment or amendments to such
registration statement, which amendment or amendments have been or will
be similarly prepared. There have been delivered to WSI a copy of such
registration statement and amendments, as to which the prospectus (the
"Prospectus") is a part, together with a copy of each exhibit filed
therewith. The Company will next file with the Commission one of the
following: (i) prior to effectiveness of such registration statement, a
further amendment thereto, including the form of final Prospectus, or
(ii) a final Prospectus in accordance with Rule 424(b) of the Rules and
Regulations.
(b) The Commission has not issued any order preventing or
suspending the use of the Prospectus and the Prospectus conforms in all
material respects to the requirements of the Act and the Rules and
Regulations and, as of its date, does not include any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading; and at the time the Registration Statement
becomes effective, and at all times subsequent thereto up to and
including each Closing Date hereinafter mentioned, the Registration
Statement and the Prospectus, and any amendments or supplements
thereto, will contain all material statements and information required
to be included therein by the Act and the Rules and Regulations and
will in all material respects conform to the requirements of the Act
and the Rules and Regulations, and neither the Registration Statement
nor the Prospectus, nor any amendment or supplement thereto, will
include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, no representation
or warranty contained in this subsection 2(b) shall be applicable to
information contained in or omitted from the Registration Statement,
the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by or
on behalf of WSI, specifically for use in the preparation thereof.
(c) The Company is current in all filings of reports,
financial statements and schedule requirements to be made with the
Commission under the Securities Exchange Act of 1934 (the "Exchange
Act").
(d) The Company and each of United Community Bank ("United"),
Carolina Community Bank ("Carolina"), Peoples Bank of Xxxxxx County
("Xxxxxx"), Towns County Bank ("Towns"), White County Bank ("White"),
First Xxxxxxx Bank and Trust ("First Xxxxxxx"), Bank of Adairsville
("Adairsville"), and 1st Xxxxx Bank ("Xxxxx"), (United, Carolina,
Fannin, Towns, White, First Xxxxxxx, Adairsville and Xxxxx are
collectively referred to herein as the "Subsidiaries") have been duly
organized and are validly existing and in good standing under the laws
of their respective jurisdictions of organization, with full power and
authority to own and lease their properties and conduct their
respective businesses as described in the Prospectus; except as
disclosed in the Prospectus and the financial statements of the
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Company, the Company, directly or indirectly, owns all of the
outstanding capital stock of its Subsidiaries free and clear of all
claims, liens, charges and encumbrances; the Company and each of its
Subsidiaries are in possession of and operating in compliance with all
banking, insurance and other applicable approvals, authorizations,
licenses, permits, consents, certificates and orders material to the
conduct of their respective businesses, all of which are valid and in
full force and effect. The deposits in each of the Company's banking
subsidiaries are insured by the Federal Deposit Insurance Corporation.
(e) The Company has authorized and outstanding capital stock
as set forth under the heading "Capitalization" in the Prospectus; the
issued and outstanding Common Shares have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued in
compliance with all federal and state securities laws, were not issued
in violation of or subject to any preemptive rights or other rights to
subscribe for or purchase securities, and conform to the description
thereof contained in the Prospectus. All issued and outstanding shares
of capital stock of each Subsidiary have been duly authorized and
validly issued, are fully paid and nonassessable and are owned directly
or indirectly by the Company. Except as disclosed in or contemplated by
the Prospectus and the financial statements of the Company and the
related notes thereto included in the Prospectus, neither the Company
nor any Subsidiary has outstanding any options to purchase, or any
preemptive rights or other rights to subscribe for or to purchase, any
securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock, or any such
options, rights, convertible securities or obligations. The description
of the Company's stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted and exercised
thereunder, set forth in the Prospectus accurately and fairly presents
the information required to be shown with respect to such plans,
arrangements, options and rights.
(f) The Common Shares to be sold by the Company have been duly
authorized and, when issued, delivered and paid for in the manner set
forth in this Agreement, will be duly authorized, validly issued, fully
paid and nonassessable, and will conform to the description thereof
contained in the Prospectus. No preemptive rights or other rights to
subscribe for or purchase exist with respect to the issuance and sale
of the Common Shares by the Company pursuant to this Agreement. No
shareholder of the Company has any right which has not been waived to
require the Company to register the sale of any share owned by such
shareholder under the Act in the public offering contemplated by this
Agreement. No further approval or authority of the shareholders or the
Board of Directors of the Company will be required for the issuance and
sale of the Common Shares to be sold by the Company as contemplated
herein.
