UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report: February 13, 1998
CAROLINA FIRST CORPORATION
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(Exact name of registrant as specified in its charter)
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South Carolina 0-15083 57-0824914
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(State of other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification Number)
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102 South Main Street, Greenville, South Carolina 29601
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (864) 255-7900
The Exhibit Index appears on page 4 hereof.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) FINANCIAL STATEMENTS OF THE BUSINESSES ACQUIRED. Not Applicable
(b) PRO FORMA FINANCIAL INFORMATION. Not Applicable
(c) EXHIBITS.
99.1 Form of Purchase Agreement utilized in the Offering.
99.2 Placement Agency Agreement between Carolina First
Corporation and Kelton International Limited.
99.3 Press Release. Incorporated by reference to Exhibit
99.1 to the Company's Current Report on Form 8-K
dated February 13, 1998.
ITEM 9. OTHER EVENTS
On February 13, 1998, the Company consummated the sale (the
"Offering") of 2,000,000 shares (the "Common Stock") at a price per
share of $20.50.
Kelton International Limited served as placement agent (the
"Placement Agent") for the Offering. The Shares were offered to a
limited number of investors who were not "U.S. persons" as that term
is defined in Regulation S ("Regulation S") promulgated pursuant to
the Securities Act of 1933 (the "Securities Act").
The Company paid an underwriting discount of $0.82 per share,
for an aggregate underwriting discount of $1,640,000. The Placement
Agent will also be reimbursed for certain expenses, up to a maximum of
$120,000.
The Offering was exempt from registration under the Securities
Act by virtue of compliance with Regulation S. The Company, the
Placement Agent and the purchasers of the Shares (the "Purchasers")
executed agreements pursuant to which they agreed, among other things,
to comply with the provisions of Regulation S. Without limiting the
foregoing, the Company agreed (a) to offer and sell the Shares to the
Purchasers only in an "offshore transaction" (as defined in Regulation
S), (b) not to engage with respect to the Shares in any "directed
selling efforts" (as defined in Regulation S) in or directed toward the
United States, (c) to comply with all "offering restrictions" (as
defined in Regulation S) in respect of the Shares, (d) not to deliver
the Private Placement Memorandum (used in the Offering) or any revision
or amendment thereof or supplement thereto to any "U.S. person" (as
defined in Regulation S) (other than its professional advisers), (e) not
to make any offers or sales of any of the Shares or any interest therein
in the United States or to, or for the account or benefit of, any "U.S.
person" (as defined in Regulation S), and (f) not to make any sales of
any of the Shares or any interest therein to any person other than the
Purchasers.
Under applicable agreements between the Company and the
Purchasers, the Company has agreed to file a registration statement on
Form S-3 with respect to Shares within 10 days of February 13, 1998,
registering the resale of such Shares in the United States.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
CAROLINA FIRST CORPORATION
February 23, 1998 By: /s/ William S. Hummers III
--------------------------
William S. Hummers III
Executive Vice President
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EXHIBIT INDEX
EXHIBIT
99.1 Form of Purchase Agreement utilized in the Offering.
99.2 Placement Agency Agreement between Carolina First Corporation
and Kelton International Limited.
99.3 Press Release. Incorporated by reference to Exhibit 99.1 to the
Company's Current Report on Form 8-K dated February 13, 1998.
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EXHIBIT 99.1
CAROLINA FIRST CORPORATION
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of the 2nd day of February,
1998 by and between the purchaser whose name and address are shown on
the signature page to this Purchase Agreement (the "Purchaser") and
CAROLINA FIRST CORPORATION, a South Carolina corporation, with its
principal offices at 102 S. Main Street, Greenville, South Carolina
29601, United States of America (the "Company").
WHEREAS, the Company is offering to sell up to 2,000,000 shares
(the "Shares") of its common stock, par value $1.00 per share (the
"Common Stock") in a placement arranged by Kelton International Limited
("Kelton"), as placement agent;
WHEREAS, the Shares are being offered and sold in reliance upon
and in conformity with an exemption from the registration requirements
of the United States Securities Act of 1933, as amended (the "Securities
Act") pursuant to Regulation S under the Securities Act ("Regulation
S");
WHEREAS, the Company wishes to offer and sell to Purchaser, and
Purchaser wishes to buy from the Company, the number of Shares set out
in the Allocation Schedule at the end of this Purchase Agreement (the
"Allocation Schedule") for delivery in accordance with this Purchase
Agreement; and
WHEREAS, the Company intends to offer and sell Shares to other
investors (together with Purchaser, the "Purchasers") pursuant to
separate substantially identical purchase agreements (together with this
Purchase Agreement, the "Purchase Agreements").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Purchase Agreement, the undersigned agree as
follows:
1. Agreement to Sell and Purchase the Shares.
1.1 Subject to the terms and conditions contained in
this Purchase Agreement and the Allocation Schedule, the Company agrees
to issue and sell to Purchaser, and Purchaser agrees to buy from the
Company, on the date set out in the Allocation Schedule or on such other
date as shall be mutually agreed upon by the Company and Kelton (the
"Closing Date"), the aggregate number of Shares indicated on the
Allocation Schedule (the "Designated Shares") at the price per
Designated Share indicated in the Allocation Schedule. Purchaser shall
pay to the Company for value on the date set out on the Allocation
Schedule (the "Value Date") the aggregate amount set out in the
Allocation Schedule (the "Purchase Price").
1.2 Payment of the Purchase Price for the Designated
Shares shall be made by Purchaser to the Company by wire transfer of
immediately available funds in United States dollars to the account set
out in the Allocation Schedule. PURCHASER MUST INSTRUCT ITS PAYING BANK
PRIOR TO THE VALUE DATE TO WIRE FUNDS FOR VALUE ON OR BEFORE THE VALUE
DATE, IN ORDER TO HAVE THE PURCHASE PRICE RECEIVED INTO THE ABOVE
ACCOUNT IN TIME FOR THE CLOSING.
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1.3 The completion of the sale and purchase of the
Shares (the "Closing") shall take place at the offices of Kelton at 35
Curzon Street, London W1Y 7AE at 4:00 p.m. local time on the Closing
Date. At the Closing, against payment of the Purchase Price to the
Company, the Company shall deliver to Kelton, for the account of
Purchaser, a receipt from Carolina First Bank indicating the Company's
deposit for the account of Purchaser of one or more stock certificates
representing the Designated Shares registered in the name of Purchaser
or its nominee unless Purchaser shall have notified Kelton and the
Company that Purchaser or its representative will take delivery of such
stock certificates representing the Designated Shares.
1.4 The Company and Purchaser agree that the
Allocation Schedule is an integral part of this Purchase Agreement. All
references to this Purchase Agreement shall include a reference to the
Allocation Schedule unless the context expressly requires otherwise.
1.5 In the event of any change in the issued and
outstanding Common Stock of the Company by reason of stock dividends,
split-up or combination of the Common Stock, reclassification of the
capital stock of the Company or recapitalization of the Company which
occurs on or before the Closing, the number of shares of Common Stock to
be delivered to Purchaser at the Closing and the Purchase Price therefor
shall be appropriately adjusted. In addition, in the event that any cash
dividends on the Common Stock of the Company shall be payable to
shareholders of record as of a record date that falls on any date within
the period on and from the time of execution of this Purchase Agreement
or the Allocation Schedule to and including the Closing Date, the price
per Designated Share payable by Purchaser shall be reduced by the amount
of such cash dividend per share of Common Stock.
1.6 The obligation of Purchaser to purchase the Designated
Shares at the Closing shall be conditional upon the delivery by the Company to
Kelton, on behalf of all the Purchasers, of:
1.6.1 a written opinion of Wyche, Burgess, Freeman &
Parham, P.A. of South Carolina, United States counsel
to the Company, addressed to all of the Purchasers in
substantially the form set out in the Private
Placement Memorandum (as defined below) dated the
Closing Date, with such changes as may be agreed by
Kelton on behalf of the Purchasers; and
1.6.2 to the extent that the Closing Date shall be a
date other than the date of this Purchase Agreement, a
certificate of an officer of the Company as to the
correctness in all material respects of the representa
tions and warranties of the Company contained in
section 4 hereof as of the Closing Date.
2. Certain Agreements of the Company. The Company hereby
covenants and agrees with Purchaser as follows:
2.1 Prior to the execution of this Purchase Agreement,
the Company has furnished or will furnish to Purchaser the following:
2.1.1 a preliminary private placement memorandum dated
January 20, 1998, and supplement no. 1 thereto dated
January 22, 1998, and a private placement memorandum
dated January 27, 1998 with such further revisions,
amendments and supplements thereto as the Company
shall determine to be necessary or appropriate
(collectively, the "Private Placement Memorandum");
and
2.1.2 a copy of the Company's Annual Report on Form
10-K for the year ended December 31, 1996, the
Company's definitive proxy statement dated March 21,
1997 for the annual meeting of stockholders held on
May 8, 1997, the Company's Quarterly Report on Form
10-Q for the three month
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period ended September 30, 1997, and the Company's
definitive proxy statement/prospectus from the
Registration Statement dated October 10, 1997, as
amended, (collectively, the "SEC Documents"), each
filed with the United States Securities and Exchange
Commission (the "Commission") pursuant to the United
States Securities Exchange Act of 1934, as amended
(the "Exchange Act").
2.2 The Company will make available to Purchaser prior
to the Closing Date the opportunity to ask questions and receive answers
concerning the terms and conditions of the private placement of the
Shares and to obtain any additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy of the information furnished in
accordance herewith.