(g) The Company has full legal right, power and authority to
enter into this Agreement and perform the transactions contemplated
hereby. This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding obligation of the
Company in accordance with its terms, except to the extent
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganization or other laws affecting the rights of creditors
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generally and by principles of equity, whether considered at law or
equity. The making and performance of this Agreement by the Company and
the consummation of the transactions herein contemplated will not
violate any provisions of the articles of incorporation or bylaws, or
other organizational documents, of the Company and will not conflict
with, result in the breach or violation of, or constitute, either by
itself or upon notice or the passage of time or both, a default under
any agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company is a party
or by which the Company or any of its properties may be bound or
affected, any statute or any authorization, judgment, decree, order,
rule or regulation of any court or any regulatory body, administrative
agency or other governmental body applicable to the Company or any of
its properties. No consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental
body is required for the execution and delivery of this Agreement or
the consummation of the transactions contemplated by this Agreement,
except for compliance with the Act and Blue Sky securities laws
applicable to the public offering of the Common Shares by the Company.
(h) Xxxxxx Xxxxxx Xxxxx, LLP, who have expressed their opinion
with respect to the financial statements and schedules filed with the
Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, or incorporated by
reference therein, and are independent accountants as required by the
Act and the Rules and Regulations.
(i) The combined financial statements and schedules of the
Company and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company as of the respective dates of such financial statements and
schedules, and the results of operations and changes in financial
position of the Company for the respective periods covered thereby.
Such statements, schedules and related notes have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis as certified by Xxxxxx Xxxxxx Xxxxx, LLP. No other
financial statements or schedules are required to be included in the
Registration Statement. The selected financial data set forth in the
Prospectus under the captions "Capitalization" and "Pro Forma
Confidential Financial Statements" fairly present the information set
forth therein on the basis stated in the Registration Statement. The
pro forma financial information (including the related notes) included
in the Prospectus complies as to form in all material respects to the
applicable accounting requirements of the Act and the Rules and
Regulations, and management of the Company believes that the
assumptions underlying the pro forma adjustments are reasonable. Such
pro forma adjustments have been properly applied to the historical
amounts in the compilation of the information and such information
fairly represents with respect to the Company the financial position,
results of operations and other information purported to be shown
therein at the respective dates and for the respective periods
specified.
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(j) The Company has disclosed in the Registration Statement
and Prospectus all information it is required to disclose therein, and
such Registration Statement and Prospectus are true and correct in
every material respect and do not fail to disclose any information
which if not disclosed would cause the Registration Statement and/or
Prospectus to be materially misleading in any respect.
(k) The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted
only in accordance with management's general or specific authorization,
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
SECTION 3. Representations and Warranties of WSI. WSI hereby represents
and warrants to the Company that:
(a) The information set forth in the Prospectus that was
furnished to the Company by and on behalf of WSI for use in connection
with the preparation of the Registration Statement and the Prospectus
is correct in all material respects;
(b) WSI is registered as a dealer under the requirements of
Chapter 78A; and
(c) WSI will make all necessary filings with the National
Association of Securities Dealers, Inc. (the "NASD") in connection with
its services provided hereunder.
SECTION 4. Covenants of the Company. The Company covenants and
agrees that:
(a) The Company will use its best efforts to cause the
Registration Statement and any amendment thereof, if not effective at
the time and date that this Agreement is executed and delivered by the
parties hereto, to become effective. WSI will have the opportunity to
review and approve the Registration Statement and any amendment
thereto. The Company will promptly advise WSI in writing (i) of the
receipt of any comments of the Commission, (ii) of any request of the
Commission for amendment of or supplement to the Registration Statement
(either before or after it becomes effective) or the Prospectus or for
additional information, (iii) when the Registration Statement shall
have become effective, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the institution of any proceedings for that purpose. If
the Commission shall enter any such stop order at any time, the Company
will use its best efforts to obtain the lifting of such order at the
earliest possible moment. The Company will not file any amendment or
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supplement to the Registration Statement (either before or after it
becomes effective) or the Prospectus of which WSI has not been
furnished with a copy a reasonable time prior to such filing or to
which WSI reasonably objects or which is not in compliance with the Act
and the Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon WSI's request, any amendment or supplements to the
Registration Statement or the Prospectus which in WSI's judgment may be
necessary or advisable to enable WSI to continue the distribution of
the Common Shares, and will use its best efforts to cause the same to
become effective as promptly as possible. In addition, the Company will
assist WSI in connection with WSI's filings with the NASD. The Company
covenants that it will not commence the offering until such time as WSI
has received any required approvals from the NASD.
(c) If at any time within the nine-month period referred to in
Section 10(a)(3) of the Act during which a prospectus relating to the
Common Shares is required to be delivered under the Act any event
occurs, as a result of which the Prospectus, including any amendments
or supplements, would include an 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 not misleading, or if it is
necessary at any time to amend the Prospectus, including any amendments
or supplements, to comply with the Act or the Rules and Regulations,
the Company will promptly advise WSI thereof and will promptly prepare
and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance and will use
its best efforts to cause the same to become effective as soon as
possible; and, in case WSI is required to deliver a prospectus after
such nine-month period, the Company upon request, but at the expense of
WSI, will promptly prepare such amendment or amendments to the
Registration Statement and such Prospectus or Prospectuses as may be
necessary to permit compliance with the requirements of Section
10(a)(3) of the Act.
(d) The Company will timely file such reports pursuant to the
Exchange Act as are necessary in order to make generally available to
its security holders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the Act.
(e) During such period as a prospectus is required by law to
be delivered in connection with sales by WSI, the Company, at its
expense, but only for the nine-month period referred to in Section
10(a)(3) of the Act, will furnish to WSI or mail to the order of WSI
copies of the Registration Statement and the Prospectus and all
amendments and supplements to any such documents, in each case as soon
as available and in such quantities as WSI may request, for the
purposes contemplated by the Act.
(f) The Company shall qualify or register the Common Shares
for sale under (or obtain exemptions from the application of) the Blue
Sky securities law of North Carolina, will comply with such law and
will continue such qualification, registration and exemption in effect
so long as reasonably required for the distribution of the Common
Shares. The Company will advise WSI promptly of the suspension of the
qualification or registration of (or any such exemption relating to)
the Common Shares for offering, sale or trading in any jurisdiction or
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any initiation or threat of any proceeding for any such purpose, and in
the event of the issuance of any order suspending such qualification,
registration or exemption, the Company, with WSI's cooperation, will
use its best efforts to obtain the withdrawal thereof.
(g) The Company will apply the net proceeds of the sale of the
Common Shares sold by it substantially in accordance with its
statements under the caption "Use of Proceeds" in the Prospectus.
WSI may, in its sole discretion, waive in writing the performance by
the Company of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION 5. Payment of Fees and Expenses.
(a) The Company will pay to WSI at the closing of the offering
a fee of $40,000 for WSI's services performed hereunder; and
(b) Whether or not the transactions contemplated hereunder are
consummated or this Agreement becomes effective or is terminated, the
Company agrees to pay all costs, fees and expenses incurred in
connection with the performance of its obligations hereunder and in
connection with the transactions contemplated hereby and all reasonable
fees and expenses of WSI, including reasonable fees and disbursements
of WSI's counsel.
(c) The parties agree that, pursuant to clauses (a) and (b)
above, if an offering is not consummated in accordance with the terms
of this agreement, WSI will only be entitled to be reimbursed its
actual out of pocket expenses.
SECTION 6. Effectiveness of Registration Statement. WSI and the Company
will use their best efforts to cause the Registration Statement to become
effective, to prevent the issuance of any stop order suspending the
effectiveness of the Registration Statement and, if such stop order be issued,
to obtain as soon as possible the lifting thereof.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless WSI
against any losses, claims, damages or liabilities to which WSI 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: (i) any untrue statement or alleged
untrue statement made by the Company in Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue statement of any material
fact contained in (A) the Registration Statement or any amendment
thereto, or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application"); or (iii)
the omission or alleged omission to state in the Registration Statement
or any amendment thereto or any Application, a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse WSI for any legal or other expenses
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reasonably incurred by WSI in connection with investigating, defending
against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that
the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based
upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment
thereto or any Application in reliance upon and in conformity with
written information furnished to the Company by WSI expressly for
inclusion in the Prospectus beneath the heading "The Offering". The
Company will not, without the prior written consent of WSI, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of
action or portion thereof) in respect of which indemnification may be
sought hereunder (whether or not WSI is a party to such claim, action,
suit or proceeding), unless such settlement, compromise or consent
includes an unconditional release of WSI from all liability arising out
of such claim, action, suit or proceeding or related cause of action or
portion thereof.
(b) WSI agrees to indemnify and hold harmless the Company and
its officers, directors, agents, representatives and affiliates against
any losses, claims, damages or liabilities to which the Company or its
officers, directors, agents, representatives and affiliates 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
or any amendment thereto or any Application or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by WSI
expressly for inclusion in the Prospectus beneath the heading "The
Offering"; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action.