2.3 Within three (3) business days after the "Delivery
Date," which will be the date of the first to occur of (a) the
effectiveness of the Registration Statement (as defined in section 3.1
below) or (b) the expiration of the Restricted Period (as defined in
section 5.5 hereof) or at any time thereafter, the Company will deliver
to Purchaser or its nominee who is acting as custodian therefor or any
subsequent holder who has received a stock certificate representing the
Designated Shares which bears the legend described in section 5.9 hereof
(the "Legended Stock Certificate"), without cost to such Purchaser or
subsequent holder, a substitute stock certificate without the
restrictive legend described in section 5.9 hereof. The Company shall be
required to deliver such substitute stock certificate only upon
surrender of the Legended Stock Certificate which, in the case of any
holder subsequent to Purchaser, must be duly endorsed for transfer or
surrender. As and from such time, (i) each stock certificate
representing any of the Shares shall be free of any type of restrictive
legend, including but not limited to, the legend set out in section 5.9
hereof, and (ii) subject to the provisions of section 5.6 hereof, the
Shares represented by each such stock certificate shall not be subject
to any "stop transfer" or similar order at Reliance Trust Company of
Atlanta, Georgia, the transfer agent for the Common Stock, or any
successor transfer agent thereto (the "Transfer Agent"). As and from
such time, the Designated Shares shall be included in the shares of
Common Stock of the Company listed for trading on The Nasdaq Stock
Market.
3. Registration of the Shares; Procedures and Expenses.
3.1 As soon as practicable after the Closing (and in
no case later than ten (10) days after the Closing Date), the Company
will prepare and file with the Commission a registration statement on
Form S-3 (or such other form as may be available) (the "Registration
Statement") with respect to the Shares, providing for the sale of the
Shares by the Purchasers from time to time during the period provided
for in section 3.2(b) hereof in permitted public sales or in privately
negotiated transactions.
3.2 (a) The Company will use its best efforts to cause
the Registration Statement to become effective as soon as reasonably
practicable after the date of filing provided the Company has timely
received from Kelton the information regarding the Purchasers necessary
to complete the Registration Statement for filing, and, upon such
effectiveness, the Company will cause the Registration Statement to
remain effective for the period provided for in section 3.2(b) hereof.
(b) Subject to section 3.2(a) hereof, the Company
will prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith and any other documents as may be necessary to keep
the Registration Statement effective and current until all the Shares
have been sold pursuant thereto by the Purchasers or until ninety (90)
days after the date on which the Registration Statement is declared
effective, whichever is earlier.
3.3 Notwithstanding the foregoing in sections 3.1 and
3.2 hereof, the Company may withhold efforts to cause the Registration
Statement to become effective, if the Company determines in good faith
that such
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registration might (a) interfere with or affect the negotiation or
completion of any transaction that is being contemplated by the Company
(whether or not a final decision has been made to undertake such
transaction) at the time the right to delay is exercised, or (b) involve
initial or continuing disclosure obligations that might not be in the
best interest of the Company. If, after the Registration Statement
becomes effective, the Company advises the Purchasers that the Company
considers it appropriate for the Registration Statement to be amended,
the Purchasers shall suspend any further sales of their Shares until the
Company advises them that the Registration Statement has been amended.
Notwithstanding the foregoing, the Company shall not so delay, withhold
or cause such suspension for more than an aggregate of 20 days in any 90
day period without the consent of the Purchasers.
3.4 The Company will use its best efforts to register
and qualify the Shares under the state securities or Blue Sky laws of
such jurisdictions in the United States of America as shall be
reasonably requested by Kelton, on behalf of the Purchasers, provided
that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent
to service of process in any state or jurisdiction.
3.5 The Company will furnish Kelton, as broker for the
Purchasers, such number of copies of prospectuses in conformity with the
requirements of the Securities Act and such other documents as Kelton
may reasonably request, in order to facilitate the public sale or other
disposition of all or any of the Shares owned by the Purchasers;
provided, however, that the obligation of the Company to deliver copies
of prospectuses to Kelton shall be subject to the receipt by the Company
of reasonable assurances from Kelton that Kelton will comply with the
applicable provisions of the Securities Act, the Exchange Act and such
other securities laws and regulations as may be applicable in connection
with any use of such prospectuses.
3.6 The Company agrees to pay all of its expenses in
connection with the registration of the Shares with the Commission,
including all fees, disbursements and expenses of the Company's legal
counsel and accountants in connection with the preparation, printing and
filing of the Registration Statement and all amendments and supplements
thereto and the delivery of copies of the prospectuses therefrom to
Kelton.
3.7 Purchaser agrees to pay all underwriting
discounts, selling commissions and stock transfer taxes applicable to
any sale of the Designated Shares by Purchaser pursuant to the
Registration Statement.
3.8 For the purposes of sections 3.9 and 3.10
hereof:
3.8.1 the term "Registration Statement" shall include
the Registration Statement referred to in section 3.1
hereof and any final prospectus, exhibit or amendment
included in or relating to the Registration Statement
referred to in section 3.1 hereof, including all
documents incorporated by reference in the
Registration Statement except that the Registration
Statement shall not refer to any final prospectus at
any time when it has been superseded by a current
prospectus filed as part of any amendment to the
Registration Statement; and
3.8.2 the term "untrue statement" shall mean any
misstatement of and any omission to state in the
Registration Statement a material fact required to be
stated therein or necessary to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; and
3.8.3 the term "Company Information" means any
information contained under the headings "Selected
Historical Financial Information", "Summary--The
Company", "Pro Forma Selected Financial Information",
"The Company", "Common Stock Price Range and
Dividends" (only to the extent of the first and last
paragraphs thereof), "Capitalization", "Management's
Discussion and Analysis of Financial Condition and
Results of Operations", "Management", "Principal
Stockholders",
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"Description of Capital Stock", and the financial
statements to be contained in the Registration
Statement.
3.9 The Company agrees to indemnify and hold harmless
Purchaser (and each person, if any, who controls Purchaser within the
meaning of section 15 of the Securities Act and each director of
Purchaser) from and against any losses, claims, damages or liabilities
to which Purchaser (or such controlling person or director) may become
subject (under the Securities Act or otherwise) insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon any untrue statement or alleged
untrue statement contained or incorporated by reference in the Company
Information contained in the Registration Statement on the effective
date thereof and the Company will reimburse Purchaser (or such
controlling person or director) for any legal or other expenses
reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim: provided, however, that the
Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement made in such Registration
Statement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of Purchasers or Kelton
specifically for use in preparation of the Registration Statement.
3.10 Promptly after receipt by Purchaser of a notice
of a claim or the beginning of any action in respect of which indemnity
is to be sought against the Company pursuant to section 3.9 hereof,
Purchaser shall notify the Company in writing of such claim or of the
commencement of such action and, subject to the provisions hereinafter
stated, in case any such action shall be brought against Purchaser and
Purchaser shall have been notified thereof, the Company shall be
entitled to participate therein, and, to the extent it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to
Purchaser. After notice from the Company to Purchaser of its election to
assume the defense thereof, the Company shall not be liable to Purchaser
under such indemnification for any legal expenses subsequently incurred
by Purchaser in connection with the defense thereof; provided, however,
that if there exists or shall exist a material conflict of interest that
would make it inappropriate for the same counsel to represent both
Purchaser and the Company or any affiliate or associate thereof,
Purchaser shall be entitled to retain its own counsel at the expense of
the Company. In the event the Company does not elect to assume the
defense of any claim or action, the Company shall not be liable for any
settlement of any such claim or action effected without the written
consent of the Company, which consent shall not be unreasonably
withheld. Without the written consent of Purchaser, the Company shall
not agree to the settlement of any claim or action if the effect thereof
would be to find Purchaser has violated the provisions of the Securities
Act, the Exchange Act or any state securities or blue sky laws.
4. Representations and Warranties of the Company. The Company
hereby represents and warrants to Purchaser as follows:
4.1 Organization and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of South Carolina and has all requisite corporate
power and authority to own and lease its properties and to conduct its
business as presently conducted and as described in the Private
Placement Memorandum. The Company is duly qualified to do business as a
foreign corporation and is in good standing in every jurisdiction where
such qualification is required by controlling law and where the failure
to so qualify would have a material adverse effect on the Company and
its subsidiaries, taken as a whole. Each Principal Subsidiary (as
defined below) is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and
has all requisite corporate power and authority to own and lease its
properties and to conduct its business as presently conducted and as
described in the Private Placement Memorandum. Each Principal Subsidiary
is duly qualified to do business as a foreign corporation and is in good
standing in every jurisdiction where such qualification is required by
controlling law and where the failure to so qualify would have a
material adverse effect on the Company and its subsidiaries, taken as a
whole. The principal subsidiaries of the Company (collectively, the
"Principal Subsidiaries") are:
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Carolina First Bank, a South Carolina state chartered
bank
Carolina First Mortgage Company, a South Carolina
corporation
Blue Ridge Finance Company, Inc., a South
Carolina corporation
4.2 Authorized Capital Stock. The authorized and
outstanding capital stock of the Company is as set out in the Private
Placement Memorandum, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued and are
fully paid and nonassessable. All of the outstanding shares of capital
stock of the Principal Subsidiaries have been duly and validly
authorized and issued and are fully paid and non-assessable. All of the
outstanding shares of capital stock of the Principal Subsidiaries are
owned by the Company free and clear of any claim, lien, security
interest, mortgage, pledge, charge or other encumbrance of any nature
whatsoever.
4.3 Due Execution, Delivery and Performance of the
Purchase Agreement. The execution, delivery and performance of the
Purchase Agreements by the Company (a) have been duly authorized by all
requisite corporate action of the Company, and (b) will not violate (i)
the Articles of Incorporation or By-laws of the Company or (ii) any law
applicable to the Company or any of its subsidiaries or any rule,
regulation or order of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or (iii) any
provision of any indenture, mortgage, agreement, contract or other
instrument to which the Company, any of the Principal Subsidiaries is a
party or by which the Company, any of the Principal Subsidiaries is
bound or to which any of the properties or assets of the Company or any
of the Principal Subsidiaries are subject, or be in conflict with, or
result in a breach of or constitute (upon notice or lapse of time or
both) a default under any such indenture, mortgage, agreement, contract
or other in strument or result in the creation or imposition of any
claim, lien, security interest, mortgage, pledge, charge or other
encumbrance of any nature whatsoever upon any of the properties or
assets of the Company or any of the Principal Subsidiaries (except for
such violation, breach or default described in (b)(iii) hereof which
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole). Upon execution and delivery by the
Company, the Purchase Agreements will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as the enforceability
thereof may be limited by any applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable
principles, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
4.4 Issuance and Delivery of the Shares. The offer,
issuance, sale and delivery of the Shares in accordance with the
Purchase Agreements, have been duly authorized by all requisite
corporate action of the Company. The Shares conform to the description
of the Common Stock contained in the Private Placement Memorandum and
conform to the terms of the Common Stock contained in the Company's
Articles of Incorporation. The Shares included in the Designated Shares,
as and when issued and sold to Purchaser pursuant to this Purchase
Agreement, and upon receipt by the Company of the Purchase Price thereof
or, will be duly and validly issued and outstanding, fully paid and
non-assessable, will not be subject to any pre-emptive or similar right,
and Purchaser will receive good and valid record title to the Shares,
free and clear of any claim, lien, security interest, mortgage, pledge,
charge or other encumbrance of any nature whatsoever, except such as may
have been created by Purchaser. No consent or approval by the
stockholders of the Company or of any other person is required to be
obtained by the Company for the consummation of the issuance, sale and
delivery of the Shares to the Purchasers pursuant to the Purchase
Agreements.
4.5 Private Placement Memorandum.
4.5.1 The Private Placement Memorandum, as of its date
and at the Closing Date, and any amendment thereof or
supplement thereto, as of their respective dates and
the Closing Date, did not and will not as of such
dates, 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 light of the circumstances
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under which they were made, not misleading; provided,
however, that this representation and warranty shall
not apply to any statements or omissions made in
reliance upon and in conformity with information
furnished in writing to the Company expressly for use
therein by Kelton or any broker-dealer participating
in the offering as a placement agent therefor.
4.5.2 The SEC Documents and any other documents
incorporated or deemed incorporated by reference in
the Private Placement Memorandum, at the time they
were or hereafter are filed with the Commission under
the Exchange Act, and the rules and regulations of the
Commission thereunder did not or will not contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading.
4.5.3 Except as otherwise disclosed in the Private
Placement Memorandum, the consolidated financial
statements of the Company and its subsidiaries
contained in the SEC Documents and incorporated by
reference in the Private Placement Memorandum present
fairly in all material respects the consolidated
financial condition of the Company and its
subsidiaries as of the respective dates thereof and
the consolidated results of operations of the Company
and its subsidiaries for the respective periods
covered thereby, all in conformity with accounting
principles generally accepted in the United States
applied on a consistent basis throughout the entire
periods involved.
4.6 Legal Proceedings. Except as otherwise described
in, or by information incorporated by reference in, the Private
Placement Memorandum, there are no actions, suits, investigations or
proceedings pending to which the Company or any of the Principal
Subsidiaries is a party before or by any court or governmental agency or
body, which in the opinion of management of the Company would result,
individually or in the aggregate, in any material adverse change in the
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, or which would materially and adversely
affect the consolidated properties or assets thereof; and to the best
knowledge of the Company's management, no such actions, suits,
investigations or proceedings are threatened by any person, corporation
or governmental agency or body.
4.7 No Material Change. Except as disclosed in or
contemplated by, or by information incorporated by reference in, the
Private Placement Memorandum, there has been no material adverse change
or, to the actual knowledge of the Company's management, any development
which will result in a material adverse change, in or affecting the
business, operations, management, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries
since December 31, 1996.
4.8 Properties and Assets. Each of the Company and the
Principal Subsidiaries has good and marketable title to all properties
and assets described in the Private Placement Memorandum as owned by it,
free and clear of any claim, lien, security interest, mortgage, pledge,
charge or other encumbrance of any nature whatsoever, except as
disclosed in, or by information incorporated by reference in, the
Private Placement Memorandum or are not material to the business of the
Company and its subsidiaries, taken as a whole, or which would not
result, individually or in the aggregate in a material adverse effect on
the Company and its subsidiaries, taken as a whole. Each of the Company
and the Principal Subsidiaries has valid, subsisting and enforceable
leases for the properties described in, or by information incorporated
by reference in, the Private Placement Memorandum as leased by it, with
such exceptions as are not material and do not materially interfere with
the use made and proposed to be made of such properties by the Company
and such subsidiaries and companies. Except as otherwise disclosed in,
or by information incorporated by reference in, the Private Placement
Memorandum, each of the Company and the Principal Subsidiaries owns or
possesses or is the valid licensee of all patents, trademarks, service
marks and trade names necessary to carry on its business as described
in, or by information incorporated by reference in, the Private
Placement Memorandum. Except
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as otherwise disclosed in, or by information incorporated by reference
in, the Private Placement Memorandum, neither the Company nor any
subsidiary has received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing which, if
the subject of an unfavorable decision, ruling or finding, would result,
individually or in the aggregate, in any material adverse change in, or
affecting the business, operations, financial position or business
prospects of the Company and its subsidiaries, taken as a whole.
4.9 Compliance with Applicable Laws and Regulations.
Except as disclosed in, or by information incorporated by reference in,
the Private Placement Memorandum, each of the Company and the Principal
Subsidiaries (a) has all governmental licenses, permits, consents,
orders, approvals, qualifications and other authorizations necessary to
carry on its business as described in, or by information incorporated by
reference in, the Private Placement Memorandum (except for those whose
absence would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole), (b) complies in all material respects
with, and conducts its business in substantial conformity with (except
for failures to comply which would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole), all laws,
regulations and orders applicable to it or its business, and (c)
complies in all material respects with, and conducts its business in
substantial conformity with (except for failures to comply which would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole), all such licenses, permits, consents, orders,
approvals, qualifications, authorizations issued by, and all agreements
of the Company and the Principal Subsidiaries with, any governmental
agency or body having jurisdiction over the Company and its subsidi-
aries.
4.10 Investment Company Act of 1940. The Company is
not an "investment company" or an "affiliated person" of, or "promoter"
or "principal" for, an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
4.11 Compliance with Regulation S. The Company is a
"reporting issuer" (as defined in Regulation S). The Company, its
affiliates and any person acting on behalf of, or as agent of, any of
the foregoing, whether as principal or agent, (a) have offered and sold
the Shares to the Purchasers only in an "offshore transaction" (as
defined in Regulation S), (b) have not engaged with respect to the
Shares in any "directed selling efforts" (as defined in Regulation S) in
or directed toward the United States, (c) have complied with all
"offering restrictions" (as defined in Regulation S) in respect of the
Shares, (d) have not delivered the Private Placement Memorandum or any
revision or amendment thereof or supplement thereto to any "U.S. person"
(as defined in Regulation S) (other than its professional advisers), (e)
have not made any offers or sales of any of the Shares or any interest
therein in the United States or to, or for the account or benefit of,
any U.S. person" (as defined in Regulation S), and (f) have not made any
sales of any of the Shares or any interest therein to any person other
than the Purchasers; provided, however, that insofar as this
representation and warranty involves any broker-dealer participating in
the offering or any officer, director, employee or agent of such
broker-dealer, to the extent such broker-dealer is acting as placement
agent for the offering of the Shares, such representation and warranty
is made by the Company solely on the basis of and in reliance upon the
representations and warranties of such broker-dealer complying with
Regulation S with respect to offers and sales of Shares.
4.12 Representations and Warranties. Each of the
representations and warranties contained in this section 4 is true and
correct in all material respects as of the date of this Purchase
Agreement.
5. Representations, Warranties and Covenants of Purchaser.
Purchaser hereby represents, warrants and covenants to the Company as
follows:
5.1 Compliance with United States Securities Laws.
Purchaser understands and acknowledges that (a) prior to the
effectiveness of the Registration Statement described in section 3.1
hereof, the Shares have not been
8
<PAGE>
registered under the Securities Act, and may not be offered or sold in
the United States or to, or for the account or benefit of, any "U.S.
person" (as defined in Regulation S, which definition is set out in the
Private Placement Memorandum), unless such securities are registered
under the Securities Act and any applicable state securities or blue sky
laws or such offer or sale is made pursuant to exemptions from the
registration requirements of such laws and (b) the Shares are being
offered and sold pursuant to the terms of Regulation S under the
Securities Act, which permits securities to be sold to non-"U.S.
persons" in "offshore transactions" (as defined in Regulation S),
subject to certain terms and conditions.
5.2 Purchase of Designated Shares. Purchaser is
purchasing the Designated Shares (i) for its own account or for persons
or accounts as to which it exercises investment discretion; and (ii) for
investment purposes only, not for any trading or arbitrage purposes and
not with a view to, or for sale in connection with, any distribution of
the Designated Shares. Neither Purchaser nor such person or account (i)
is a "U.S. person" as defined in Regulation S (a copy of such definition
is set out in the Private Placement Memorandum) or a U.S. citizen part
of an identifiable group of U.S. citizens abroad, or (ii) is acquiring
the Designated Shares for the account or benefit of any "U.S. person",
or (iii) if an entity, is organized under the laws of the "United
States" (as defined in Regulation S; a copy of which definition is set
out in the Private Placement Memorandum), or (iv) if an entity, was
organized for the purpose of acquiring the Designated Shares, or (v) is
registered under the Exchange Act, or (vi) is purchasing the Shares in
any transaction or series of transactions that, although in technical
compliance with Regulation S, is part of a plan or scheme to evade the
registration provisions of the Securities Act. Purchaser's purchase of
the Designated Shares was not prearranged with the Purchaser in the
United States. Purchaser has executed this Purchase Agreement outside
the United States, and at the time the buy order for the Designated
Shares was originated, Purchaser was outside the United States. All
offers to Purchaser regarding the Designated Shares and the sale of the
Designated Shares have occurred outside the United States.
5.3 Status of Purchaser. Purchaser (and any person or
account on behalf of which Purchaser is purchasing) is knowledgeable,
sophisticated and experienced in financial and business matters and in
making, and is qualified to make, decisions with respect to investments
in restricted securities (such as the Designated Shares) and has
requested, received, reviewed and considered all information it deems
relevant, and it has relied solely upon its review of the Private
Placement Memorandum, this Purchase Agreement and its own independent
investigations in making a decision to execute this Purchase Agreement
and to purchase the Designated Shares. Purchaser acknowledges receipt of
the Private Placement Memorandum, including all of the Exhibits to the
Private Placement Memorandum, at least 48 hours before Purchaser
executed this Agreement. Purchaser has read and understands the Private
Placement Memorandum, including all of the Exhibits to the Private
Placement Memorandum, this Purchase Agreement and any other information
and documents about the Company or the offering of the Shares requested
by Purchaser. Purchaser represents, warrants and acknowledges that it is
capable of evaluating the merits and risks of its investment in the
Designated Shares. To the extent that any certificate representing the
Designated Shares is registered in the name of Purchaser's nominee,
Purchaser confirms that such nominee is acting solely as its custodian.
Purchaser is an "accredited investor" as defined in Regulation D under
the Securities Act.
5.4 Investigation. Purchaser acknowledges that the
Company has made available to Purchaser the opportunity to ask questions
and receive answers concerning the terms and conditions of the offering
of the Shares and to obtain any additional information that the Company
possesses or can acquire without unreasonable effort or expense that is
necessary to verify the accuracy of the information furnished in
accordance herewith, and that the Company has responded to all such
questions and requests for information to the full satisfaction of
Purchaser. Purchaser acknowledges that the Private Placement Memorandum
has been delivered to it, and that it has not and will not distribute
the Private Placement Memorandum to anyone other than such Purchaser's
professional advisors for the purpose of evaluating the proposed
purchase of the Designated Shares.
9
<PAGE>
5.5 Restrictions on Re-Sale. For a period of forty
(40) days following the Closing Date, or if the Shares come to be issued
on more than one day, the latest Closing Date (the "Restricted Period"),
Purchaser shall not (i) engage in any activity for the purpose of, or
which may reasonably be expected to have the effect of, conditioning the
market in the United States for the Shares, or, (ii) unless the
Registration Statement shall have become effective, offer, sell,
transfer, pledge or otherwise dispose of the Designated Shares in the
United States or to, or for the account or benefit of, a "U.S. person"
(as defined in Regulation S).
5.6 Transfer of Shares. Purchaser understands that the
Designated Shares or any interest therein are only transferable on the
books and records of the Common Stock of the Company at the Transfer
Agent. Purchaser further understands that the Transfer Agent will not
register any transfer of the Designated Shares or any interest therein
which the Company in good faith believes violates the restrictions set
forth herein.
5.7 Transfer Procedures During the Restricted Period.
Unless the Registration Statement shall have then become effective, any
proposed offer, sale, transfer, pledge or other disposition during the
Restricted Period of any of the Designated Shares or any interest
therein shall be subject to the condition that Purchaser must deliver to
the Company (a)(i) a written certification that neither record nor
beneficial ownership of the Shares or any interest therein has been
offered or sold in the United States or to, or for the account or
benefit of, any "U.S. person" (as defined in Regulation S), and (ii) a
written certification of the proposed transferee that such transferee
(or any account for which such transferee is acquiring such Shares or
any interest therein, as the case may be) is not a "U.S. person" (as
defined in Regulation S), that such transferee is acquiring such Shares
or such interest therein for such transferee's own account (or an
account over which it has investment discretion) and for investment and
not with a view to a distribution, and that such transferee is acquiring
such Shares or such interest therein for such transferee's own account
(or an account over which it has investment discretion) for investment
purposes only, not for any trading or arbitrage purposes and not with a
view to, or for sale in connection with, any distribution of any of the
Shares, that such transferee did not receive any other offer relating to
the Shares or any interest therein in the United States, that at the
time the buy order was originated, such transferee was outside the
United States, that such transferee is not a U.S. citizen part of an
identifiable group of U.S. citizens abroad, that such transferee is
knowledgeable of and agrees to be bound by the restrictions set forth in
this Purchase Agreement and Regulation S during the Restricted Period,
and that such transferee agrees that until the expiration of the
Restricted Period, it will not, directly or indirectly, execute or
effect or cause to be executed or effected any short sale, option or
equity swap transactions in or relating to the Common Stock or any other
derivative security transactions the purpose or effect of which is to
hedge or transfer to a third party all or any part of the risk of loss
associated with the ownership of the Designated Shares to be acquired
from the proposed transferor, or (b) a written opinion of United States
counsel, in form and substance satisfactory to the Company, to the
effect that the offer, sale, transfer, pledge or other disposition of
such Designated Shares or any interest therein are exempt from
registration under the Securities Act.
5.8 Transfers Must Be In Compliance with Securities
Laws. Purchaser will not, directly or indirectly, voluntarily offer,
sell, pledge, transfer or otherwise dispose of (or solicit any offers to
buy, purchase or otherwise acquire or take a pledge of) its rights under
this Purchase Agreement, the Shares or any interest therein otherwise
than in compliance with the Securities Act, any applicable state
securities or blue sky laws and any applicable securities laws of
jurisdictions outside the United States, and the rules and regulations
promulgated thereunder.
5.9 Legends. Purchaser agrees that, until removed
pursuant to section 2.3 hereof, the stock certificates representing the
Designated Shares shall bear the legend set forth below:
"The shares of Common Stock represented by this
certificate have not been registered under the United
States Securities Act of 1933, as amended (the "Act"),
or any other securities laws, and have been issued in
reliance upon the exemption from registration under
the Act contained in Regulation S under
10
<PAGE>
the Act. Prior to 40 days following the date of the
closing of the sale of the last Share sold pursuant to
the Private Placement Memorandum dated January 27,
1998, no offer, sale, transfer, pledge or other
disposition (collectively, a "Disposal") of the shares
of Common Stock represented by this certificate may be
made: (a) in the United States or to, or for the
account or benefit of, any "U.S. person" (as defined
in Regulation S) unless (i) registered under the Act
and any applicable state securities and blue sky laws
or (ii) exemptions from the registration requirements
of such laws are available and Carolina First
Corporation ("CFC") receives a written opinion of
United States legal counsel in form and substance
satisfactory to it to the effect that such Disposal is
exempt from such registration requirements; and (b)
outside of the United States or to, or for the account
or benefit of a person who is not a "U.S. person" (as
defined in Regulation S) unless (i) the beneficial
owner of such shares and the proposed transferee
submit certain certifications to CFC and (ii) CFC
receives a written opinion of United States legal
counsel in form and substance satisfactory to it to
the effect that such Disposal is exempt from the
registration requirements of the Act. Hedging
transactions involving the Common Stock represented by
this certificate may not be conducted unless in
compliance with the registration or exemption
provisions of the Act."
5.10 Prohibition of Certain Trading Transactions by
Purchaser. During the period from the date of the Private Placement
Memorandum to the date of this Purchase Agreement, Purchaser did not,
and from such date and through the expiration of the Restricted Period
(as defined in section 5.5 hereof) Purchaser will not, execute or effect
or cause to be executed or effected, directly or indirectly, any short
sale, option, or equity swap transaction in or with respect to the
Common Stock of the Company or any other derivative security transaction
for its own account, if it is purchasing the Designated Shares for its
own account, or, if it is purchasing the Designated Shares for the
account of another person or entity, for such account, the purpose or
effect of which is to hedge or transfer to a third party all or any part
of the risk of loss associated with the ownership of the Designated
Shares by Purchaser.
5.11 Sales by Purchaser in the United States. If
Purchaser sells all or any part of the Designated Shares or any interest
therein in the United States, the Purchaser (and/or certain persons who
participate in any such sale) may be deemed, under certain
circumstances, to be an "underwriter" as defined in Section 2(11) of the
Securities Act. Prior to offering or selling all or any part of the
Designated Shares in the United States, whether during or subsequent to
the Restricted Period, Purchaser shall (a) consult with United States
legal counsel to determine its liabil ities and obligations under this
Purchase Agreement, the Securities Act and any applicable state
securities and blue sky laws, and (b) comply with the provisions of this
Purchase Agreement and all applicable federal, state securities and blue
sky laws, including the Securities Act.
5.12 Due Execution, Delivery and Performance of the
Purchase Agreement and Other Obligations. Purchaser has full right,
power, authority and capacity to enter into this Purchase Agreement and
to consummate the transactions contemplated hereby; if Purchaser is a
company or corporation, the execution, delivery and performance of this
Purchase Agreement by Purchaser have been duly authorized by all
requisite corporate action of Purchaser. Upon the execution and delivery
of this Purchase Agreement by Purchaser, this Purchase Agreement shall
constitute the legal, valid and binding obligations of Purchaser, except
as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization or other similar laws relating to
or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law.
5.13 Authorization of Kelton to Arrange Delivery of
the Designated Shares. Purchaser has authorized Kelton, on behalf of
Purchaser (i) to arrange with Carolina First Bank to hold the Designated
Shares on behalf of Purchaser until three (3) business days after the
Delivery Date, (ii) to accept delivery at the Closing of a receipt with
respect to the deposit of the Designated Shares, and (iii) to obtain
from the Company within three (3)
11
<PAGE>
business days after the Delivery Date a substitute stock certificate or
certificates representing the Shares included in the Designated Shares
without the restrictive legend described in section 5.9 hereof.
5.14 Amendment to Regulation S. The Purchaser agrees
that, notwithstanding any other provision of this Agreement, in the
event that subsequent to the date of this Agreement, there becomes
effective amendments to or repeal of Regulation S and such amendments or
repeal are effective with respect to the transactions contemplated
hereby or to the resale of the Shares received by the Purchaser, (i) the
Company shall take all actions which in the reasonable opinion of
counsel of the Company are necessary to cause the Company to comply with
the amended provisions of Regulation S, (ii) the Company shall not be
required to take any action pursuant to the terms of this Agreement or
the Shares which may be inconsistent with or cause the Company to
violate the provisions of Regulation S as amended and (iii) the Company
shall not be deemed to have violated any of the terms or conditions of
this Agreement or the Shares and shall not be liable to the Purchaser
for any actions thereby taken by the Company to render the Company in
compliance with Regulation S, as amended. In furtherance of and not in
limitation of the foregoing, in the event that a subsequent amendment to
Regulation S is applicable to the Shares and the sale and/or resale
thereof and results in (w) the lengthening of the restricted period
beyond the 40 day period set forth in Section 903(c)(2) of Regulation S
and/or (x) the Shares being deemed to be "restricted securities" for
purposes of Rule 144 of the General Rules and Regulations under the
Securities Act, then (y) the "Restricted Period" (as defined herein)
shall be deemed to be increased accordingly and/or (z) the Company shall
cause the Registration Statement described in section 3.1 hereof to
remain or become effective for an extended period ending one year after
the Closing Date.
5.15 Representations and Warranties at the Closing.
Each of the representations and warranties contained in this section 5
is true and correct in all material respects as of the date of this
Purchase Agreement and will be true and correct in all material respects
as of the Closing Date.
6. Survival of Representations, Warranties and Agreements.
Notwithstanding any investigation made by either party to this Purchase
Agreement, all covenants, agreements, representations and warranties
made by the Company and Purchaser herein and in the Designated Shares
delivered pursuant hereto shall survive the execution of this Purchase
Agreement, the delivery to Purchaser of the Designated Shares and the
receipt by the Company of payment for the Designated Shares.
7. Notices. All notices, demands, consents or other
communications under this Purchase Agreement shall be given or made in
writing and shall be delivered personally, or sent by registered or
international recorded airmail, postage prepaid, or sent by facsimile
transmission with a confirmation copy sent by mail as aforesaid, and
shall be deemed given when so personally delivered, or if mailed as
aforesaid, ten (10) days after the same shall have been posted or if
sent by facsimile transmission, at the earlier of (i) as soon as written
or telephonic confirmation is received from the party to whom it was
sent that the message has been received or (ii) ten (10) days after the
confirmation is posted:
7.1 if to the Company, at its address as set out at
the head of this Purchase Agreement, or at such address or addresses as
may have been furnished to Purchaser in writing by the Company;
7.2 if to Purchaser, at its address as set out
following Purchaser's signature on the signature page to this Purchase
Agreement, or at such other address or addresses as may have been
furnished to the Company in writing by Purchaser; or
7.3 if to any transferee or transferees of Purchaser,
at such address or addresses as shall have been furnished to the Company
at the time of the transfer or transfers, or at such other address or
addresses as may have been furnished by such transferee or transferees
to the Company in writing.
12
<PAGE>
8. Amendments. No amendment, interpretation or waiver of any of
the provisions of this Purchase Agreement shall be effective unless made
in writing and signed by the parties to this Purchase Agreement.
9. References and Headings. References to sections and
sub-sections refer to this Purchase Agreement unless expressly stated
otherwise. The headings of the sections and sub-sections of this
Purchase Agreement are used for convenience only and shall not affect
the meaning or interpretation of the contents of this Purchase
Agreement.
10. Enforcement. The failure to enforce or to require the
performance at any time of any of the provisions of this Purchase
Agreement shall in no way be construed to be a waiver of such
provisions, and shall not affect either the validity of this Purchase
Agreement or any part hereof or the right of any party thereafter to
enforce each and every provision in accordance with the terms of this
Purchase Agreement.
11. Governing Law. This Purchase Agreement and the
relationships of the parties in connection with the subject matter of
this Purchase Agreement shall be governed by and determined in
accordance with the substantive laws of the State of South Carolina, in
the United States of America, applicable to agreements made and to be
performed entirely therein.
12. Counterparts. This Purchase Agreement may be executed in
counterparts, all of which shall constitute one agreement, and each such
counterpart shall be deemed to have been made, executed and delivered on
the date set out at the head of this Purchase Agreement without regard
to the dates or times when such counterparts may actually have been
made, executed or delivered.
13. Severability. If any provision of this Purchase Agreement
is held to be invalid or unenforceable by any judgement of a tribunal of
competent jurisdiction, the remainder of this Purchase Agreement shall
not be affected by such judgement, and the Purchase Agreement shall be
carried out as nearly as possible according to its original terms and
intent.
13
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Purchase Agreement to be executed by their duly authorized
representatives as of the day and year first hereof written.
ALLOCATION SCHEDULE
Price per Designated Share: $20.50
Number of Designated Shares Purchased:
Total Amount Payable to the Company:
Value Date for Payment of the Purchase Price:
Closing Date: February 13, 1998
Payment Instructions:
Account: Carolina First Corporation
1018002105
Account No: For the benefit and further credit
to Carolina First's Fed Account
ABA No: 053201885
Bank: Carolina First Bank 102 S. Main
Street, Greenville, South Carolina
29601 United States of America
14
<PAGE>
PURCHASER'S NAME: PURCHASER'S ADDRESS:
By:
Name:
Title:
Stock certificate registration instructions:
Name of Holder:
Address of Holder:
Contact name and telephone:
CAROLINA FIRST CORPORATION
By:
Name:
Title:
15
EXHIBIT 99.2
16
<PAGE>
III/912117
CAROLINA FIRST CORPORATION
PLACEMENT AGENT AGREEMENT
January 20, 1998
Kelton International Limited
35 Curzon Street
London W1Y 7AE
England
Dear Sirs:
1. Introduction
1.1 Carolina First Corporation, a South Carolina corporation (the
"Company") intends to offer and sell up to 2,000,000 shares (the
"Shares") of its common stock, par value $1.00 per share (the "Common
Stock") to investors who are not "U.S. persons" as defined in Regulation
S ("Regulation S") under the United States Securities Act of 1933, as
amended (the "Securities Act"), pursuant to purchase agreements (the
"Purchase Agreements") to be entered into by the Company and each such
investor (a "Purchaser" and collectively, "the Purchasers"), in reliance
upon and in conformity with an exemption from the registration
requirements of the Securities Act pursuant to Regulation S.
1.2 The Company has prepared a preliminary private placement memorandum
dated the date hereof and will prepare, after pricing, a final private
placement memorandum (collectively, the "Private Placement Memorandum"),
describing, among other things, the Shares, and providing material
information about the Company and the terms of the offering. Copies of
the Private Placement Memorandum and all amendments thereof and
supplements thereto, if any, to date are being or have been delivered to
you.
1.3 The Company has requested Kelton International Limited ("Kelton") to
assist the Company as placement agent in the placement of the Shares,
and Kelton has indicated its willingness to do so, subject to the
satisfactory completion of such investigation and inquiry into the
Company's business as it deems appropriate under the circumstances and
subject to the conditions set forth hereof.
2. Appointment of Placement Agent; Placement of Shares
2.1 The Company hereby appoints Kelton as exclusive placement agent in
connection with the placement of all of the Shares for the period (the
"Placement Period") terminating on the Placement Termination Date
hereinafter referred to. Subject to the performance in all material
respects by the Company of its obligations to be performed hereunder,
and to the completeness and accuracy in all material respects of all of
the representations and warranties of the Company contained herein,
Kelton hereby accepts such agency and agrees on the terms and conditions
herein set forth to use its best efforts during the Placement Period to
find qualified subscribers for all of the Shares. The agency hereunder,
which is coupled with an interest and, therefore, is not terminable by
the Company without Kelton's permission, shall continue until the close
of business on March 26, 1998,
<PAGE>
III/912117 -2-
unless the Company elects to extend the Placement Period for an
additional period of thirty (30) days or unless the Company and Kelton
agree that the Placement Period shall be further extended for such a
further additional period, except that, in any event, the agency
hereunder shall terminate on the date of the final issuance of the
Shares (the "Closing Date"). The date on which the agency hereunder is
terminated is hereinafter referred to as the "Placement Termination
Date".
2.2 In the event the offering is commenced and no Shares shall have been
subscribed for prior to the Placement Termination Date, the agency
hereunder and this Placement Agent Agreement shall terminate without
obligation on Kelton's part or on the part of the Company except as
provided in section 5 hereof and except that the indemnification and
contribution provided for in section 8 hereof shall continue after such
termination of this Placement Agent Agreement.
2.3 Kelton shall not, in fulfilling its obligations hereunder, act as
underwriter for the Shares, and is in no way obligated, directly or
indirectly, to advance its own funds to purchase any Shares.
2.4 Notwithstanding anything herein to the contrary, the Company shall
not be obligated to sell any of the Shares unless Kelton shall have
found qualified subscribers for such Shares.
3. Certain Agreements of the Company
The Company hereby agrees with Kelton that:
3.1 During the Placement Period, neither the Company or any affiliate of
the Company nor anyone acting on behalf of the Company or any such
affiliate, other than Kelton, shall, directly or indirectly, offer or
sell, or attempt to offer, sell or dispose of, any of the Shares, or
solicit any offer to buy, or otherwise approach or negotiate in respect
of, any of the Shares.
<PAGE>
III/912117 -3-
3.2 As soon as practicable after the date hereof, but not later than
five (5) business days prior to the Closing Date, the Company shall
furnish to Kelton as many copies of the Private Placement Memorandum and
of each revision or amendment thereof or supplement thereto (including
exhibits included therewith) as Kelton may reasonably request.
3.3 If any event shall occur as a result of which it is necessary, in
the opinion of Kelton, to amend or supplement the Private Placement
Memorandum in order to correct any untrue statement of a material fact
or to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Company shall forthwith
prepare and furnish to Kelton, a reasonable number of copies of an
amendment of or supplement to the Private Placement Memorandum (in form
and substance satisfactory to Kelton), so that, as so amended or
supplemented, the Private Placement Memorandum will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company will not at any time amend or supplement the
Private Placement Memorandum (i) prior to having furnished Kelton with a
copy of the proposed form of the amendment or supplement and giving
Kelton a reasonable opportunity to review the same or (ii) in a manner
to which Kelton or its counsel shall reasonably object.
3.4 The Company shall furnish such information, execute such instruments
and take such action, if any, as may be required to effect the placement
of the Shares under the securities laws of each jurisdiction in which
the Shares are offered for sale or sold; provided, however, that the
Company shall not be required to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to general or unlimited service of process in any
jurisdiction where it is not now so subject.
3.5 The Company shall furnish or make available to Kelton and its
counsel such additional documents and information regarding the Company
and its affairs as Kelton may from time to time reasonably request,
including any and all documentation reasonably requested in connection
with its due diligence efforts regarding information in the Private
Placement Memorandum and in order to evidence the accuracy or
completeness of any of the conditions contained in this Placement Agent
Agreement; and all actions taken by the Company to authorize the
issuance and sale of the Shares shall be reasonably satisfactory in form
and substance to Kelton.
3.6 The Company shall, at all times upon reasonable request from the
date hereof through the Closing Date, (i) make available to each
subscriber or its advisers, or both, prior to acceptance of its
subscription, such information (in addition to that contained in the
Private Placement Memorandum) concerning the offering, the Company and
any other relevant matters as it possesses or can acquire without
unreasonable effort or expense, and (ii) provide each subscriber or its
advisers, or both, prior to acceptance of its subscription, the
opportunity to ask questions of, and receive answers from, the Company
with respect to such matters.
3.7 The Company will not at any time issue a press release to announce
the offering or placement of the Shares (i) without the prior consent of
Kelton, (ii) prior to having furnished Kelton with a copy of the
proposed form of the press release and giving Kelton a reasonable
opportunity to review and comment upon the same or (iii) in a manner to
which Kelton or its counsel shall reasonably object. Any such press
release shall comply with the requirements of Rule 135c under the
Securities Act.
3.8 The Company shall file with The National Association of Securities
Dealers, Inc. and/or the United States Securities and Exchange
Commission (the "Commission") all necessary filings in respect of the
issuance and sale of the Shares being issued and sold by the Company and
the listing thereof on The NASDAQ Stock Market and shall provide to
Kelton and its legal counsel a copy of all such definitive filings (and
any
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amendments thereof or supplements thereto including in each case
exhibits thereto).
3.9 Immediately after the Closing (and in no case later than ten (10)
days after the Closing Date), the Company will prepare and file with the
Commission a registration statement on Form S-3 (or such other form as
may be available) (the "Registration Statement") with respect to the
Shares, providing for the sale of the Shares by the Purchasers from time
to time during the period provided for in section 3.11 hereof in
permitted public sales or in privately negotiated transactions.
3.10 The Company will use its best efforts to cause the Registration
Statement to become effective on or before the thirtieth day after the
date of filing (and if not effective by such date, as soon as possible
thereafter) provided the Company has timely received from Kelton the
information regarding the Purchasers necessary to such effectiveness,
and, upon such effectiveness, the Company will cause the Registration
Statement to remain effective for the period provided for in section
3.11 hereof.
3.11 Subject to section 3.10 hereof, the Company will prepare and file
with the Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith and any other
documents as may be necessary to keep the Registration Statement
effective and current until all the Shares have been sold pursuant
thereto by the Purchasers or until ninety (90) days after the date on
which the Registration Statement is declared effective, whichever is
earlier.
3.12 The Company will furnish Kelton, as broker for the Purchasers, such
number of copies of prospectuses in conformity with the requirements of
the Securities Act and such other documents as Kelton may reasonably
request, in order to facilitate the public sale or other disposition of
all or any of the Shares owned by the Purchasers; provided, however,
that the obligation of the Company to deliver copies of prospectuses to
Kelton shall be subject to the receipt by the Company of reasonable
assurances from Kelton that Kelton will comply with the applicable
provisions of the Securities Act, the United States Securities Exchange
Act of 1934 (the "Exchange Act"), as amended, and such other securities
laws and regulations as may be applicable in connection with any use of
such prospectuses.
3.13 The Company agrees to pay all of its expenses in connection with
the registration of the Shares with the Commission, including all fees,
disbursements and expenses of the Company's legal counsel and
accountants in connection with the preparation, printing and filing of
the Registration Statement and all amendments and supplements thereto
and the delivery of copies thereof to Kelton.
3.14 Until removed pursuant to section 2.3 of the Purchase Agreements,
the stock certificates representing the Shares shall bear the legend set
forth hereof:
"The shares of Common Stock represented by this
certificate have not been registered under the United
States Securities Act of 1933, as amended (the "Act"),
or any other securities laws, and have been issued in
reliance upon the exemption from registration under
the Act contained in Regulation S under the Act. Prior
to 40 days following the date of the closing of the
sale of the last Share sold pursuant to the Private
Placement Memorandum dated January **, 1998, no offer,
sale, transfer, pledge or other disposition
(collectively, a "Disposal") of the shares of Common
Stock represented by this certificate may be made: (a)
in the United States or to, or for the account or
benefit of, any "U.S. person" (as defined in
Regulation S) unless (i) registered under the Act and
any applicable state securities and blue sky laws or
(ii) exemptions from the registration requirements of
such laws are available and Carolina First Corporation
("CFC") receives a written opinion of United States
legal counsel in form and substance satisfactory to it
to the effect that such Disposal is exempt from such
registration requirements; and (b) outside of
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the United States or to, or for the account or benefit
of a person who is not a "U.S. person" (as defined in
Regulation S) unless (i) the beneficial owner of such
shares and the proposed transferee submit certain
certifications to CFC and (ii) CFC receives a written
opinion of United States legal counsel in form and
substance satisfactory to it to the effect that such
Disposal is exempt from the registration requirements
of the Act."
3.15 The Company shall cause Reliance Trust Company of Atlanta, Georgia,
the transfer agent for the Common Stock, or any successor transfer agent
thereto (the "Transfer Agent") to deliver to any Purchaser or subsequent
holder who has received a stock certificate representing Shares which
bears the legend described in section 3.14 hereof (the "Legended Stock
Certificate"), within three (3) business days after the first to occur
of (a) the effectiveness of the Registration Statement or (b) the
expiration of the Restricted Period (as defined in the Purchase
Agreements) or at any subsequent time requested by a Purchaser or
subsequent holder, a substitute stock certificate or stock certificates
representing such Shares without any restrictive legend, including, but
not limited to, the restrictive legend described in section 3.14 hereof.
The Company shall require the Transfer Agent to deliver such substitute
stock certificate or certificates without cost only upon surrender of
the Legended Stock Certificate or Certificates which, in the case of any
holder subsequent to the Purchaser, must be duly endorsed for transfer
or surrender and in the case of a subsequent holder, such surrender must
be accompanied by payment of any amount necessary to be paid pursuant to
any transfer tax or other similar governmental charge relating to such
transaction. As and from such time, no "stop transfer" or similar
instruction or order with respect to the Shares shall be in effect at
the Transfer Agent. As and from such time, the Shares shall be included
in the shares of Common Stock of the Company listed for trading on The
NASDAQ Stock Market.
4. Further Issues of Common Stock or Convertible Securities.
4.1 For purposes of this section 4:
4.1.1 the term "Initial Period" shall mean that period
beginning on the date of the execution of this
Placement Agent Agreement and ending at midnight (New
York local time) of the fortieth day after the Closing
Date; and
4.1.2 the term "Consent Period" shall mean that period
beginning on the date of the execution of this
Placement Agent Agreement and ending at midnight (New
York local time) of the ninetieth day after the end of
the Restricted Period.
4.2 During the Consent Period, the Company will not, without the prior
written consent of Kelton, offer, issue, sell, or deliver, or agree to
offer, issue, sell or deliver (whether through the issuance or granting
of options, warrants, commitments, subscriptions, rights to purchase or
otherwise), or file any registration statement with respect to any
issuance, offer or sale of, or agree to file any registration statement
with respect to any issuance, offer or sale of, any securities of the
Company or any obligations convertible into or exchangeable for, or give
any person any right to acquire from the Company, any securities of the
Company (such actions being collectively referred to as a "Stock
Issue"), except for (i) the issuance of the Shares to the Purchasers
pursuant to the Purchase Agreements, (ii) the issuance of shares of
Common Stock pursuant to the provisions of any of the Company's
currently outstanding employee or director benefit plans or the grant of
any stock options pursuant to any of the Company's currently outstanding
employee or director benefit plans, (iii) the filing of the Registration
Statement described in section 3.9 hereof, (iv) the issuance of Common
Stock or securities convertible into Common Stock of the Company in
connection with the acquisition of banks or other financial institutions
or the assets and liabilities thereof and (v) the issuance of shares of
Common Stock under the terms and conditions of the Company's existing
Dividend Reinvestment and Stock Purchase Plan as in effect on the date
of this Placement Agent Agreement (the "Plan"), provided, however, that
the Company expressly undertakes that during the
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Consent Period without the prior written consent of Kelton the Company
shall not amend in any way the terms and conditions of the Plan.
4.3 With respect to the matters described in section 4.2
hereof:
4.3.1 during the Initial Period, Kelton will not give its
consent to any issue of securities by the Company for
which Kelton's consent is required; and
4.3.2 during the part of the Consent Period following the
expiration of the Initial Period, Kelton will not
give its consent to any issue of securities by the
Company for which Kelton's consent is required
unless the best bid price of the Company's Common
Stock as quoted on The NASDAQ Stock Market has been
trading at twenty per cent (20%) or more above
the price for the Designated Shares as described in
the Allocation Schedule to the Purchase Agreements
for any ten trading days during such period
including the day prior to the offering in any
private placement or to the filing with Commission of
any registration statement in respect of a public
offering other than the Registration Statement
described in section 3.9 hereof.
4.4 During the Consent Period, Kelton will not unreasonably withhold its
consent to actions by Issuer for which Kelton's consent is required,
except as set out in section 4.3 hereof.
5. Compensation; Payment of Expenses
5.1 In consideration of Kelton's services in acting as exclusive
placement agent for the placement of the Shares, the Company hereby
agree to pay to Kelton a fee in an amount equal to four percent (4%) of
the gross proceeds of the sale of the Shares, such fee to be payable on
the Closing Date by wire transfer of immediately available funds to an
account to be designated by Kelton at least two (2) business days prior
to the Closing Date.
5.2 Whether or not the transactions contemplated hereby and by the
Purchase Agreements shall be consummated, the Company shall pay all
costs and expenses in connection with (i) the preparation and
reproduction of the Private Placement Memorandum, the SEC Documents (to
the extent that full copies are not supplied directly by the Company),
the certificates representing the Shares, (ii) the reproduction of the
Purchase Agreements, (iii) the Company's performance of and compliance
with all agreements and conditions contained herein and in the Purchase
Agreements, (iv) the expenses of listing the Shares for trading on The
NASDAQ Stock Market and (v) the fees, disbursements and expenses of the
Company's legal counsel and accountants.
5.3 Whether or not the transactions contemplated hereby and by the
Purchase Agreements shall be consummated, the Company shall pay on
behalf of or reimburse Kelton for all of the reasonable out-of-pocket
expenses incurred by Kelton not in the normal course of business in
connection with the offering, including the reasonable fees,
disbursements and expenses of Kelton's legal counsel, up to an aggregate
amount, absent further prior approval, of $120,000. Such payment or
reimbursement of such expenses shall be made by the Company on
production of suitable documentation thereof by Kelton.
5.4 Kelton shall bear all of its own expenses in excess of Kelton's
$120,000. Reimbursement of Kelton's expenses shall be made by the
Company ten (10) days after demand is made therefor. If the Closing Date
shall occur, the Company shall pay to Kelton on the Closing Date the
amount of one hundred and twenty thousand United States dollars
($120,000) less the aggregate amounts previously demanded and paid in
partial
<PAGE>
III/912117 -7-
reimbursement of the expenses of Kelton. Within thirty (30) days after
the Registration Statement has become effective, Kelton shall provide to
the Company a breakdown in reasonable detail of Kelton's expenses
described in section 5.3 hereof. In the event that such expenses are
less than $120,000, Kelton shall refund the difference to the Company
within thirty (30) days after the Registration Statement has become
effective.
6. Conditions of Kelton's Obligation
The obligation of Kelton hereunder to place the Shares
is subject to the accuracy of the representations and warranties of the
Company herein and in the Purchase Agreements, to the performance by the
Company of its obligations hereunder, and to the following further
conditions:
6.1 The conditions to the obligations of the Purchasers set forth in
section 1.7 of each Purchase Agreement shall have been satisfied in all
material respects.
6.2 All documents incident hereto and to the Purchase Agreements shall
be reasonably satisfactory in form and substance to Kelton and its
counsel, and Kelton and its counsel shall have received such
information, certificates and documents as they may reasonably request.
7. Manner of Offers and Sales of the Shares
7.1 The offers and sales of the Shares are to be effected pursuant to
the exemption from the registration requirements of the Securities Act
pursuant to Regulation S thereunder. The Company and Kelton have
established the following procedures in connection with the offer and
sale of the Shares:
7.1.1 Each offer and sale of the Shares shall be made only
in an "offshore transaction" (as defined in
Regulation S) and to investors who are not "U.S.
persons" (as defined in Regulation S);
7.1.2 no offer or sale of any of the Shares shall be made
in the United States or to, or for the account or
benefit of, any "U.S. person" (as defined in
Regulation S);
7.1.3 no "directed selling efforts" (as defined in
Regulation S) in respect of the Shares shall be made
in or directed toward the United States;
7.1.4 "offering restrictions" (as defined in Regulation
S) in respect of the Shares shall be implemented;
7.1.5 each Purchaser of the Shares shall be furnished with
an Private Placement Memorandum prepared by the
Company, together with any amendments thereof and
supplements thereto as shall have been prepared by the
Company, which describes, among other things, (A) the
Shares, (B) such summary financial and business
information concerning the Company as is considered
appropriate and (C) the restrictions on resale of the
Shares;
7.1.6 no Private Placement Memorandum (or any revision or
amendment thereof or supplement thereto) shall be
delivered to any "U.S. person" (as defined in
Regulation S);
7.1.7 the Company agrees to furnish Kelton with such number
of copies of the Private Placement Memorandum and any
revision or amendment thereof or supplement thereto as
Kelton may require in connection with the placement of
the Shares; and
<PAGE>
III/912117 -8-
7.1.8 each Purchaser of the Shares shall be required to
execute and deliver a Purchase Agreement which shall
contain, among other things, restrictions on resale of
the Shares otherwise than in compliance with the
Securities Act and the rules and regulations of the
Commission thereunder.
7.2 Kelton hereby represents, warrants and covenants with the Company
that Kelton and any person acting on behalf of, or as agent of, any of
Kelton, shall, whether as principal or agent, (i) comply with the
procedures set forth in section 7.1 hereof, (ii) offer and sell the
Shares to the Purchasers only in an "offshore transaction" (as defined
in Regulation S), (iii) not engage with respect to the Shares in any
"directed selling efforts" (as defined in Regulation S) in or directed
toward the United States, (iv) comply with all "offering restrictions"
(as defined in Regulation S) in respect of the Shares, (v) not deliver
the Private Placement Memorandum or any revision or amendment thereof or
supplement thereto to any "U.S. person" (as defined in Regulation S),
(vi) not make any offers or sales of any of the Shares or any interest
therein in the United States or to, or for the account or benefit of,
any "U.S. person" (as defined in Regulation S), (vii) comply with all
laws and regulations of those jurisdictions in which the Shares are
offered or sold which are applicable to the offer and sale of the
Shares, and (viii) on or prior to the Closing Date, send to each person
who is acting on behalf of Kelton a written confirmation or other notice
to the effect that such person is subject to the same restrictions on
offers and sales that apply to Kelton.
7.3 The Company hereby represents, warrants and covenants with Kelton
that the Company, its affiliates, and any person acting on behalf of, or
as agent of, any of the foregoing, shall, whether as principal or agent,
(i) comply with the procedures set forth in section 7.1 hereof, (ii)
offer and sell the Shares to the Purchasers only in an "offshore
transaction" (as defined in Regulation S), (iii) not engage with respect
to the Shares in any "directed selling efforts" (as defined in
Regulation S) in or directed toward the United States, (iv) comply with
all "offering restrictions" (as defined in Regulation S) in respect of
the Shares, (v) not deliver the Private Placement Memorandum or any
revision or amendment thereof or supplement thereto to any "U.S. person"
(as defined in Regulation S), (vi) not make any offers or sales of any
of the Shares or any interest therein in the United States or to, or for
the account or benefit of, any "U.S. person" (as defined in Regulation
S), and (vii) not make any offers or sales of any of the Shares or any
interest therein to any person other than the Purchasers; provided,
however, that insofar as this representation and warranty involves
Kelton or any officer, director, employee or agent of Kelton, to the
extent Kelton is acting as placement agent for the Shares, such
representation and warranty is made by the Company solely on the basis
of and in reliance upon the representations and warranties of Kelton
contained in this Placement Agent Agreement.
8. Indemnification and Contribution
8.1 For the purposes of this section 8:
8.1.1 the term "Registration Statement" shall include the
Registration Statement referred to in section 3.9
hereof and any final prospectus, exhibit or amendment
included in or relating to the Registration Statement
referred to in section 3.9 hereof, including all
documents incorporated by reference in the
Registration Statement except that the Registration
Statement shall not refer to any final prospectus at
any time when it has been superseded by a current
prospectus filed as part of any Amendment to the
Registration Statement; and
8.1.2 the term "untrue statement" shall mean any
misstatement of and any omission to state in the
Private Placement Memorandum (including any revision,
amendment or supplement thereof) or the Registration
Statement a material fact required to be stated
therein or necessary to make
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III/912117 -9-
the statements therein, in the light of the
circumstances under which they were made, not
misleading; and
8.1.3 the term "Company Information" means any
information contained under the headings "Selected
Consolidated Financial Data", "Summary", "Summary
Pro Forma Information", "Carolina First Corporation",
"Price Range of Common Stock and Dividends" (only
to the extent of the first and last paragraphs
thereof), "Capitalization", "Management's Discussion
and Analysis of Financial Condition and Results of
Operations", "Business of Carolina First
Corporation", "Management", "Information Concerning
Ownership of Common Stock", "Description of Capital
Stock", and the financial statements contained in
the Private Placement Memorandum or to be contained
in the Registration Statement.
8.2 The Company agrees to indemnify and hold harmless Kelton (and each
person, if any, who controls Kelton within the meaning of section 15 of
the Securities Act and each director of Kelton) from and against any and
all losses, claims, damages or liabilities to which Kelton (or such
controlling person or director) may become subject (under the Securities
Act or otherwise) insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement contained in or
incorporated by reference in the Company Information contained in the
Private Placement Memorandum, or in any revision or amendment thereof or
supplement thereto, or in the Registration Statement or in any
prospectus or amendment or supplement thereto, or arise out of or are
based upon, or arise out of or are based upon any breach by the Company
(or any person who controls the Company within the meaning of section 15
of the Securities Act, any director of the Company or any agent of the
Company, other than Kelton) of any covenants of the Company contained in
section 7 hereof, the violation of which has caused the exemption from
registration provided by Regulation S to become unavailable with respect
to the Shares, and the Company agrees to reimburse such indemnified
party for any legal or other out-of-pocket expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue
statement made therein in reliance upon and in conformity with written
information furnished to the Company by Kelton specifically for use in
the Private Placement Memorandum or any revision or amendment thereof or
supplement thereto, or in the Registration Statement or in any
prospectus or amendment or supplement thereto, and (ii) such indemnity
with respect to the Private Placement Memorandum shall not inure to the
benefit of Kelton (or such controlling person or director of Kelton) if
the person asserting any such loss, claim, damage or liability purchased
the Shares that are the subject thereof and did not receive a copy of
the Private Placement Memorandum (or the Private Placement Memorandum as
then amended, revised or supplemented) at or prior to the confirmation
of the sale of such Shares to such person in any case where any such
untrue statement or omission of a material fact contained in the Private
Placement Memorandum was subsequently corrected by amendment, revision
or supplement, and Kelton (or such controlling person) would not have
been liable had a copy of such Private Placement Memorandum, as so
corrected, been so received. This indemnity agreement will be in
addition to any liability that the Company may otherwise have.
8.3 Kelton agrees to indemnify and hold harmless the Company (and each
person, if any who controls the Company within the meaning of section 15
of the Securities Act and each director of the Company) from and against
any and all losses, claims, damages or liabilities to which the Company
(or such controlling person or director) may become subject (under the
Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement contained in the
Private Placement Memorandum, or in any revision or amendment thereof or
supplement thereto, or in the Registration Statement or in any
prospectus or amendment or supplement thereto, or arise out of or are
based upon any untrue statement or alleged untrue statement, in each
case to the extent, but only
<PAGE>
III/912117 -10-
to the extent, that such untrue statement or alleged untrue statement
was made in reliance upon and in conformity with written information
furnished to the Company by Kelton specifically for use in the Private
Placement Memorandum or any revision or amendment thereof or supplement
thereto, or in the Registration Statement or in any prospectus or
amendment or supplement thereto, or arise out of or are based upon any
breach by Kelton (or any person who controls Kelton within the meaning
of section 15 of the Securities Act, any director of Kelton, or any
agent of Kelton) of any covenant of Kelton contained in section 7
hereof, the violation of which has caused the exemption from
registration provided by Regulation S to become unavailable with respect
to the Shares, and Kelton agrees to reimburse such indemnified party for
any legal or other out-of-pocket expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage
or liability or action as such expenses are incurred. This indemnity
agreement will be in addition to any liability that Kelton may otherwise
have.
8.4 Promptly after receipt by an indemnified party under this section 8
of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party under this section 8, notify the indemnifying party
in writing of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve the indemnifying party from any
liability that it may have to any indemnified party otherwise than under
this section 8. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may elect by written
notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defence
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defence thereof, the indemnifying party will not be liable to
such indemnified party under this section 8 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defence thereof other than reasonable costs of investigation.
If the indemnifying party does not elect to assume the defence of any
such claim, action or proceeding, the indemnifying party shall not be
liable for any settlement thereof which is effected without its prior
written consent. Without the prior written consent of the indemnified
party, no indemnifying party shall agree to the settlement of any such
claim, action or proceeding if the effect thereof would be to find the
indemnified person has violated the Securities Act, Exchange Act, or any
state securities or blue sky laws.
8.5 If recovery is not available under the foregoing indemnification
provisions of this section 8 for any reason other than as specified
therein, the parties entitled to indemnification by the terms thereof
shall be entitled to contribution toward the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or
liabilities referred to in sections 8.2, 8.3 or 8.4 hereof, except that
no person guilty of fraudulent misrepresentation (within the meaning of
section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not also guilty of such fraudulent
misrepresentation. In determining the amount of contribution to which
the respective parties are entitled, there shall be considered the
relative benefits received by each party from the offering of the
Shares, the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any untrue statement or alleged
untrue statement, and any other equitable considerations appropriate
under the circumstances. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this section 8.5 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim that is
the subject of this section 8.5.
8.6 The obligations of the Company and Kelton under this section 8 shall
survive any termination of this Placement Agent Agreement, in whole or
in part.
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9. Termination of this Placement Agent Agreement
In the event the Company does not perform any of its
obligations under this Placement Agent Agreement on its part to be
performed or any representation and warranty of the Company hereunder is
incomplete or inaccurate, this Placement Agent Agreement and all of
Kelton's obligations hereunder may be immediately cancelled by Kelton by
notice thereof to the Company . Any such cancellation shall be without
liability of any party to any other party except that the provisions of
sections 5 and 8 hereof shall survive any such cancellation.
10. Representations and Warranties of the Company
The Company represents and warrants to, and agrees with,
Kelton that:
10.1 The Private Placement Memorandum as of its date and at the Closing
Date, and any revision or amendment thereof and supplement thereto, as
of their respective dates and at the Closing Date, and the Registration
Statement and the prospectus thereto and any amendment thereof and
supplement thereto, as of their respective dates, did not and will not
as of such dates, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by Kelton expressly for use therein.
10.2 Neither the Company or any affiliate of the Company nor anyone
acting on the behalf of the Company or any such affiliate, other than
Kelton, has, directly or indirectly, offered or sold, or attempted to
offer, sell or dispose of, any of the Shares, or solicited any offer to
buy any Shares from, or otherwise approached or negotiated with respect
thereto with, any person.
10.3 The execution, delivery and performance of this Placement Agent
Agreement by the Company (i) has been duly authorized by all requisite
corporate action of the Company, and (ii) will not violate (A) the
Certificate of Incorporation or By-laws of the Company or (B) any law
applicable to the Company or any of its subsidiaries or any rule,
regulation or order of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or (C) any
provision of any indenture, mortgage, agreement, contract or other
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the properties or assets of the Company or any of its subsidiaries
are subject, or be in conflict with, or result in a breach of or
constitute (upon notice or lapse of time or both) a default under any
such indenture, mortgage, agreement, contract or other instrument or
result in the creation or imposition of any claim, lien, security
interest, mortgage, pledge, charge or other encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or any of
its subsidiaries (except for such violation or conflict described in
(ii)(C) hereof which would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole). Upon execution and
delivery by the Company and the Placements Agent, this Placement Agent
Agreement will constitute the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be limited by any applicable
bankruptcy, insolvency, reorganization or other similar laws relating to
or affecting the enforcement of creditors' rights generally and by
general equitable principles, regardless of whether such enforceability
is considered in a proceeding in equity or at law and except as rights
to indemnity or contribution may be limited under applicable law.
11. Representations, Warranties and Agreements to Survive Delivery
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III/912117 -12-
All representations, warranties and agreements
contained in this Placement Agent Agreement, or contained in
certificates of officers of the Company submitted pursuant hereto, shall
remain operative and in full force and effect, regardless of any
investigation made by or on behalf of Kelton or any controlling person,
or by or on behalf of the Company or any controlling person, director or
officer of the Company, and shall survive delivery of the Shares to the
Purchasers.
12. Notices
All communications provided for or permitted hereunder
shall be in writing and shall be deemed to have been duly given if
personally delivered, sent by courier or mailed by registered or
international recorded mail, postage prepaid and return receipt
requested, or transmitted by telefax, telex or telegraph and confirmed
by a similar mailed writing, if to Kelton, addressed to Kelton at 35
Curzon Street, London W1Y 7AE, England, Attention: Robin C. Kelton, or,
to such other address as Kelton may designate in writing to the Company,
and, if to the Company, addressed to Carolina First Corporation at 102
S. Main Street, Greenville, South Carolina 29601, United States of
America, Attention: Mack I. Whittle, Jr., President and Chief Executive
Officer or to such other address as the Company may designate in writing
to Kelton.
13. Parties
This Placement Agent Agreement shall inure to the
benefit of and be binding upon Kelton and the Company and their
respective successors. Nothing expressed herein is intended or shall be
construed to give any person other than the persons referred to in the
preceding sentence any legal or equitable right, remedy or claim under
or in respect of this Placement Agent Agreement. This Placement Agent
Agreement and all conditions and provisions hereof are intended to be
for the sole and exclusive benefit of the parties hereto and their
respective successors and for the benefit of no other person except as
may be otherwise agreed by the parties hereto. No Purchaser of Shares
from the Company shall be deemed to be a successor by reason merely of
such purchase.
14. Miscellaneous
This Placement Agent Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the
matters and transactions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions. Neither this Placement Agent Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought. References to
sections and sub-sections refer to this Placement Agent Agreement unless
expressly stated otherwise. The headings in this Placement Agent
Agreement are for the purposes of reference only and shall not limit or
otherwise affect the meaning hereof. This Placement Agent Agreement may
be executed in counterparts, each of which shall constitute an original,
but all of which shall together constitute one instrument.
15. Governing Law
This Placement Agent Agreement shall be governed by
and construed in accordance with the internal laws of the State of South
Carolina without regard to the conflict of laws provisions thereof.
<PAGE>
III/912117 -13-
If the foregoing is in accordance with your
understanding, kindly sign and return to us the enclosed duplicate
hereof, whereupon it will become a binding agreement between the
undersigned in accordance with its terms.
Very truly yours,
CAROLINA FIRST CORPORATION
By: /s/ Mack I. Whittle, Jr.
__________________________
Name: Mack I. Whittle, Jr.
Title: President and Chief Executive Officer
The foregoing Placement Agent Agreement is hereby confirmed and accepted
as of the date first hereof written:
KELTON INTERNATIONAL LIMITED
By: /s/ Robin C. Kelton
____________________________
Name: Robin C. Kelton
Title: Chairman