(c) Promptly after receipt by an indemnified party under
subsection (a) and (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party); provided, however, that if the defendants in
any such action included the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
indemnified party and such indemnified party shall have the right to
select separate counsel to defend such action on behalf of such
indemnified party. After such notice from the indemnifying party to
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such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend
such action, the indemnifying party will not be liable to such
indemnified party under this Section 7 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless
(i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances, which
separate counsel shall be designated by WSI in the case of indemnity
arising under paragraph (a) of this Section 7) or (ii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Nothing in this Section
7(c) shall preclude an indemnified party from participating at its own
expense in the defense of any such action so assumed by the
indemnifying party.
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and WSI on the other from the offering
of the Common Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and WSI on
the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and WSI on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total fees received by WSI. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company on the one hand and WSI on the other and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and WSI agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
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subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this
subsection (d), WSI shall not be required to contribute any amount in
excess of the fees described in Section 1 hereto. 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.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls WSI within the meaning of the Securities Act; and
the obligations of WSI under this Section 7 shall be in addition to any
liability which WSI may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of
the Securities Act.
SECTION 8. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice
to WSI or by WSI by notice to the Company at any time prior to the time
this Agreement shall become effective as to all its provisions, and any
such termination shall be without liability on the part of the Company
to WSI (except for the fees and expenses to be paid or reimbursed by
the Company, pursuant to Sections 5 and 7 hereof and except to the
extent provided in Section 9 hereof) or of WSI to the Company (except
for the expenses to be paid or reimbursed by WSI, pursuant to Section 7
hereof and except to the extent provided in Section 9 hereof).
(b) This Agreement may also be terminated by WSI by notice to
the Company (i) if any adverse event shall have occurred or shall exist
which makes untrue or incorrect in any material respect any statement
or information contained in the Registration Statement or Prospectus or
which is not reflected in the Registration Statement or Prospectus but
should be reflected therein in order to make the statements or
information contained therein not misleading in any material respect,
or (ii) if there shall be any action, suit or proceeding pending or
threatened; or there shall have been any development or prospective
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development involving particularly the business or properties or
securities of the Company or any of its Subsidiaries or the
transactions contemplated by this Agreement which, in the reasonable
judgment of WSI, may materially and adversely affect the Company's
business or earnings and makes it impracticable or inadvisable to offer
or sell the Common Shares. Any termination pursuant to this subsection
(b) shall be without liability on the part of WSI to the Company or on
the part of the Company to WSI (except for the fees and expenses to be
paid or reimbursed by the Company pursuant to Sections 5 and 7 hereof
and except to the extent provided in Section 9 hereof).
SECTION 9. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of the Company's officers and of WSI set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of WSI, the Company, or any of its or
their partners, officers or directors or any controlling person, as the case may
be, and will survive delivery of and payment for the Common Shares sold
hereunder and any termination of this Agreement.
SECTION 10. Notices. All communications hereunder shall be in writing
and, if sent to WSI shall be mailed, delivered or telegraphed and confirmed to
Wachovia Securities, Inc., IJL Financial Center, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxxxxxxxx, Xxxxx Xxxxxxxx, Attention: Xxxxx X. Xxxx, Jr., with a copy to
Smith, Helms, Mulliss & Xxxxx, LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx, 00000, Attention: Xxxx X. Xxxxxxxx, Xx.; and if sent to the Company
shall be mailed, delivered or telegraphed and confirmed to the Company at X.X.
Xxx 000, 00 Xxxxxxx 000, Xxxxxxxxxxx, Xxxxxxx 00000, with a copy to Xxxxxxxxxx
Xxxxxxxx LLP, Suite 2800, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: X. Xxxxxxxxx Xxxx. The Company or WSI may change the address for
receipt of communications hereunder by giving notice to the others.
SECTION 11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto, and to the benefit of the officers and
directors and controlling persons referred to in Section 7, and in each case
their respective successors, personal representatives and assigns, and no other
person will have any right or obligation hereunder. No such assignment shall
relieve any party of its obligations hereunder. The term "successors" shall not
include any purchaser of the Common Shares as such from WSI merely by reason of
such purchase.
SECTION 12. Partial Unenforceability. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall
not affect the validity or enforceability of any other Section, paragraph or
provision hereof. If any Section, paragraph or provision of this Agreement is
for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
SECTION 13. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws pertaining to
conflicts of laws) of the State of North Carolina.
11
SECTION 16. General. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company.
If the foregoing is in accordance with WSI's understanding of our
agreement, kindly sign and return to us the enclosed copies hereof, whereupon it
will become a binding agreement among the Company and WSI, all in accordance
with its terms.
Very truly yours,
UNITED COMMUNITY BANKS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Controller
WACHOVIA SECURITIES, INC.
By: /s/ Xxx X. Xxxx, Jr.
Name: Xxx X. Xxxx, Jr.
Title:
