<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
PREMIER BANCSHARES, INC. PREMIER CAPITAL TRUST I
(Exact name of registrant and co-registrant as specified in their charters)
GEORGIA DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
58-1793778 APPLIED FOR
(I.R.S. Employer Identification (I.R.S. Employer Identification
No.) No.)
2180 Atlanta Plaza 2180 Atlanta Plaza
950 E. Paces Ferry Road 950 E. Paces Ferry Road
Atlanta, Georgia 30326 Atlanta, Georgia 30326
(404) 814-3090 (404) 814-3090
(Address(es), including zip code(s), and telephone number(s), including area
code(s), of registrant's and
co-registrant's principal executive offices)
Darrell D. Pittard Darrell D. Pittard
Premier Bancshares, Inc. Premier Capital Trust I
2180 Atlanta Plaza 2180 Atlanta Plaza
950 E. Paces Ferry Road 950 E. Paces Ferry Road
Atlanta, Georgia 30326 Atlanta, Georgia 30326
(404) 814-3090 (404) 814-3090
(Name, address, including ZIP (Name, address, including ZIP
Code and Code and
telephone number, including area telephone number, including area
code, of agent for service) code, of agent for service)
--------------
COPIES TO:
Steven S. Dunlevie Frank M. Conner III
Elizabeth O. Derrick Jonathan H. Talcott
WOMBLE CARLYLE SANDRIDGE & RICE, ALSTON & BIRD LLP
PLLC 601 Pennsylvania Avenue, N.W.
1275 Peachtree Street, N.E., North Building, Suite 250
Suite 700, Washington, D.C. 20004-2601
Atlanta, Georgia 30309-3574 (202) 508-3300
(404) 872-7000 --------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effectiveness of this Registration Statement.
--------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act") other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE OFFERING PRICE PER OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) UNIT PRICE(2) FEE(3)
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<S> <C> <C> <C> <C>
Preferred Securities of
Premier Capital Trust
I..................... 1,150,000 $25.00 $28,750,000 $8,712
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Subordinated Debentures
of Premier Bancshares,
Inc.(4)............... (5) -- -- --
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Premier Bancshares,
Inc.'s Guarantee of
Preferred
Securities(5)......... (5) -- -- --
</TABLE>
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(1) Includes 150,000 % Cumulative Preferred Trust Securities (the "Preferred
Securities") which may be sold to cover over-allotments.
(2) Such amount represents the aggregate liquidation amount of the Preferred
Securities to be issued hereunder and the principal amount of Subordinated
Debentures that may be distributed to holders of Preferred Securities upon
any liquidation of Premier Capital Trust I.
(3) The registration fee is calculated in accordance with Rule 457.
(4) The Subordinated Debentures to be issued by the Company will be purchased
by Premier Capital Trust I with the proceeds of the sale of the Preferred
Securities. The Subordinated Debentures may later be distributed for no
additional consideration to the holders of the Preferred Securities of
Premier Capital Trust I upon its dissolution and the distribution of its
assets.
(5) This Registration Statement is deemed to cover the Subordinated Debentures
of the Company under the Indenture, the rights of holders of Subordinated
Debentures under the Indenture, and the rights of holders of the Preferred
Securities under the Trust Agreement, the Guarantee and the Expense
Agreement entered into by Premier Bancshares, Inc. No separate
consideration will be received for the Guarantee of Preferred Securities.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED OCTOBER 22, 1997.
PROSPECTUS
1,000,000 PREFERRED SECURITIES
PREMIER CAPITAL TRUST I
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25.00 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
[LOGO OF PREMIER BANCSHARES APPEARS HERE]
PREMIER BANCSHARES, INC.
The % Cumulative Trust Preferred Securities (the "Preferred Securities")
offered hereby represent preferred undivided beneficial interests in the assets
of Premier Capital Trust I, a statutory business trust created under the laws
of the State of Delaware ("Premier Capital Trust"). Premier Bancshares, Inc., a
Georgia corporation (the "Company"), will own all of the common
(Continued on next page)
Application has been made to have the Preferred Securities approved for
quotation on the American Stock Exchange, Inc., under the symbol "PMB.PR."
SEE "RISK FACTORS" COMMENCING ON PAGE 12 FOR A DISCUSSION OF CERTAIN RISK
FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE PURCHASERS OF THE PREFERRED
SECURITIES OFFERED HEREBY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE SECURITIES OFFERED BY THIS PROSPECTUS ARE NOT SAVINGS OR DEPOSIT ACCOUNTS,
ARE NOT OBLIGATIONS OF OR GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE
OF THE COMPANY (EXCEPT TO THE EXTENT THAT PREFERRED SECURITIES ARE
GUARANTEED BY THE COMPANY AS DESCRIBED HEREIN), ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENT AGENCY AND
INVOLVE INVESTMENT RISKS, INCLUDING POSSIBLE LOSS OF PRINCIPAL.
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<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO PREMIER
PUBLIC(1) COMMISSION(2) CAPITAL TRUST(3)(4)
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<S> <C> <C> <C>
Per Preferred Security...... $25.00 (3) $25.00
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Total (5)................... $25,000,000 (3) $25,000,000
</TABLE>
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(1) Plus accumulated Distributions (as defined herein), if any, from the Issue
Date (as defined herein).
(2) Premier Capital Trust and the Company have each agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the Preferred
Securities will be invested in the Subordinated Debentures, the Company has
agreed to pay the Underwriters as compensation for their arranging the
investment therein of such proceeds, $1.00 per Preferred Security, or
$1,000,000 in the aggregate. See "Underwriting."
(4) Before deducting expenses of the offering which are payable by the Company,
estimated to be $350,000.
(5) Premier Capital Trust and the Company have granted the Underwriters an
option, exercisable within 30 days from the date of this Prospectus, to
purchase up to 150,000 additional Preferred Securities on the same terms
and conditions set forth above solely to cover over-allotments, if any. If
the option is exercised in full, the total Price to Public, Underwriting
Commission and Proceeds to Premier Capital Trust will be $28,750,000,
$1,150,000 and $28,750,000, respectively. See "Underwriting."
-----------
The Preferred Securities are offered, by the Underwriters subject to receipt
and acceptance by them, to prior sale and to the Underwriters' right to reject
any order in whole or in part and to withdraw, cancel or modify the offer
without notice. It is expected that delivery of the Preferred Securities will
be made on or about , 1997.
-----------
J.C.Bradford & Co.
Interstate / Johnson Lane
Corporation
Sterne Agee & Leach,Inc.
, 1997
<PAGE>
(Continued from previous page)
securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing undivided beneficial
interests in the assets of Premier Capital Trust. State Street Bank & Trust
Company ("State Street") is the Property Trustee (as defined herein) of
Premier Capital Trust. Premier Capital Trust exists for the purpose of issuing
the Preferred Securities and investing the proceeds thereof in an equivalent
amount of % Subordinated Debentures (the "Subordinated Debentures") of the
Company. The Subordinated Debentures will mature on December 31, 2027 (the
"Stated Maturity"). The Preferred Securities will have a preference over the
Common Securities under certain circumstances with respect to cash
distributions and amounts payable on liquidation, redemption or otherwise over
the Common Securities. See "Description of the Preferred Securities--
Subordination of Common Securities."
Holders of Preferred Securities are entitled to receive cumulative cash
distributions, at the annual rate of % of the liquidation amount of $25.00
per Preferred Security (the "Liquidation Amount"), accruing from the date of
original issuance (the "Issue Date") and payable quarterly in arrears on the
last day of March, June, September and December of each year, commencing
December 31, 1997 (the "Distributions"). The Company has the right, so long as
no Debenture Event of Default (as defined herein) has occurred and is
continuing, to defer payment of interest on the Subordinated Debentures at any
time or from time to time for a period not to exceed 20 consecutive quarters
with respect to each deferral period (each, an "Extended Interest Payment
Period"); provided that no Extended Interest Payment Period shall end on a day
other than an Interest Payment Date (as defined herein) or extend beyond the
Stated Maturity. Upon the termination of any such Extended Interest Payment
Period and the payment of all amounts then due, the Company may elect to begin
a new Extended Interest Payment Period subject to the requirements set forth
herein. If interest payments on the Subordinated Debentures are so deferred,
distributions on the Preferred Securities will also be deferred, and the
Company will not be permitted, subject to certain exceptions described herein,
to declare or pay any cash distributions with respect to its capital stock or
debt securities that rank pari passu with or junior to the Subordinated
Debentures. During an Extended Interest Payment Period, interest on the
Subordinated Debentures will continue to accrue (and the amount of
distributions to which holders of the Preferred Securities are entitled will
continue to accumulate) at the rate of % per annum, compounded quarterly, and
holders of the Preferred Securities will be required to include interest
income in their gross income for United States federal income tax purposes in
advance of receipt of the cash distributions with respect to such deferred
interest payments. A Holder of Preferred Securities that disposes of its
Preferred Securities between record dates for payments of distributions (and
consequently does not receive a distribution from Premier Capital Trust for
the period prior to such disposition) will nevertheless be required to include
accrued but unpaid interest on the Subordinated Debentures through the date of
disposition in income as ordinary income and to add such amount to its
adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. See "Description of the Subordinated
Debentures--Option to Extend Interest Payment Period," "Material Federal
Income Tax Consequences--Potential Extension of Interest Payment Period and
Original Issue Discount" and "--Disposition of Preferred Securities."
The Company and Premier Capital Trust believe that, taken together, the
obligations of the Company under the Guarantee, the Trust Agreement, the
Subordinated Debentures, the Indenture and the Expense Agreement (each as
defined herein), provide, in the aggregate, a full, irrevocable and
unconditional guarantee, on a subordinated basis, of all of the obligations of
Premier Capital Trust under the Preferred Securities. See "Relationship Among
the Preferred Securities, the Subordinated Debentures and the Guarantee--Full
and Unconditional Guarantee." The Guarantee of the Company guarantees the
payment of Distributions and payments on liquidation or redemption of the
Preferred Securities, but only in each case to the extent of funds held by
Premier Capital Trust, as described herein. See "Description of the
Guarantee--General." If the Company does not make interest payments on the
Subordinated Debentures held by Premier Capital Trust, Premier Capital Trust
will have insufficient funds to pay Distributions on the Preferred Securities.
The Guarantee does not cover payments of Distributions when Premier Capital
Trust does not have sufficient funds to pay such Distributions. In such event,
a holder of Preferred Securities may institute a legal proceeding directly
against the Company pursuant to the terms of the Indenture to force payments
of amounts equal to such Distributions to
<PAGE>
(Continued from previous page)
such holder. See "Description of the Subordinated Debentures--Enforcement of
Certain Rights by Holders of the Preferred Securities." The obligations of the
Company under the Guarantee and the Preferred Securities are subordinate and
junior in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations (each as defined herein) of the Company. The
Subordinated Debentures are unsecured obligations of the Company and are
subordinated to all Senior Debt, Subordinated Debt and Additional Senior
Obligations of the Company.
The Preferred Securities are subject to mandatory redemption, in whole or in
part, upon repayment of the Subordinated Debentures at maturity or their
earlier redemption. Subject to approval of the Board of Governors of the
Federal Reserve System (the "Federal Reserve"), if then required under
applicable capital guidelines or policies of the Federal Reserve, the
Subordinated Debentures are redeemable prior to maturity at the option of the
Company (i) on or after December 31, 2007 in whole at any time or in part from
time to time, or (ii) at any time, in whole (but not in part), within 180 days
following the occurrence of a Tax Event, Capital Event or an Investment
Company Event (each as defined herein), in each case at a redemption price
equal to the accrued and unpaid interest on the Subordinated Debentures so
redeemed to the date fixed for redemption, plus 100% of the principal amount
thereof. See "Description of Preferred Securities--Redemption or Exchange."
The Company has the right at any time to dissolve, wind-up or terminate
Premier Capital Trust subject to the Company's having received prior approval
of the Federal Reserve to do so if then required under applicable capital
guidelines or policies of the Federal Reserve. In the event of the voluntary
or involuntary dissolution, winding up or termination of Premier Capital
Trust, after satisfaction of liabilities to creditors of Premier Capital Trust
as required by applicable law, the holders of Preferred Securities will be
entitled to receive a Liquidation Amount of $25.00 per Preferred Security,
plus accumulated and unpaid Distributions thereon to the date of payment,
which may be in the form of a distribution of such amount of a Subordinated
Debenture having an aggregate principal amount equal to the Liquidation Amount
of such Preferred Securities (and carrying with it accumulated interest in an
amount equal to the accumulated and unpaid Distributions then due on such
Preferred Securities), subject to certain exceptions. See "Description of
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination."
----------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE PREFERRED
SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL
IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
<PAGE>
AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and Premier Capital Trust with the Commission
under the Securities Act of 1933 as amended (the "Securities Act") with
respect to the Preferred Securities and the Subordinated Debentures. This
Prospectus does not contain all of the information set forth in such
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission, although it does include a
summary of the material terms of the Indenture and the Trust Agreement.
Reference is made to such Registration Statement and to the exhibits relating
thereto for further information with respect to the Company, Premier Capital
Trust, the Preferred Securities and the Subordinated Debentures. Any
statements contained herein concerning the provisions of any document filed as
an exhibit to the Registration Statement or otherwise filed with the
Commission or incorporated by reference herein are not necessarily complete,
and, in each instance, reference is made to the copy of such document so filed
for a more complete description of the matter involved. Each such statement is
qualified in its entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 as amended (the "Exchange Act") and, in accordance
therewith, files reports, proxy statements and other information with the
Commission. Premier Capital Trust is not currently subject to the information
reporting requirements of the Exchange Act and although Premier Capital Trust
will become subject to such requirements upon the effectiveness of the
Registration Statement, it is not expected that Premier Capital Trust will be
filing separate reports under the Exchange Act. The Company's reports, proxy
statements and other information can be inspected and copied at the following
public reference facilities maintained by the Commission: 450 Fifth Street,
N.W., Washington, D.C. 20549; 7 World Trade Center, Suite 1300, New York, New
York 10048; and the Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such material may also be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, upon payment of prescribed rates. The
Company's common stock is listed on the American Stock Exchange, Inc., 86
Trinity Place, New York, New York 10006-1881 under the symbol "PMB." The
Commission maintains an Internet web site that contains reports, proxy and
information statements and other information regarding issuers who file
electronically with the Commission. The address of that site is
http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the
American Stock Exchange, Inc.
No separate financial statements of Premier Capital Trust have been included
herein. The Company does not consider that such financial statements would be
material to holders of Preferred Securities because (i) all of the voting
securities of Premier Capital Trust will be owned by the Company, a reporting
company under the Exchange Act, (ii) Premier Capital Trust has no independent
operations but exists for the sole purpose of issuing securities representing
undivided beneficial interests in the assets of Premier Capital Trust and
investing the proceeds thereof in Subordinated Debentures issued by the
Company, and (iii) the obligations of the Company described herein to provide
certain indemnities in respect of and be responsible for certain costs,
expenses, debts and liabilities of Premier Capital Trust under the Indenture
and pursuant to the Trust Agreement, the Guarantee issued by the Company with
respect to the Preferred Securities, the Subordinated Debentures purchased by
Premier Capital Trust and the related Indenture, taken together, constitute,
in the belief of the Company and Premier Capital Trust, a full and
unconditional guarantee of payments due on the Preferred Securities. See
"Description of the Subordinated Debentures" and "Description of the
Guarantee."
1
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Company with the Commission
pursuant to Section 13 of the Exchange Act, are incorporated herein by
reference:
(a) the Company's Annual Report on Form 10-K, as amended by the Company's
Form 10-K/A, for the year ended December 31, 1996;
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, and June 30, 1997 of the Company (which Quarterly
Report on Form 10-Q for June 30, 1997 includes (i) restated interim
financial statements giving effect to the combination of Central and
Southern Holding Company ("Central and Southern") with the Company,
accounted for as a pooling of interests, and (ii) management's
discussion and analysis of financial condition and results of
operations of the Company, giving effect to the combination of Central
and Southern with the Company, accounted for as a pooling of
interests);
(c) the Company's Current Reports on Form 8-K dated June 23, 1997 and Form
8-K/A dated August 27, 1997 (which includes pro forma consolidated
financial statements of the Company, giving effect to the combination
of Central and Southern with the Company, accounted for as a pooling of
interests); and
(d) the Company's Current Report on Form 8-K dated October 20, 1997 (which
includes (i) supplemental pro forma consolidated financial statements
of the Company giving effect to the combination of Citizens Gwinnett
Bankshares, Inc. with the Company, accounted for as a pooling of
interests, and (ii) restated annual financial statements of the Company
giving effect to the combination of Central and Southern with the
Company, accounted for as a pooling of interests).
All reports and any definitive proxy or information statements filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Preferred Securities offered hereby shall
be deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in
documents incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus. In particular, reference is made to the
Company's Current Report on Form 8-K dated October 20, 1997, which includes
(i) supplemental pro forma consolidated financial statements, giving effect to
the combination of Citizens Gwinnett Bankshares, Inc. with the Company and
(ii) restated financial statements of the Company giving effect to the
combination of Central and Southern with the Company, accounted for as a
pooling of interests. See "Prospectus Summary" and "The Company--Recent
Developments."
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the documents incorporated herein by reference (other
than exhibits to such documents which are not specifically incorporated by
reference in such documents). Written requests for such copies should be
directed to Michael E. Ricketson, Executive Vice President and Chief Financial
Officer, Premier Bancshares, Inc., 2180 Atlanta Plaza, 950 E. Paces Ferry
Road, Atlanta, Georgia 30326. Telephone requests may be directed to (404) 814-
3090.
2
<PAGE>
[MAP SHOWING LOCATION OF PREMIER BANCSHARES, INC.
AND SUBSIDIARY OFFICE LOCATIONS]
3
<PAGE>
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus. Unless otherwise indicated,
the information in this Prospectus does not give effect to the exercise of the
Underwriters' over-allotment option. Prospective investors should carefully
consider the information set forth under the heading "Risk Factors."
THE COMPANY
The Company, a Georgia corporation, is a bank and thrift holding company
headquartered in Atlanta, Georgia. Through its three wholly-owned financial
institution subsidiaries, Premier Bank, The Central and Southern Bank of
Georgia ("Central and Southern Bank"), and The Central and Southern Bank of
North Georgia, F.S.B. ("Central and Southern Bank of North Georgia")
(collectively, the "Banking Subsidiaries"), the Company operates 15 banking
offices located in the Atlanta metropolitan area and in northern and central
Georgia. In these markets, the Banking Subsidiaries provide a broad array of
community banking services, including: loans to small and medium-sized
businesses; residential, construction and development loans; commercial real
estate loans; consumer loans and a variety of commercial and consumer deposit
accounts.
In addition, through its wholly-owned mortgage banking subsidiary, Premier
Lending Corporation ("Premier Lending"), the Company operates eight mortgage
loan production offices in the Atlanta metropolitan area and one in each of
Jacksonville, Florida, Charleston, South Carolina, and Mobile, Alabama. Premier
Lending is a retail originator of residential mortgage loans which are sold to
correspondent mortgage investors and is an approved Federal National Mortgage
Association ("FNMA") and Federal Home Loan Mortgage Corporation ("FHLMC")
seller-servicer of mortgage loans and an approved Department of Housing and
Urban Development ("HUD") and Veterans Administration ("VA") mortgage
originator.
The following information summarizes certain selected consolidated financial
information of the Company for the periods presented. For complete financial
information concerning the Company see "Available Information," "Documents
Incorporated by Reference" and "Selected Consolidated Financial Data."
<TABLE>
<CAPTION>
FOR THE
SIX MONTHS
AS OF THE YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------------------- ------------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- -------- -------- -------- -------- --------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Total assets............ $413,484 $385,483 $355,523 $445,374 $519,944 $476,674 $587,424
Net income (loss)....... (2,829) 198 1,908 4,548 5,494 2,959 4,088
Net income (loss) per
share.................. (0.47) 0.03 0.25 0.57 0.68 0.37 0.51
Total shareholders' eq-
uity................... 31,981 37,234 37,038 46,090 47,180 45,738 50,355
Return on average equi-
ty..................... (8.49)% 0.57% 5.09% 10.46% 11.90% 12.88% 17.44%
Return on average as-
sets................... (0.65) 0.05 0.51 1.11 1.17 1.28 1.52
</TABLE>
The Company is a locally-focused, community-oriented financial services
holding company with several specialized lines of business such as commercial
finance (including asset-based loans), Small Business Administration ("SBA")
lending, residential construction lending, residential mortgage loan
origination and commercial real estate mortgage loan origination. The Company's
extensive knowledge of both its product lines and local markets allows it to
compete effectively with larger institutions by offering a wide range of
products while maintaining strong community relationships and name recognition
within its markets. In addition, management believes that there continues to be
increased opportunities in the retail and small commercial loan product market
as larger competitors focus on the higher dollar and volume loan product
markets.
4
<PAGE>
The Company's objective is to be the preeminent provider of banking services
for small and medium-sized businesses, focusing on internal growth through
branching in key markets, developing new products and cross-selling its banking
products to existing and new mortgage borrowers. In addition, management
intends to enhance shareholder value by continuing to increase its market share
through engaging in additional mergers and acquisitions of banks, bank holding
companies, thrifts, mortgage companies and insurance brokerage operations.
Acquisitions of unaffiliated financial institutions during the past two years
have been a principal source of the Company's growth. On August 31, 1996, the
Company acquired a thrift holding company then named Premier Bancshares, Inc.,
and on June 23, 1997, the Company acquired Central and Southern, a bank and
thrift holding company. As a result of these two transactions, the Company
added nine banking offices and approximately $329 million in assets and
approximately $260 million in deposits to its existing franchise. The
historical financial statements of the Company have been restated to give
effect to these acquisitions which were accounted for as poolings of interests.
On October 17, 1997, the Company acquired Traditional Mortgage Corporation
("Traditional"), a Georgia corporation specializing in mortgage banking, and
merged Traditional with and into Premier Lending, adding five loan production
offices to Premier Lending's existing franchise. With the consummation of the
Traditional acquisition, the Company is one of the largest volume residential
mortgage lenders based in the State of Georgia, averaging approximately $60
million in loan closings per month for the nine months ended September 30,
1997. See "The Company--Recent Developments" and "Incorporation of Certain
Documents by Reference."
Premier Bank and Central and Southern Bank are Georgia state banks, Central
and Southern Bank of North Georgia is a federal savings association, and
Premier Lending is a Georgia corporation. The principal executive offices of
the Company are located at 2180 Atlanta Plaza, 950 E. Paces Ferry Road,
Atlanta, Georgia 30326, and its telephone number at such address is (404) 814-
3090.
RECENT DEVELOPMENTS
On October 9, 1997, the Company announced its operating results for the three
and nine months ended September 30, 1997. Net income increased approximately
189% to $2.6 million, or $0.32 per share, for the three months ended September
30, 1997, from approximately $865,000, or $0.11 per share, for the three months
ended September 30, 1996. For the nine months ended September 30, 1997, the
Company reported net income of approximately $6.7 million, or $0.82 per share,
which represented approximately a 74% increase from $3.8 million, or $0.48 per
share, for the nine months ended September 30, 1996. For the three months ended
September 30, 1997, the Company's return on assets and return on equity were
1.75% and 19.98%, respectively, compared to 0.72% and 7.38%, respectively for
the three months ended September 30, 1996. The Company's return on assets and
return on equity for the nine months ended September 30, 1997 were 1.60% and
18.07%, respectively, compared to 1.09% and 11.05%, respectively, for the nine
months ended September 30, 1996. As of September 30, 1997, the Company had
total consolidated assets of approximately $587 million, total consolidated
deposits of approximately $486 million, and total consolidated shareholders'
equity of approximately $52.5 million.
On June 24, 1997, the Company entered into a definitive agreement to acquire
Citizens Gwinnett Bankshares, Inc. ("Citizens"), which management considers
probable of consummation and which is expected to close in 1997. Citizens is a
Georgia corporation and a bank holding company located in Gwinnett County,
Georgia with total consolidated assets of approximately $163 million and total
consolidated deposits of approximately $150 million as of June 30, 1997. If the
acquisition of Citizens had been consummated on June 30, 1997, the Company
would have been the fifth largest bank and thrift holding company headquartered
in the State of Georgia according to the Georgia Department of Banking and
Finance (the "Georgia Department of Banking").
PREMIER CAPITAL TRUST
Premier Capital Trust is a statutory business trust formed under Delaware law
pursuant to (i) a trust agreement, dated as of October 21, 1997, executed by
the Company, as depositor, and the trustees of Premier
5
<PAGE>
Capital Trust (together with the Property Trustee, the "Trustees"), and (ii) a
certificate of trust filed with the Delaware Secretary of State on October 21,
1997. The initial trust agreement will be amended and restated in its entirety
(as so amended and restated, the "Trust Agreement") substantially in the form
filed as an exhibit to the Registration Statement of which this Prospectus
forms a part. The Trust Agreement will be qualified as an indenture under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). Upon
issuance of the Preferred Securities, the purchasers thereof will own all of
the Preferred Securities. The Company will acquire all of the Common Securities
which will represent an aggregate liquidation amount equal to at least 3% of
the total capital of Premier Capital Trust. The Common Securities will rank
pari passu, and payments will be made thereon pro rata, with the Preferred
Securities, except that upon the occurrence and during the continuance of an
Event of Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities. See "Description of Preferred Securities--
Subordination of Common Securities." Premier Capital Trust exists for the
exclusive purposes of (i) issuing the Trust Securities representing undivided
beneficial interests in the assets of Premier Capital Trust, (ii) investing the
gross proceeds of the Trust Securities in the Subordinated Debentures and
payments thereunder issued by the Company, and (iii) engaging in only those
other activities necessary, advisable, or incidental thereto. The Subordinated
Debentures will be the only assets of Premier Capital Trust and payments under
the Subordinated Debentures will be the only revenue of Premier Capital Trust.
Premier Capital Trust has a term of 31 years, but may terminate earlier as
provided in the Trust Agreement. The principal executive office of Premier
Capital Trust is 2180 Atlanta Plaza, 950 East Paces Ferry Road, Atlanta,
Georgia 30326 and its telephone number at such address is (404) 814-3090.
6
<PAGE>
THE OFFERING
Securities 1,000,000 Preferred Securities having a Liquidation
Offered............. Amount of $25.00 per Preferred Security. The Preferred
Securities represent preferred undivided beneficial
interests in the assets of Premier Capital Trust, which
will consist solely of the Subordinated Debentures and
payments thereunder. The Company and Premier Capital
Trust have granted the Underwriters an option,
exercisable within 30 days after the date of this
Prospectus, to purchase up to an additional 150,000
Preferred Securities at the initial offering price,
solely to cover over-allotments, if any.
Payment of The Distributions payable on each Preferred Security will
Distributions....... be fixed at a rate per annum of % of the Liquidation
Amount of $25.00 per Preferred Security, will be
cumulative, will accrue from , 1997, the date of
issuance of the Preferred Securities, and will be payable
quarterly in arrears, on March 31, June 30, September 30
and December 31 of each year, commencing December 31,
1997. See "Description of the Preferred Securities--
Distributions--Payment of Distributions."
Option to Extend The Company has the right, at any time, so long as no
Interest Payment Debenture Event of Default has occurred and is
Period.............. continuing, to defer payments of interest on the
Subordinated Debentures for a period not exceeding 20
consecutive quarters; provided, that no Extended Interest
Payment Period may end on a day other than an Interest
Payment Date or extend beyond the Stated Maturity of the
Subordinated Debentures. As a consequence of the
extension by the Company of the interest payment period,
quarterly Distributions on the Preferred Securities will
be deferred (though such Distributions will continue to
accrue with interest thereon compounded quarterly, since
interest will continue to accrue and compound on the
Subordinated Debentures) during any such Extended
Interest Payment Period. During an Extended Interest
Payment Period, the Company will be prohibited, subject
to certain exceptions described herein, from declaring or
paying any cash distributions with respect to its capital
stock or debt securities that rank pari passu with or
junior to the Subordinated Debentures. Upon the
termination of any Extended Interest Payment Period and
the payment of all amounts then due, the Company may
commence a new Extended Interest Payment Period, subject
to the foregoing requirements. See "Description of
Preferred Securities--Distributions--Extended Interest
Payment Period" and "Description of the Subordinated
Debentures--Option to Extend Interest Payment Period."
Should an Extended Interest Payment Period occur, holders
of Preferred Securities will be required to include
deferred interest income in their gross income for United
States federal income tax purposes in advance of receipt
of the cash distributions with respect to such deferred
interest payments. See "Material Federal Income Tax
Consequences--Potential Extension of Interest Payment
Period and Original Issue Discount."
Ranking............. The Preferred Securities will rank pari passu, and
payments thereon will be made pro rata, with the Common
Securities except as described under "Description of
Preferred Securities--Subordination of Common
Securities." The Subordinated Debentures will be
unsecured and subordinate and junior in
7
<PAGE>
right of payment to the extent and in the manner set
forth in the Indenture. See "Description of the
Subordinated Debentures." The Guarantee will constitute
an unsecured obligation of the Company and will rank
subordinate and junior in right of payment to the extent
and in the manner set forth in the Guarantee. See
"Description of the Guarantee." In addition, because the
Company is a holding company, the Subordinated Debentures
and the Guarantee will be effectively subordinated to all
existing and future liabilities of the Company's
subsidiaries, including the Banking Subsidiaries' deposit
liabilities. See "Description of the Subordinated
Debentures--Subordination."
Optional The Preferred Securities are subject to redemption, in
Redemption.......... whole or in part, upon repayment of the Subordinated
Debentures at maturity or their earlier redemption.
Subject to Federal Reserve approval, if then required
under applicable capital guidelines or policies of the
Federal Reserve, the Subordinated Debentures are
redeemable prior to maturity at the option of the Company
(i) on or after December 31, 2007 in whole at any time or
in part from time to time, or (ii) at any time, in whole
(but not in part), within 180 days following the
occurrence of a Capital Event, Tax Event or an Investment
Company Event, in each case at the redemption price equal
to 100% of the principal amount of the Subordinated
Debenture, together with any accrued but unpaid interest
to the date fixed for redemption (the "Redemption
Price"). See "Description of the Subordinated
Debentures--Redemption or Exchange."
No Rating........... The Preferred Securities are not expected to be rated by
any rating service, nor is any other security issued by
the Company so rated.
Distribution of The Company has the right at any time to terminate the
Subordinated Preferred Securities and cause the Subordinated
Debentures.......... Debentures to be distributed to holders of Preferred
Securities in liquidation of Premier Capital Trust,
subject to the Company's having received prior approval
of the Federal Reserve to do so if then required under
applicable capital guidelines or policies of the Federal
Reserve. See "Description of the Preferred Securities--
Redemption or Exchange" and "Description of the Preferred
Securities--Liquidation Distribution Upon Termination."
Guarantee........... The Company has guaranteed the payment of Distributions
and payments on liquidation or redemption of the
Preferred Securities, but only in each case to the extent
of funds held by Premier Capital Trust, as described
herein. The Company and Premier Capital Trust believe
that, taken together, the obligations of the Company
under the Guarantee, the Trust Agreement, the
Subordinated Debentures, the Indenture and the Expense
Agreement provide, in the aggregate, a full, irrevocable
and unconditional guarantee, on a subordinated basis, of
all of the obligations of Premier Capital Trust under the
Preferred Securities. The obligations of the Company
under the Guarantee and the Preferred Securities are
subordinate and junior in right of payment to all Senior
Debt, Subordinated Debt and Additional Senior Obligations
of the Company. If the Company does not make principal or
interest payments on the Subordinated Debentures, Premier
Capital Trust will not have sufficient funds to make
distributions on the
8
<PAGE>
Preferred Securities; in which event, the Guarantee will
not apply to such Distributions until Premier Capital
Trust has sufficient funds available therefor. See
"Description of the Guarantee."
Voting Rights....... The holders of the Preferred Securities will have no
voting rights except in limited circumstances. See
"Description of the Preferred Securities--Voting Rights;
Amendment of Trust Agreement."
ERISA Prospective purchasers should consider the restrictions
Considerations...... on purchase set forth under "ERISA Considerations."
Absence of Market The Preferred Securities will be a new issue of
for the Preferred securities for which there currently is no market.
Securities.......... Although the Preferred Securities have been approved for
listing on the American Stock Exchange, subject to notice
of issuance, there can be no assurance that an active
trading market in the Preferred Securities will develop
or if one does develop, that it will be maintained.
Accordingly, there can be no assurance as to the
development or liquidity of any market for the Preferred
Securities.
American Stock The Preferred Securities have been approved for listing
Exchange............ on the American Stock Exchange, Inc. under the symbol
"PMB.PR," subject to notice of issuance.
For additional information regarding the Preferred Securities, see "Premier
Capital Trust I," "Use of Proceeds," "Description of the Preferred Securities,"
"Description of the Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated Debentures and
the Guarantee," "Material Federal Income Tax Consequences," and "ERISA
Considerations."
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities offered hereby will be
used by Premier Capital Trust to purchase the Subordinated Debentures issued by
the Company. The net proceeds to the Company from the sale of Subordinated
Debentures offered hereby are estimated to be approximately $23.7 million
($27.3 million if the Underwriters' over-allotment option is exercised in
full), after deducting the underwriting commission and estimated offering
expenses. The Company intends to use the net proceeds for general corporate
purposes, including, but not limited to, financing acquisitions, repurchasing
outstanding common stock of the Company, investing in or extending credit to
its subsidiaries, reduction of long-term debt and reduction of certain short-
term borrowings of the Company. As of the date of this Prospectus, the Company
has not entered into any agreements or understandings with respect to any
potential acquisition of the type referred to in the preceding sentence, and no
discussions or negotiations with respect to any such potential acquisition are
taking place. The precise amount and timing of the application of such net
proceeds used for such corporate purposes will depend on the funding
requirements and availability of other funds to the Company and its needs.
Pending such application by the Company, such net proceeds may be temporarily
invested in short-term interest-bearing securities. The proceeds from the
Preferred Securities will qualify as Tier 1 or core capital of the Company
under the risk-based capital guidelines of the Federal Reserve. Federal Reserve
guidelines for calculation of Tier 1 capital limit the amount of cumulative
preferred stock which can be included in Tier 1 capital to 25% of total Tier 1
capital. See "Use of Proceeds."
RISK FACTORS
Prospective purchasers of the Preferred Securities should carefully consider
the risks in connection with this offering set forth under "Risk Factors."
9
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The summary below should be read in conjunction with the financial
information included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, and Current Report on Form 8-K dated October 20, 1997 (which
includes restated financial statements of the Company giving effect to the
combination of Central and Southern with the Company, accounted for as a
pooling of interest). Interim unaudited data for the six months ended June 30,
1996 and 1997 reflect, in the opinion of management of the Company, all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of such data. Results for the six months ended June 30, 1996
and 1997 are not necessarily indicative of results which may be expected for
any other interim period or the year as a whole. The consolidated financial
data as of December 31, 1992, 1993 and 1994 and for the years ended December
31, 1992 and 1993 presented below are unaudited and are based upon the audited
year end financial information of the Company, which has a fiscal year end of
December 31 and the unaudited interim financial information of an entity
acquired by the Company which had a fiscal year end of March 31. See "Available
Information," "Incorporation of Certain Documents by Reference" and "Selected
Consolidated Financial Data."
<TABLE>
<CAPTION>
AS AND FOR THE
AS OF AND FOR THE YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
------------------------------------------------------ --------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OP-
ERATIONS DATA:
Interest income........ $ 39,345 $ 31,234 $ 27,723 $ 33,575 $ 40,252 $ 19,904 $ 23,045
Interest expense....... 21,694 15,204 13,028 16,662 20,238 9,766 11,379
--------- --------- --------- --------- --------- --------- ---------
Net interest income.... 17,651 16,030 14,695 16,913 20,014 10,138 11,666
--------- --------- --------- --------- --------- --------- ---------
Provision (negative
provision) for loan
losses................ 12,283 3,732 285 (700) (418) (229) (130)
Other income........... 3,683 4,025 4,622 9,087 13,118 5,884 8,520
Other expense.......... 13,073 16,607 16,159 20,378 26,346 12,277 14,649
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before
income tax expense
(benefit) and minority
interest.............. (4,022) (284) 2,873 6,322 7,204 3,974 5,667
Income tax expense
(benefit)............. (1,193) (482) 965 1,761 1,698 1,009 1,571
Minority interest in
net income of subsidi-
ary................... -- -- -- 13 12 6 8
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)..... $ (2,829) $ 198 $ 1,908 $ 4,548 $ 5,494 $ 2,959 $ 4,088
========= ========= ========= ========= ========= ========= =========
PER SHARE DATA:
Net income (loss)...... $ (0.47) $ 0.03 $ 0.25 $ 0.57 $ 0.68 $ 0.37 $ 0.51
Dividends declared..... 0.04 -- 0.07 0.09 0.41(1) 0.16 0.11
Book value............. 4.73 5.51 4.93 5.79 5.97 5.78 6.36
Tangible book value.... 4.54 5.32 4.85 5.48 5.61 5.41 6.02
Weighted average shares
outstanding........... 6,898,295 6,898,295 7,041,663 7,982,660 8,091,369 7,970,193 8,062,259
SELECTED BALANCE SHEET
DATA:
Total assets........... $ 413,484 $ 385,483 $ 355,523 $ 445,374 $ 519,944 $ 476,674 $ 587,424
Securities available
for sale.............. 53,609 45,785 47,254 110,311 99,732 106,379 99,706
Securities held to ma-
turity................ 64,773 77,152 56,514 -- -- -- --
Loans held for sale.... -- 4,446 26,047 25,912 24,408 30,579 40,333
Loans, net............. 250,173 201,909 184,514 240,953 306,721 277,957 371,369
Federal funds sold..... 11,327 23,065 34,179 19,217 42,896 15,070 20,138
Total deposits......... 376,482 341,850 294,848 358,927 431,898 386,424 472,356
Total borrowings....... 300 4,399 21,144 34,462 35,242 40,220 59,088
Total shareholders' eq-
uity.................. 31,981 37,234 37,038 46,090 47,180 45,738 50,355
Total liabilities...... 381,503 348,249 318,485 399,267 472,751 430,928 537,069
PERFORMANCE RATIOS:
Return on average as-
sets.................. (0.65)% 0.05% 0.51% 1.11% 1.17% 1.28% 1.52%
Return on average equi-
ty.................... (8.49) 0.57 5.09 10.46 11.90 12.88 17.44
ASSET QUALITY RATIOS:
Nonperforming
loans/total loans, net
of unearned income and
fees.................. 2.51% 1.52% 0.98% 0.44% 0.45% 0.34% 0.28%
Nonperforming
assets/total assets... 1.95 1.55 0.98 0.45 0.46 0.32% 0.29
Allowance for loan
loss/total loans, net
of unearned income and
fees.................. 2.54 3.01 2.95 2.43 2.10 2.25 1.84
Allowance for loan
loss/nonperforming
loans................. 100.90 197.57 300.43 556.36 460.91 653.84 688.35
Allowance for loan
losses/nonperforming
assets................ 80.59 104.86 161.49 302.02 276.66 424.17 411.39
Net loan charge-off
(recoveries)/average
loans................. 3.81 1.72 0.46 (0.32) (0.33) (0.06) 0.16
CAPITAL RATIOS:
Leverage capital ra-
tio................... 7.70% 8.19% 9.97% 10.53% 8.59% 8.99% 8.54%
Tier 1 capital ratio... 11.23 13.46 15.57 15.69 11.88 13.16 11.33
Total capital.......... 12.60 15.29 16.82 16.85 12.96 14.33 12.58
Total shareholders' eq-
uity to total assets.. 7.73 9.66 10.42 10.35 9.07 9.60 8.57
</TABLE>
- -------
(1) In 1996, a dividend related to 1995 earnings was declared and paid in
January 1996. An additional dividend related to 1996 earnings was declared
in December 1996 and paid in January 1997.
10
<PAGE>
SUMMARY PRO FORMA FINANCIAL DATA
The following unaudited pro forma financial data give effect to the merger
with Citizens as of the dates and for the periods indicated, assuming such
merger is accounted for as a pooling of interests. The unaudited pro forma
financial data are presented for informational purposes only and are not
necessarily indicative of the combined financial position or results of
operations which actually would have occurred if the transaction had been
consummated at that date and for the periods indicated or which may be obtained
in the future. The information should be read in conjunction with the unaudited
pro forma financial information included in the Company's Current Report on
Form 8-K dated October 20, 1997. See "Available Information," "Incorporation of
Certain Documents by Reference," and "The Company--Recent Developments."
<TABLE>
<CAPTION>
AT JUNE 30, 1997
----------------
(IN THOUSANDS)
<S> <C>
SELECTED BALANCE SHEET DATA:
Total assets............................................ $750,370
Loans and loans held for sale, net...................... 519,484
Securities available for sale........................... 139,465
Federal funds sold...................................... 20,628
Interest-bearing deposits in banks...................... 8,970
Total deposits.......................................... 622,723
Total borrowings........................................ 59,250
Total shareholders' equity.............................. 61,320
</TABLE>
<TABLE>
<CAPTION>
FOR THE
FOR THE SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------ ----------------
1994 1995 1996 1996 1997
------- ------- ------- ------- -------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OPERATIONS DATA:
Interest income.................... $33,517 $41,006 $51,271 $24,892 $29,650
Interest expense................... 15,087 19,873 25,343 12,046 14,056
Net interest income................ 18,430 21,133 25,928 12,846 15,594
Provision (negative provision) for
loan losses....................... 365 (582) (115) (39) 184
Net interest income after provision
(negative provision) for loan
losses............................ 18,065 21,715 26,043 12,885 15,410
Other income....................... 5,170 9,649 13,956 6,254 9,002
Other expense...................... 18,763 23,610 30,788 14,467 17,365
Income taxes (expense)............. 1,558 2,188 2,194 1,173 1,995
Net income......................... 2,914 5,553 7,005 3,493 5,044
Net income per common and common
equivalent share.................. 0.31 0.56 0.69 0.35 0.50
Net income per common and common
equivalent share assuming full
dilution.......................... 0.31 0.56 0.69 0.35 0.50
</TABLE>
11
<PAGE>
RISK FACTORS
Prospective investors should carefully consider, together with the other
information contained and incorporated by reference in this Prospectus, the
following risk factors before purchasing the Preferred Securities offered
hereby. Certain statements in this Prospectus and documents incorporated
herein by reference are forward-looking and are identified by the use of
forward-looking words or phrases such as "intended," "will be positioned,"
"expects," is or are "expected," "anticipates," and "anticipated." These
forward-looking statements are based on the Company's current expectations. To
the extent any of the information contained or incorporated by reference in
this Prospectus constitutes a "forward-looking statement" as defined in
Section 21E(i)(1) of the Exchange Act, the risk factors set forth below are
cautionary statements identifying important factors that could cause actual
results to differ materially from those in the forward-looking statement.
These considerations are not intended to represent a complete list of the
general or specific risks that may affect the Preferred Securities, the
Subordinated Debentures or the Company and Premier Capital Trust. It should be
recognized that other risks may be significant, presently or in the future.
RISK FACTORS RELATING TO THE PREFERRED SECURITIES
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE GUARANTEE AND THE SUBORDINATED
DEBENTURES. The obligations of the Company under the Guarantee issued for the
benefit of the holders of Preferred Securities and under the Subordinated
Debentures are unsecured and rank subordinate and junior in right of payment
to all Senior Debt, Subordinated Debt and Additional Senior Obligations of the
Company. Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any of its subsidiaries upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of the Preferred Securities to benefit indirectly from such
distribution) is subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company may itself be recognized as a creditor
of that subsidiary. At June 30, 1997, the Banking Subsidiaries and Premier
Lending had total liabilities (excluding liabilities owed to the Company) of
approximately $531 million. The Subordinated Debentures, therefore, will be
effectively subordinated to all existing and future liabilities of the
subsidiaries and holders of Subordinated Debentures and Preferred Securities
should look only to the assets of the Company for payments on the Subordinated
Debentures. Neither the Indenture, the Guarantee nor the Trust Agreement
places any limitation on the amount of secured or unsecured debt, including
Senior Debt, Subordinated Debt and Additional Senior Obligations, that may be
incurred by the Company. See "Description of the Guarantee--Status of the
Guarantee" and "Description of the Subordinated Debentures--Subordination."
The ability of Premier Capital Trust to pay amounts due on the Preferred
Securities is solely dependent upon the Company making payments on the
Subordinated Debentures as and when required.
Regulations limit the amount of dividends that may be paid by the Company's
banking subsidiaries without prior regulatory approval. As of June 30, 1997,
the Banking Subsidiaries could declare additional dividends to the Company,
without regulatory approval, of approximately $2.6 million. Federal and state
regulatory agencies also have the authority to limit further the Banking
Subsidiaries' payment of dividends based on other factors, such as the
maintenance of adequate capital for the Banking Subsidiaries, which could
reduce the amount of dividends otherwise payable.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES. The Company has the right under the Indenture, so long as no
Debenture Event of Default has occurred and is continuing, to defer the
payment of interest on the Subordinated Debentures at any time or from time to
time for a period not exceeding 20 consecutive quarters with respect to each
Extended Interest Payment Period; provided that no Extended Interest Payment
Period may extend beyond the Stated Maturity of the Subordinated Debentures.
As a consequence of any such deferral, quarterly Distributions on the
Preferred Securities by Premier Capital Trust will be deferred (and the amount
of Distributions to which holders of the Preferred Securities are entitled
will accumulate additional Distributions thereon at the rate of % per annum,
compounded quarterly from the relevant payment date for such Distributions)
during any such Extended Interest Payment Period. During any such Extended
Interest Payment Period, the Company may not (i) declare or pay any dividends
or
12
<PAGE>
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock (other than the
reclassification of any class of the Company's capital stock into another
class of capital stock), (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Subordinated
Debentures (other than payments under the Guarantee), or (iii) redeem,
purchase or acquire less than all of the Subordinated Debentures or any of the
Preferred Securities. Prior to the termination of any such Extended Interest
Payment Period, the Company may further defer the payment of interest;
provided that no Extended Interest Payment Period may exceed 20 consecutive
quarters or extend beyond the Stated Maturity of the Subordinated Debentures.
Upon the termination of any Extended Interest Payment Period and the payment
of all interest then accrued and unpaid (together with interest thereon at the
annual rate of % compounded quarterly, to the extent permitted by applicable
law), the Company may elect to begin a new Extended Interest Payment Period,
subject to the above requirements. Subject to the foregoing, there is no
limitation on the number of times that the Company may elect to begin an
Extended Interest Payment Period. See "Description of the Preferred
Securities--Distributions--Extended Interest Payment Period" and "Description
of the Subordinated Debentures--Option to Extend Interest Payment Period."
Should an Extended Interest Payment Period occur, each holder of Preferred
Securities will be required to accrue and recognize income (in the form of
original issue discount) in respect of its pro rata share of the interest
accruing on the Subordinated Debentures held by Premier Capital Trust for
United States federal income tax purposes. A holder of Preferred Securities
must, as a result, include such income in gross income for United States
federal income tax purposes in advance of the receipt of cash, and will not
receive the cash related to such income from Premier Capital Trust if the
holder disposes of the Preferred Securities prior to the record date for the
payment of the related Distributions. See "Material Federal Income Tax
Consequences--Potential Extension of Interest Payment Period and Original
Issue Discount."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures. Should the Company elect, however, to exercise such
right in the future, the market price of the Preferred Securities is likely to
be adversely affected. A holder that disposes of its Preferred Securities
during an Extended Interest Payment Period, therefore, might not receive the
same return on its investment as a holder that continues to hold its Preferred
Securities. As a result of the existence of the Company's right to defer
interest payments, the market price of the Preferred Securities may be more
volatile than the market prices of other securities on which original issue
discount accrues that are not subject to such optional deferrals.
CAPITAL EVENT; TAX EVENT; OR INVESTMENT COMPANY EVENT; REDEMPTION. The
Company has the right to redeem the Subordinated Debentures in whole (but not
in part) within 180 days following the occurrence of a Capital Event, Tax
Event or Investment Company Event (whether occurring before or after December
31, 2007), and, therefore, cause a mandatory redemption of the Preferred
Securities. The exercise of such right is subject to the Company's having
received prior approval of the Federal Reserve to do so if then required under
applicable capital guidelines or policies of the Federal Reserve.
"Capital Event" means the receipt by Premier Capital Trust of an opinion of
counsel experienced in such matters (which may be counsel to the Company) that
the Company cannot, or, within 90 days after the date of the opinion of such
counsel, will not be permitted by the applicable regulatory authorities, due
to a change in law, regulation, policy or guideline or interpretation or
application of law or regulation, policy or guideline, to account for the
Preferred Securities as Tier 1 capital under the capital guidelines or
policies of the Federal Reserve.
"Tax Event" means the receipt by Premier Capital Trust of an opinion of
counsel experienced in such matters (which may be counsel to the Company) to
the effect that, as a result of any amendment to, or change (including any
announced prospective change) in the laws (or any regulations thereunder) of
the United States or
13
<PAGE>
any political subdivision or taxing authority thereof or therein, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or such pronouncement or decision is announced on or after the
date of issuance of the Preferred Securities under the Trust Agreement, there
is more than an insubstantial risk that (i) Premier Capital Trust is, or will
be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on the
Subordinated Debentures, (ii) interest payable by the Company on the
Subordinated Debentures is not, or, within 90 days of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (iii) Premier Capital Trust is, or will be within 90
days of the date of the opinion, subject to more than a de minimis amount of
other taxes, duties or other governmental charges. The Company must request
and receive an opinion with regard to such matters within a reasonable period
of time after the Company becomes aware of the possible occurrence of any of
the events described in clauses (i) through (iii) above.
"Investment Company Event" means the receipt by Premier Capital Trust of an
opinion of counsel experienced in such matters (which may be counsel to the
Company) to the effect that, as a result of the occurrence of a change in law
or regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, Premier Capital Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which change becomes
effective on or after the date of original issuance of the Preferred
Securities.
In recent years, there have been several proposals to adopt legislation
which, if enacted and made applicable to the Subordinated Debentures, would
preclude the Company from deducting interest thereon. The most recent proposal
was made by the Clinton Administration on March 19, 1997. Such proposals have
not been adopted by Congress, but there can be no assurance that similar
proposals will not be adopted in the future and made applicable to the
Subordinated Debentures. Accordingly, there can be no assurance that any such
legislation will not result in a Tax Event which would permit the Company to
cause a mandatory redemption of the Preferred Securities before, or after,
December 31, 2007, at the Redemption Price.
EXCHANGE OF PREFERRED SECURITIES FOR SUBORDINATED DEBENTURES. The Company
has the right at any time to dissolve, wind-up or terminate Premier Capital
Trust and cause the Subordinated Debentures to be distributed to the holders
of the Preferred Securities in exchange therefor in liquidation of Premier
Capital Trust. The exercise of such right is subject to the Company's having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. The Company
will have the right, in certain circumstances, to redeem the Subordinated
Debentures in whole or in part, in lieu of a distribution of the Subordinated
Debentures by Premier Capital Trust, in which event Premier Capital Trust will
redeem the Trust Securities on a pro rata basis to the same extent as the
Subordinated Debentures are redeemed by the Company. Any such distribution or
redemption prior to the Stated Maturity will be subject to prior approval of
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve. See "Description of the Preferred
Securities--Redemption or Exchange--Capital Event, Tax Event or Investment
Company Event Redemption."
Under current United States federal income tax law, a distribution of
Subordinated Debentures upon the dissolution of Premier Capital Trust would
not be a taxable event to holders of the Preferred Securities. If, however,
Premier Capital Trust is characterized as an association taxable as a
corporation at the time of the dissolution of Premier Capital Trust, the
distribution of the Subordinated Debentures may constitute a taxable event to
holders of Preferred Securities. Moreover, upon occurrence of a Tax Event, a
dissolution of Premier Capital Trust in which holders of the Preferred
Securities receive cash may be a taxable event to such holders. See "Material
Federal Income Tax Consequences--Receipt of Subordinated Debentures or Cash
Upon Liquidation of Premier Capital Trust."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities upon a dissolution or liquidation of
14
<PAGE>
Premier Capital Trust. The Preferred Securities or the Subordinated
Debentures, may, therefore, trade at a discount to the price that the investor
paid to purchase the Preferred Securities offered hereby. Because holders of
Preferred Securities may receive Subordinated Debentures, prospective
purchasers of Preferred Securities are also making an investment decision with
regard to the Subordinated Debentures and should carefully review all the
information regarding the Subordinated Debentures contained herein.
If the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of Premier Capital Trust, the Company will use
its best efforts to list the Subordinated Debentures on the American Stock
Exchange or such stock exchanges, if any, on which the Preferred Securities
are then listed.
RIGHTS UNDER THE GUARANTEE. State Street will act as guarantee trustee and
will hold the Guarantee for the benefit of the holders of the Preferred
Securities. State Street also will act as Property Trustee and as Debenture
Trustee under the Indenture. Wilmington Trust Company will act as the Delaware
Trustee under the Declaration. The Guarantee guarantees to the holders of the
Preferred Securities, to the extent not paid by Premier Capital Trust, (i) any
accrued and unpaid Distributions required to be paid on the Preferred
Securities, to the extent that Premier Capital Trust has funds available
therefor at such time, (ii) the Redemption Price (as defined herein) with
respect to any Preferred Securities called for redemption, to the extent that
Premier Capital Trust has funds available therefor at such time, and (iii)
upon a voluntary or involuntary dissolution, winding-up or liquidation of
Premier Capital Trust (other than in connection with the distribution of
Subordinated Debentures to the holders of Preferred Securities or a redemption
of all of the Preferred Securities), the lesser of (a) the amount of the
Liquidation Distribution (as defined herein), to the extent Premier Capital
Trust has funds available therefor at such time, and (b) the amount of assets
of Premier Capital Trust remaining available for distribution to holders of
the Preferred Securities in liquidation of Premier Capital Trust. The holders
of not less than a majority in Liquidation Amount of the Preferred Securities
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
Guarantee or to direct the exercise of any trust power conferred upon the
Guarantee Trustee under the Guarantee. Any holder of the Preferred Securities
may institute a legal proceeding directly against the Company to enforce its
rights under the Guarantee without first instituting a legal proceeding
against Premier Capital Trust, the Guarantee Trustee or any other Person (as
defined in the Guarantee). If the Company were to default on its obligation to
pay amounts payable under the Subordinated Debentures, Premier Capital Trust
would lack funds for the payment of Distributions or amounts payable on
redemption of the Preferred Securities or otherwise, and, in such event,
holders of Preferred Securities would not be able to rely upon the Guarantee
for such amounts. In the event, however, that a Debenture Event of Default has
occurred and is continuing and such event is attributable to the failure of
the Company to pay interest on or principal of the Subordinated Debentures on
the payment date on which such payment is due and payable, then a holder of
Preferred Securities may institute a legal proceeding directly against the
Company for enforcement of payment to such holder of the principal of or
interest on such Subordinated Debentures having a principal amount equal to
the aggregate Liquidation Amount of the Preferred Securities of such holder (a
"Direct Action"). The exercise by the Company of its right, as described
herein, to defer the payment of interest on the Subordinated Debentures does
not constitute a Debenture Event of Default. In connection with such Direct
Action, the Company will have a right of set-off under the Indenture to the
extent of any payment made by the Company to such holder of Preferred
Securities in the Direct Action. Except as described herein, holders of
Preferred Securities will not be able to exercise directly any other remedy
available to the holders of the Subordinated Debentures or assert directly any
other rights in respect of the Subordinated Debentures. See "Description of
the Subordinated Debentures--Enforcement of Certain Rights by Holders of the
Preferred Securities," "--Debenture Events of Default" and "Description of the
Guarantee."
The Trust Agreement provides that each holder of Preferred Securities by
acceptance thereof agrees to the provisions of the Guarantee and the
Indenture.
LIMITED VOTING RIGHTS. Holders of Preferred Securities will have no voting
rights except in limited circumstances relating only to the modification of
the Preferred Securities and the exercise of the rights of Premier Capital
Trust as holder of the Subordinated Debentures and the Guarantee. Holders of
Preferred
15
<PAGE>
Securities will not be entitled to vote to appoint, remove or replace the
Property Trustee or the Delaware Trustee, as such voting rights are vested
exclusively in the holder of the Common Securities (except upon the occurrence
of certain events described herein). The Property Trustee, the Administrative
Trustees and the Company may amend the Trust Agreement without the consent of
holders of Preferred Securities to ensure that Premier Capital Trust will be
classified for United States federal income tax purposes as a grantor trust
even if such action adversely affects the interests of such holders. See
"Description of the Preferred Securities--Voting Rights; Amendment of Trust
Agreement" and "--Removal of Premier Capital Trust Trustees."
TRADING PRICE; ABSENCE OF PRIOR MARKET FOR THE PREFERRED SECURITIES. The
Preferred Securities may trade at prices that do not fully reflect the value
of accrued but unpaid interest with respect to the underlying Subordinated
Debentures. A holder of Preferred Securities that disposes of its Preferred
Securities between record dates for payments of Distributions (and
consequently does not receive a Distribution from Premier Capital Trust for
the period prior to such disposition) will nevertheless be required to include
accrued but unpaid interest on the Subordinated Debentures through the date of
disposition in income as ordinary income and to add such amount to its
adjusted tax basis in its pro rata share of the underlying Subordinated
Debentures deemed disposed of. Such holder will recognize a capital loss to
the extent the selling price (which may not fully reflect the value of accrued
but unpaid interest) is less than its adjusted tax basis (which will include
all accrued but unpaid interest). Subject to certain limited exceptions,
capital losses cannot be applied to offset ordinary income for United States
federal income tax purposes. See "Material Federal Income Tax Consequences--
Disposition of Preferred Securities."
There is no current public market for the Preferred Securities. Although
application has been made to have the Preferred Securities approved for
quotation on the American Stock Exchange, Inc. there can be no assurance that
an active public market will develop for the Preferred Securities or that, if
such market develops, the market price will equal or exceed the public
offering price set forth on the cover page of this Prospectus. The public
offering price for the Preferred Securities has been determined through
negotiations between the Company and the Underwriters. Prices for the
Preferred Securities will be determined in the marketplace and may be
influenced by many factors, including prevailing interest rates, the liquidity
of the market for the Preferred Securities, investor perceptions of the
Company and general industry and economic conditions. In addition,
notwithstanding the registration of the Preferred Securities, holders who are
"affiliates" of the Company or Premier Capital Trust as defined under Rule 405
of the Securities Act may publicly offer for sale or resell the Preferred
Securities only in compliance with the provisions of Rule 144 under the
Securities Act.
PREFERRED SECURITIES ARE NOT INSURED. The Preferred Securities are not
insured by the Bank Insurance Fund or the Savings Association Insurance Fund
of the Federal Deposit Insurance Corporation ("FDIC") or by any other
governmental agency.
RISK FACTORS RELATING TO THE COMPANY
RELIANCE ON RESIDENTIAL MORTGAGE ORIGINATIONS TO PRODUCE FEE INCOME. The
market for residential mortgages is highly volatile and an increase in
interest rates could have a material adverse effect on both non-interest
income and interest income and in the growth of the Company's residential
mortgage portfolio. In addition, a substantial portion of the Company's other
income has been derived from gains on the sale of mortgage loans and mortgage
production fees consisting of proceeds from the sale of mortgage servicing
rights, loan origination fees and discount points. Due to the cyclical nature
of residential mortgage originations, there can be no assurance that the
Company will be able to sustain recent levels of gains on the sale of mortgage
loans and mortgage production fees.
STATUS OF THE COMPANY AS A BANK HOLDING COMPANY. The Company is a legal
entity separate and distinct from its subsidiaries, although the principal
source of the Company's cash revenues is dividends from its subsidiaries. The
right of the Company to participate in the assets of any subsidiary upon the
latter's liquidation, reorganization or otherwise (and thus the ability of the
holders of the Preferred Securities to benefit indirectly from any such
distribution) will be subject to the claims of the subsidiaries' creditors,
which will take priority except to the extent that the Company may itself be a
creditor with a recognized claim.
16
<PAGE>
Regulations limit the amount of dividends that may be paid by the Banking
Subsidiaries without prior regulatory approval. As of June 30, 1997, the
Banking Subsidiaries and Premier Lending could declare additional dividends to
the Company, without regulatory approval, of approximately $2.6 million.
The Company's subsidiaries are also subject to restrictions under federal
law which limit the transfer of funds by any of the Banking Subsidiaries to
the Company and Premier Lending, whether in the form of loans, extensions of
credit, investments, asset purchases or otherwise. Such transfers by any of
the Banking Subsidiaries to the Company or any affiliate of such Banking
Subsidiary is limited to 10% of such Banking Subsidiary's capital and surplus
and, with respect to the Company and all such nonbanking subsidiaries, to an
aggregate of 20% of such Banking Subsidiary's capital and surplus.
Furthermore, such loans and extensions of credit are required to be secured in
specific amounts.
GROWTH. The Company has grown and may seek to continue to grow by acquiring
other financial institutions and branches. However, the market for
acquisitions is highly competitive. Moreover, any acquisitions will be subject
to regulatory approval and there can be no assurance that the Company will
obtain such approvals. The Company may not be as successful in the future as
it has been in the past in identifying acquisition candidates, integrating
acquired institutions or preventing deposit erosion at acquired institutions
or branches. Furthermore, the Company's ability to grow through acquisitions
will depend on its maintaining sufficient regulatory capital levels and on
economic conditions.
There is no assurance that the Company will not encounter unforeseen
expenses, as well as difficulties and complications in integrating expanded
operations and new employees without disruption to overall operations. In
addition, such rapid growth may adversely affect the Company's operating
results because of many factors, including start-up costs, diversion of
management time and resources, asset quality and required operating
adjustments. There can be no assurance that the Company will successfully
integrate or achieve the anticipated benefits of its growth or expanded
operations, and there is no assurance that rapid growth in its loan portfolio
will not result in an increase in the Company's loan loss experience.
COMPETITION. The Company's subsidiaries face substantial competition for
loans and deposits as well as other sources of funding in the communities they
serve. Competing providers include other national and state banks, thrifts and
trust companies, insurance companies, mortgage banking operations, credit
unions, finance companies, money market funds and other financial and non-
financial companies which may offer products functionally equivalent to those
offered by the Company's subsidiaries. Many competing providers have greater
financial resources than the Company and offer services within and outside the
market areas served by the Company's subsidiaries.
DEVELOPMENTS IN TECHNOLOGY. The market for financial services, including
banking services, is increasingly affected by advances in technology,
including developments in telecommunications, data processing, computers,
automation, Internet-based banking, telebanking, debit cards and so-called
"smart" cards. The ability of the Company to compete successfully in its
markets may depend on the extent to which it is able to exploit such
technological changes. However, there can be no assurance that the development
of these or any other new technologies, or the Company's success or failure in
anticipating or responding to such developments, will materially affect the
Company's business, financial condition and operating results.
17
<PAGE>
THE COMPANY
GENERAL
The Company, a Georgia corporation, is a bank and thrift holding company
headquartered in Atlanta, Georgia. Through the Banking Subsidiaries, the
Company operates 15 banking offices located in the Atlanta metropolitan area
and in northern and central Georgia. In these markets, the Banking
Subsidiaries provide a broad array of community banking services, including:
loans and deposits to small and medium-sized businesses; residential,
construction and development loans; commercial real estate loans; consumer
loans and a variety of commercial and consumer deposit accounts.
In addition, through its wholly-owned mortgage banking subsidiary, Premier
Lending, the Company operates eight mortgage loan production offices in the
Atlanta metropolitan area and one in each of Jacksonville, Florida,
Charleston, South Carolina, and Mobile, Alabama. Premier Lending is a retail
originator of residential mortgage loans which are sold to correspondent
mortgage investors and is an approved FNMA and FHLMC seller-servicer of
mortgage loans and an approved Department of HUD and VA mortgage originator.
The Company is a locally-focused, community-oriented financial services
holding company with several specialized lines of business such as commercial
finance (including asset-based loans), SBA lending, residential construction
lending, residential mortgage loan origination and commercial real estate
mortgage loan origination. The Company's extensive knowledge of both its
product lines and local markets allows it to compete effectively with larger
institutions by offering a wide range of products while maintaining strong
community relationships and name recognition within its markets. In addition,
management believes that there continues to be increased opportunities in the
retail and small commercial loan product market as larger competitors focus on
the higher dollar and volume loan product markets.
The Company's objective is to be the preeminent provider of banking services
for small and medium businesses, focusing on internal growth through branching
in key markets, developing new products and cross-selling its banking products
to existing and new mortgage borrowers. In addition, management intends to
enhance shareholder value by continuing to increase its market share through
engaging in additional mergers and acquisitions of banks, bank holding
companies, thrifts, mortgage companies and insurance brokerage operations.
Acquisitions of unaffiliated financial institutions during the past two
years have been a principal source of the Company's growth. On August 31,
1996, the Company acquired a thrift holding company then named Premier
Bancshares, Inc., and on June 23, 1997, the Company acquired Central and
Southern. As a result of these two transactions, the Company added nine
banking offices and approximately $329 million in assets and approximately
$260 million in deposits to its existing franchise. The historical financial
statements of the Company have been restated to give effect to these
acquisitions which were accounted for as poolings of interests. On October 17,
1997, the Company acquired Traditional and merged Traditional with and into
Premier Lending, adding five loan production offices to Premier Lending's
existing franchise. With the consummation of Traditional, the Company is one
of the largest volume residential mortgage lenders based in the State of
Georgia, averaging approximately $60 million in loan closings per month for
the nine months ended September 30, 1997. See "Incorporation of Certain
Documents by Reference" and "--Recent Developments."
As of September 1, 1997, the Banking Subsidiaries and Premier Lending
employed approximately 350 full-time equivalent employees, of which 230 worked
for the Banking Subsidiaries and 120 worked for Premier Lending. Neither the
Company nor any of its subsidiaries is a party to any collective bargaining
agreement.
Premier Bank and Central and Southern Bank are Georgia state banks, Central
and Southern Bank of North Georgia is a federal savings association, and
Premier Lending is a Georgia corporation. The principal executive offices of
the Company are located at 2180 Atlanta Plaza, 950 E. Paces Ferry Road,
Atlanta, Georgia 30326, and its telephone number at such address is (404) 814-
3090.
18
<PAGE>
RECENT DEVELOPMENTS
On October 9, 1997, the Company announced its operating results for the
three and nine months ended September 30, 1997. Net income increased
approximately 189% to $2.6 million, or $0.32 per share, for the three months
ended September 30, 1997, from approximately $865,000, or $0.11 per share, for
the three months ended September 30, 1996. For the nine months ended September
30, 1997, the Company reported net income of approximately $6.7 million, or
$0.82 per share, which represented approximately a 74% increase, from $3.8
million, or $0.48 per share, for the nine months ended September 30, 1996. For
the three months ended September 30, 1997, the Company's return on assets and
return on equity were 1.75% and 19.98%, respectively, compared to 0.72% and
7.38%, respectively, for the three months ended September 30, 1996. The
Company's return on assets and return on equity for the nine months ended
September 30, 1997 were 1.60% and 18.07%, respectively, compared to 1.09% and
11.05%, respectively, for the nine months ended September 30, 1996. As of
September 30, 1997, the Company had total consolidated assets of approximately
$587 million, total consolidated deposits of approximately $486 million, and
total consolidated shareholders' equity of approximately $52.5 million.
On June 24, 1997, the Company entered into a definitive agreement to acquire
Citizens, which management considers probable of consummation and which is
expected to close in 1997. Citizens is a Georgia corporation and a bank
holding company located in Gwinnett County, Georgia with total consolidated
assets of approximately $163 million and total consolidated deposits of
approximately $150 million as of June 30, 1997 on that date. If the
acquisition of Citizens had been consummated on June 30, 1997, the Company
would be the fifth largest bank and thrift holding company headquartered in
the State of Georgia according to the Georgia Department of Banking.
The Company is in the process of reorganizing certain of the Banking
Subsidiaries. In connection with the reorganization, the Company will convert
the current main office of Central and Southern Bank of North Georgia located
in Greensboro, Georgia to a branch of Central and Southern Bank. Central and
Southern Bank and Central and Southern Bank of North Georgia have entered into
a Purchase and Assumption Agreement whereby Central and Southern Bank will
purchase all of the assets and assume all of the liabilities, respectively, of
the Greensboro branch of Central and Southern Bank of North Georgia.
Immediately following consummation of the purchase and assumption transaction,
Central and Southern Bank of North Georgia will merge with and into Premier
Bank. Premier Bank will be the resulting institution following the merger.
Immediately following consummation of the merger, Central and Southern Bank of
North Georgia's federal stock association charter shall be deemed to be
canceled and will be surrendered to the Office of Thrift Supervision.
19
<PAGE>
ACCOUNTING TREATMENT
Premier Capital Trust will be treated, for financial reporting purposes, as
a subsidiary of the Company and, accordingly, the accounts of Premier Capital
Trust will be included in the consolidated financial statements of the
Company. The Preferred Securities will be presented as a separate line item in
the consolidated balance sheet of the Company under the caption "Guaranteed
Preferred Beneficial Interests in the Company's Subordinated Debentures," and
appropriate disclosures about the Preferred Securities, the Guarantee and the
Subordinated Debentures will be included in the notes to the Company's
consolidated financial statements.
All future reports of the Company filed under the Exchange Act will (i)
present the Trust Securities issued by Premier Capital Trust on the balance
sheet as a separate line item entitled "Guaranteed Preferred Beneficial
Interests in the Company's Subordinated Debentures," (ii) include in a
footnote to the financial statements disclosure that the sole assets of
Premier Capital Trust are the Subordinated Debentures (including the
outstanding principal amount, interest rate and maturity date of such
Subordinated Debentures), and (iii) include in a footnote to the financial
statements disclosure that the Company owns all of the Common Securities of
Premier Capital Trust, the sole assets of Premier Capital Trust are the
Subordinated Debentures, and the back-up obligations, in the aggregate
constitute a full and unconditional guarantee by the Company of the
obligations of Premier Capital Trust under the Preferred Securities.
USE OF PROCEEDS
The proceeds from the sale of the Preferred Securities offered hereby will
be used by Premier Capital Trust to purchase the Subordinated Debentures from
the Company. The net proceeds to the Company from the sale of Subordinated
Debentures offered hereby are estimated to be approximately $23.7 million
($27.3 million if the Underwriters' over-allotment option is exercised in
full), after deducting the underwriting commission and estimated offering
expenses. The Company intends to use the net proceeds for general corporate
purposes, including, but not limited to, financing acquisitions, repurchasing
of outstanding common stock of the Company, investing in or extending credit
to its subsidiaries, reduction of long-term debt and reduction of certain
short-term borrowings of the Company. As of the date of this Prospectus, the
Company has not entered into any agreements or understandings with respect to
any potential acquisition of the type referred to in the preceding sentence,
and no discussions or negotiations with respect to any such potential
acquisition are taking place. The precise amount and timing of the application
of such net proceeds used for such corporate purposes will depend on the
funding requirements and availability of other funds to the Company and its
needs. Pending such application by the Company, such net proceeds may be
temporarily invested in short-term interest-bearing securities. The proceeds
from the Preferred Securities will qualify as Tier 1 or core capital with
respect to the Company under the risk-based capital guidelines established by
the Federal Reserve. Federal Reserve guidelines for calculation of Tier 1
capital limit the amount of cumulative Preferred Stock which can be included
in Tier 1 capital to 25% of total Tier 1 capital.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth for the respective periods indicated the
ratios of the Company's consolidated earnings to fixed charges.
<TABLE>
<CAPTION>
YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
---------------------------------- ---------------
1992 1993 1994 1995 1996 1996 1997
-------- ------- ----- ----- ----- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges:
Excluding interest on de-
posits................... (72.13)x (0.69)x 5.24x 3.76x 3.61x 3.84x 5.40x
Including interest on de-
posits................... 0.81x 0.98x 1.22x 1.38x 1.36x 1.41x 1.50x
</TABLE>
For the years ended December 31, 1992 and 1993, the earnings were not
adequate to cover fixed charges. The deficiency was $4.0 million and $284,000
for the years ended December 31, 1992 and 1993, respectively, for each
computation. For purposes of computing the ratio, earnings represent pretax
income before extraordinary items and cumulative effect of changes in
accounting principles plus fixed charges. Fixed charges, excluding interest on
deposits, include interest expense (other than on deposits) and the proportion
deemed representative of the interest factor of rent expense, net of income
from subleases. Fixed charges, including interest on deposits, include all
interest expense and the proportion deemed representative of the interest
factor of rent expense, net of income from subleases.
20
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited consolidated capitalization of
the Company as of June 30, 1997, and as adjusted to give effect to the
consummation of the offering of the Preferred Securities offered hereby and
the application of the net proceeds thereof as if the sale of the Preferred
Securities had been consummated on June 30, 1997. The following data should be
read in conjunction with the financial information included in the documents
incorporated by reference. See "Incorporation of Certain Documents by
Reference" and "Use of Proceeds."
<TABLE>
<CAPTION>
AS OF
JUNE 30, 1997
-------------------------------------------
AS ADJUSTED
AS ADJUSTED FOR FOR CITIZENS MERGER
PREFERRED AND PREFERRED
SECURITIES SECURITIES
ACTUAL ISSUANCE ISSUANCE
------- --------------- -------------------
(DOLLARS IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C>
Total long-term debt payable....... 28,015 28,015 28,015
------- -------- --------
Guaranteed preferred beneficial in-
terests in the Company's subordi-
nated debentures.................. -- 25,000 25,000
------- -------- --------
Shareholders' equity:
Common stock; $1.00 par value;
20,000,000 authorized shares;
7,936,182 shares issued and out-
standing......................... 7,917 7,917 9,984
Capital surplus................... 23,886 23,886 27,951
Unrealized gains on securities
available for sale............... 203 203 303
Retained earnings................. 18,349 18,349 23,082
------- -------- --------
Total shareholders' equity....... 50,355 50,355 61,320
------- -------- --------
Total capitalization............ $78,370 $103,370 $114,335
======= ======== ========
</TABLE>
21
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The summary below should be read in conjunction with the financial
information included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997, and Current Report on Form 8-K dated October 20, 1997 (which
includes restated financial statements of the Company giving effect to the
combination of Central and Southern with the Company, accounted for as a
pooling of interest). Interim unaudited data for the six months ended June 30,
1996 and 1997 reflect, in the opinion of management of the Company, all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of such data. Results for the six months ended June 30, 1996
and 1997 are not necessarily indicative of results which may be expected for
any other interim period or the year as a whole. The consolidated financial
data as of December 31, 1992, 1993 and 1994 and for the years ended December
31, 1992 and 1993 presented below are unaudited and are based upon the audited
year end financial information of the Company, which has a fiscal year end of
December 31 and the unaudited interim financial information of an entity
acquired by the Company which had a fiscal year end of March 31. See
"Available Information" and "Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
AS AND FOR THE
AS OF AND FOR THE YEAR ENDED SIX MONTHS
DECEMBER 31, ENDED JUNE 30,
------------------------------------------------------ --------------------
1992 1993 1994 1995 1996 1996 1997
--------- --------- --------- --------- --------- --------- ---------
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
SELECTED RESULTS OF OP-
ERATIONS DATA:
Interest income........ $ 39,345 $ 31,234 $ 27,723 $ 33,575 $ 40,252 $ 19,904 $ 23,045
Interest expense....... 21,694 15,204 13,028 16,662 20,238 9,766 11,379
--------- --------- --------- --------- --------- --------- ---------
Net interest income.... 17,651 16,030 14,695 16,913 20,014 10,138 11,666
--------- --------- --------- --------- --------- --------- ---------
Provision (negative
provision) for loan
losses................ 12,283 3,732 285 (700) (418) (229) (130)
Other income........... 3,683 4,025 4,622 9,087 13,118 5,884 8,520
Other expense.......... 13,073 16,607 16,159 20,378 26,346 12,277 14,649
--------- --------- --------- --------- --------- --------- ---------
Income (loss) before
income tax expense
(benefit) and minority
interest.............. (4,022) (284) 2,873 6,322 7,204 3,974 5,667
Income tax expense
(benefit)............. (1,193) (482) 965 1,761 1,698 1,009 1,571
Minority interest in
net income of subsidi-
ary................... -- -- -- 13 12 6 8
--------- --------- --------- --------- --------- --------- ---------
Net income (loss)..... $ (2,829) $ 198 $ 1,908 $ 4,548 $ 5,494 $ 2,959 $ 4,088
========= ========= ========= ========= ========= ========= =========
PER SHARE DATA:
Net income (loss)...... $ (0.47) $ 0.03 $ 0.25 $ 0.57 $ 0.68 $ 0.37 $ 0.51
Dividends declared..... 0.04 -- 0.07 0.09 0.41(1) 0.16 0.11
Book value............. 4.73 5.51 4.93 5.79 5.97 5.78 6.36
Tangible book value.... 4.54 5.32 4.85 5.48 5.61 5.41 6.02
Weighted average shares
outstanding........... 6,898,295 6,898,295 7,041,663 7,982,660 8,091,369 7,970,193 8,062,259
SELECTED BALANCE SHEET
DATA:
Total assets........... $ 413,484 $ 385,483 $ 355,523 $ 445,374 $ 519,944 $ 476,674 $ 587,424
Securities available
for sale.............. 53,609 45,785 47,254 110,311 99,732 106,379 99,706
Securities held to ma-
turity................ 64,773 77,152 56,514 -- -- -- --
Loans held for sale.... -- 4,446 26,047 25,912 24,408 30,579 40,333
Loans, net............. 250,173 201,909 184,514 240,953 306,721 277,957 371,369
Federal funds sold..... 11,327 23,065 34,179 19,217 42,896 15,070 20,138
Total deposits......... 376,482 341,850 294,848 358,927 431,898 386,424 472,356
Total borrowings....... 300 4,399 21,144 34,462 35,242 40,220 59,088
Total shareholders' eq-
uity.................. 31,981 37,234 37,038 46,090 47,180 45,738 50,355
Total liabilities...... 381,503 348,249 318,485 399,267 472,751 430,928 537,069
PERFORMANCE RATIOS:
Return on average as-
sets.................. (0.65)% 0.05% 0.51% 1.11% 1.17% 1.28% 1.52%
Return on average equi-
ty.................... (8.49) 0.57 5.09 10.46 11.90 12.88 17.44
ASSET QUALITY RATIOS:
Nonperforming
loans/total loans, net
of unearned income and
fees.................. 2.51% 1.52% 0.98% 0.44% 0.45% 0.34% 0.28%
Nonperforming
assets/total assets... 1.95 1.55 0.98 0.45 0.46 0.32% 0.29
Allowance for loan
loss/total loans, net
of unearned income and
fees.................. 2.54 3.01 2.95 2.43 2.10 2.25 1.84
Allowance for loan
loss/nonperforming
loans................. 100.90 197.57 300.43 556.36 460.91 653.84 688.35
Allowance for loan
losses/nonperforming
assets................ 80.59 104.86 161.49 302.02 276.66 424.17 411.39
Net loan charge-off
(recoveries)/average
loans................. 3.81 1.72 0.46 (0.32) (0.33) (0.06) 0.16
CAPITAL RATIOS:
Leverage capital ra-
tio................... 7.70% 8.19% 9.97% 10.53% 8.59% 8.99% 8.54%
Tier 1 capital ratio... 11.23 13.46 15.57 15.69 11.88 13.16 11.33
Total capital.......... 12.60 15.29 16.82 16.85 12.96 14.33 12.58
Total shareholders' eq-
uity to total assets.. 7.73 9.66 10.42 10.35 9.07 9.60 8.57
</TABLE>
- -------
(1) In 1996, a dividend related to 1995 earnings was declared and paid in
January 1996. An additional dividend related to 1996 earnings was declared
in December 1996 and paid in January 1997.
22
<PAGE>
PREMIER CAPITAL TRUST I
Premier Capital Trust is a statutory business trust formed under Delaware
law pursuant to (i) a trust agreement, dated as of October 21, 1997, executed
by the Company, as depositor, and the trustees of Premier Capital Trust
(together with the Property Trustee, the Trustees), and (ii) a certificate of
trust filed with the Secretary of State of the State of Delaware on October
21, 1997. The initial trust agreement will be amended and restated in its
entirety substantially in the form filed as an exhibit to the Registration
Statement of which this Prospectus forms a part and as so amended and restated
is referred to herein as the Trust Agreement. The Trust Agreement will be
qualified as an indenture under the Trust Indenture Act. Upon issuance of the
Preferred Securities, the purchasers thereof will own all of the Preferred
Securities. The Company will acquire all of the Common Securities which will
represent an aggregate liquidation amount equal to at least 3% of the total
capital of Premier Capital Trust. The Common Securities will rank pari passu,
and payments will be made thereon pro rata, with the Preferred Securities,
except that upon the occurrence and during the continuance of an Event of
Default (as defined herein) under the Trust Agreement resulting from a
Debenture Event of Default, the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities. See "Description of the Preferred
Securities--Subordination of Common Securities." Premier Capital Trust exists
for the exclusive purposes of (i) issuing the Trust Securities representing
undivided beneficial interests in the assets of Premier Capital Trust, (ii)
investing the gross proceeds of the Trust Securities in the Subordinated
Debentures issued by the Company, and (iii) engaging in only those other
activities necessary, advisable, or incidental thereto. The Subordinated
Debentures will be the only assets of Premier Capital Trust and payments under
the Subordinated Debentures will be the only revenue of Premier Capital Trust.
Premier Capital Trust has a term of 31 years, but may terminate earlier as
provided in the Trust Agreement. The principal executive office of Premier
Capital Trust is 2180 Atlanta Plaza, 950 East Paces Ferry Road, Atlanta,
Georgia 30326 and its telephone number is (404) 814-3090.
The number of the Trustees will, pursuant to the Trust Agreement, initially
be four. Two of the trustees (the "Administrative Trustees") will be Darrell
D. Pittard, Chairman and Chief Executive Officer, and Robert C. Oliver,
President and Chief Operating Officer, of the Company. The third trustee, the
Property, will be a financial institution that is unaffiliated with the
Company, which trustee will serve as institutional trustee under the Trust
Agreement and as indenture trustee for the purposes of compliance with the
provisions of the Trust Indenture Act. State Street, a state chartered trust
company organized under the laws of Massachusetts will be the Property Trustee
until removed or replaced by the holder of the Common Securities. For purposes
of compliance with the provisions of the Trust Indenture Act, State Street
will also act as trustee under the Guarantee (the "Guarantee Trustee") and as
Debenture Trustee (as defined herein) under the Indenture. The fourth trustee
will be an entity that maintains its principal place of business in the State
of Delaware (the "Delaware Trustee"). Wilmington Trust Company, a Delaware
chartered trust company, will act as Delaware Trustee.
The Property Trustee will hold title to the Subordinated Debentures for the
benefit of the holders of the Trust Securities and in such capacity will have
the power to exercise all rights, powers and privileges under the Indenture.
The Property Trustee will also maintain exclusive control of a segregated non-
interest-bearing bank account (the "Property Account") to hold all payments
made in respect of the Subordinated Debentures for the benefit of the holders
of the Trust Securities. The Property Trustee will make payments of
Distributions and payments on liquidation, redemption and otherwise to the
holders of the Trust Securities out of funds from the Property Account. The
Guarantee Trustee will hold the Guarantee for the benefit of the holders of
the Preferred Securities. The Company, as the holder of all the Common
Securities, will have the right to appoint, remove or replace any Trustee and
to increase or decrease the number of the Trustees. The Company will pay all
fees and expenses related to Premier Capital Trust and the offering of the
Trust Securities.
The rights of the holders of the Preferred Securities, including economic
rights, rights to information and voting rights, are set forth in the Trust
Agreement, the Delaware Business Trust Act (the "Trust Act") and the Trust
Indenture Act. See "Description of the Preferred Securities."
23
<PAGE>
DESCRIPTION OF THE PREFERRED SECURITIES
The Preferred Securities and the Common Securities will be issued pursuant
to the terms of the Trust Agreement. The Trust Agreement will be qualified as
an indenture under the Trust Indenture Act. The Property Trustee, will act as
indenture trustee for the Preferred Securities under the Trust Agreement for
purposes of complying with the provisions of the Trust Indenture Act. The
terms of the Preferred Securities will include those stated in the Trust
Agreement and those made part of the Trust Agreement by the Trust Indenture
Act. The following summary of the material terms and provisions of the
Preferred Securities and the Trust Agreement does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the Trust
Agreement, the Trust Act, and the Trust Indenture Act. Wherever particular
defined terms of the Trust Agreement are referred to, but not defined herein,
such defined terms are incorporated herein by reference. The form of the Trust
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part.
GENERAL
Pursuant to the terms of the Trust Agreement, the Trustees, on behalf of
Premier Capital Trust, will issue the Trust Securities. All of the Common
Securities will be owned by the Company. The Preferred Securities will
represent preferred undivided beneficial interests in the assets of Premier
Capital Trust and the holders thereof will be entitled to a preference in
certain circumstances with respect to Distributions and amounts payable on
redemption or liquidation over the Common Securities, as well as other
benefits as described in the Trust Agreement. The Trust Agreement does not
permit the issuance by Premier Capital Trust of any securities other than the
Trust Securities or the incurrence of any indebtedness by Premier Capital
Trust.
The Preferred Securities will be limited to $25,000,000 aggregate
Liquidation Amount outstanding (or $28,750,000 if the over-allotment option
described under the heading "Underwriting" is exercised by the Underwriters).
The Preferred Securities will rank pari passu, and payments will be made
thereon pro rata, with the Common Securities, except as described under "--
Subordination of Common Securities." Legal title to the Subordinated
Debentures will be held by the Property Trustee in trust for the benefit of
the holders of the Trust Securities. The Guarantee executed by the Company for
the benefit of the holders of the Preferred Securities will be a guarantee on
a subordinated basis with respect to the Preferred Securities, but will not
guarantee payment of Distributions or amounts payable on redemption or
liquidation of such Preferred Securities when Premier Capital Trust does not
have funds on hand available to make such payments. The Guarantee Trustee will
hold the Guarantee for the benefit of the Holders of the Preferred Securities.
See "Description of the Guarantee."
If the Company does not make interest payments on the Subordinated
Debentures, the Property Trustee will not have funds available to pay
Distributions on the Preferred Securities. The payment of Distributions (if
and to the extent Premier Capital Trust has funds legally available for the
payment of such Distributions and cash sufficient to make such payments) is
guaranteed by the Company. See "Description of the Guarantee."
DISTRIBUTIONS
Payment of Distributions. Distributions on each Preferred Security will be
payable at the annual rate of % of the stated Liquidation Amount of $25.00,
payable quarterly in arrears on March 31, June 30, September 30 and December
31 of each year, to the holders of the Preferred Securities on the relevant
record dates (each date on which Distributions are payable in accordance with
the foregoing, a "Distribution Date"). The record date will be the 15th day of
the month in which the relevant Distribution Date occurs. Distributions will
accumulate from the date of original issuance. The first Distribution Date for
the Preferred Securities will be December 31, 1997. The amount of
Distributions payable for any period will be computed on the basis of a 360-
day year of twelve 30-day months. In the event that any date on which
Distributions are payable on the Preferred Securities is not a Business Day,
then payment of the Distributions payable on such date will be made on the
next succeeding day that is a Business Day (and without any additional
Distributions, interest or other payment in respect of any such delay) with
the same force and effect as if made on the date such payment was originally
due and payable. "Business Day" means any day other than a Saturday or Sunday,
or a day on which banking institutions in the City of Atlanta, Georgia are
authorized or required by law or executive order to remain closed or a day on
which the corporate trust office of the Property Trustee or the Debenture
Trustee is closed for business.
24
<PAGE>
Extended Interest Payment Period. The Company has the right under the
Indenture, so long as no Debenture Event of Default has occurred and is
continuing, to an Extended Interest Payment Period which, if exercised, would
defer quarterly Distributions on the Preferred Securities during any such
Extended Interest Payment Period. Distributions to which holders of the
Preferred Securities are entitled will accumulate additional Distributions
thereon at the rate per annum of % thereof, compounded quarterly from the
relevant Distribution Date. "Distributions," as used herein, includes any such
additional Distributions. The right to defer the payment of interest on the
Subordinated Debentures is limited, however, to a period not exceeding 20
consecutive quarters and no Extended Interest Payment Period may extend beyond
the Stated Maturity of the Subordinated Debentures. During any such Extended
Interest Payment Period, the Company may not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire or make a liquidation
payment with respect to, any of the Company's capital stock (other than the
reclassification of any class of the Company's capital stock into another
class of capital stock), (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Subordinated
Debentures or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Subordinated
Debentures (other than payments under the Guarantee), or (iii) redeem,
purchase or acquire less than all of the subordinated Debentures or any of the
Preferred Securities. Prior to the termination of any such Extended Interest
Payment Period, the Company may further defer the payment of interest;
provided that such Extended Interest Payment Period may not exceed 20
consecutive quarters or extend beyond the Stated Maturity of the Subordinated
Debentures. Upon the termination of any such Extended Interest Payment Period
and the payment of all amounts then due, the Company may elect to begin a new
Extended Interest Payment Period, subject to the above requirements. Subject
to the foregoing, there is no limitation on the number of times that the
Company may elect to begin an Extended Interest Payment Period.
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the
Subordinated Debentures.
Source of Distributions. The funds of Premier Capital Trust available for
distribution to holders of its Preferred Securities will be limited to
payments under the Subordinated Debentures in which Premier Capital Trust will
invest the proceeds from the issuance and sale of its Trust Securities. See
"Description of the Subordinated Debentures." Distributions will be paid
through the Property Trustee who will hold amounts received in respect of the
Subordinated Debentures in the Property Account for the benefit of the holders
of the Trust Securities. If the Company does not make interest payments on the
Subordinated Debentures, the Property Trustee will not have funds available to
pay Distributions on the Preferred Securities. The payment of Distributions
(if and to the extent Premier Capital Trust has funds legally available for
the payment of such Distributions and cash sufficient to make such payments)
is guaranteed by the Company. See "Description of the Guarantee."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of holders of the Preferred Securities
on the relevant record dates, which date will be the 15th day of the month in
which the relevant Distribution Date occurs. Subject to any applicable laws
and regulations and the provisions of the Trust Agreement, each such payment
will be made as described above under "--Distributions--Payment of
Distributions."
REDEMPTION OR EXCHANGE
General. The Subordinated Debentures will mature on the Stated Maturity. The
Company will have the right to redeem the Subordinated Debentures (i) on or
after December 31, 2007, in whole at any time or in part from time to time, or
(ii) at any time, in whole (but not in part), within 180 days following the
occurrence of a Capital Event, a Tax Event, or an Investment Company Event, in
each case subject to receipt of prior approval by the Federal Reserve if then
required under applicable capital guidelines or policies of the Federal
Reserve. A redemption of the Subordinated Debentures would cause a mandatory
redemption of a Like Amount
25
<PAGE>
of the Preferred Securities and Common Securities at the Redemption Price. The
Company will not have the right to purchase the Subordinated Debentures, in
whole or in part, from Premier Capital Trust until after December 31, 2007,
except if a Capital Event, a Tax Event or an Investment Company Event has
occurred and is continuing. See "Description of the Subordinated Debentures--
General."
Mandatory Redemption. Upon the repayment or redemption, in whole or in part,
of any Subordinated Debentures, whether at Stated Maturity or upon earlier
redemption as provided in the Indenture, the proceeds from such repayment or
redemption will be applied by the Property Trustee to redeem a Like Amount (as
defined herein) of the Trust Securities, upon not less than 30 nor more than
60 days' notice (the "Redemption") equal to the aggregate Liquidation Amount
of such Trust Securities plus accumulated but unpaid Distributions thereon to
the date of redemption (the "Redemption Date"). See "Description of the
Subordinated Debentures--Redemption or Exchange." If less than all of the
Subordinated Debentures are to be repaid or redeemed on a Redemption Date,
then the proceeds from such repayment or redemption will be allocated to the
redemption of the Trust Securities pro rata.
Distribution of Subordinated Debentures. Subject to the Company's having
received prior approval of the Federal Reserve if so required under applicable
capital guidelines or policies of the Federal Reserve, the Company will have
the right at any time to dissolve, wind-up or terminate Premier Capital Trust
and, after satisfaction of the liabilities of creditors of Premier Capital
Trust as provided by applicable law, cause the Subordinated Debentures to be
distributed to the holders of Trust Securities in liquidation of Premier
Capital Trust. See "--Liquidation Distribution Upon Termination."
Capital Event, Tax Event or Investment Company Event Redemption. If a
Capital Event, Tax Event or an Investment Company Event in respect of the
Trust Securities occurs and is continuing, the Company has the right to redeem
the Subordinated Debentures in whole (but not in part) and thereby cause a
mandatory redemption of such Trust Securities in whole (but not in part) at
the Redemption Price within 180 days following the occurrence of such Capital
Event, Tax Event or Investment Company Event. In the event a Capital Event,
Tax Event or an Investment Company Event in respect of the Trust Securities
has occurred and the Company does not elect to redeem the Subordinated
Debentures and thereby causes a mandatory redemption of such Trust Securities
or to liquidate Premier Capital Trust and cause Subordinated Debentures to be
distributed to holders of such Trust Securities in liquidation of Premier
Capital Trust as described below under "--Liquidation Distribution Upon
Termination," such Preferred Securities will remain outstanding and Additional
Interest (as defined herein) may be payable on the Subordinated Debentures.
"Additional Interest" means the additional amounts as may be necessary in
order that the amount of Distributions then due and payable by Premier Capital
Trust on the outstanding Trust Securities will not be reduced as a result of
any additional taxes, duties and other governmental charges to which Premier
Capital Trust has become subject as a result of a Tax Event.
"Like Amount" means (i) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to that portion of the
principal amount of Subordinated Debentures to be contemporaneously redeemed
in accordance with the Indenture, which will be used to pay the Redemption
Price of such Trust Securities, and (ii) with respect to a distribution of
Subordinated Debentures to holders of Trust Securities in connection with a
dissolution or liquidation of Premier Capital Trust, Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Trust
Securities of the holder to whom such Subordinated Debentures are distributed.
Each Subordinated Debenture distributed pursuant to clause (ii) above will
carry with it accumulated interest in an amount equal to the accumulated and
unpaid interest then due on such Subordinated Debenture.
"Liquidation Amount" means the stated amount of $25.00 per Trust Security.
After the liquidation date fixed for any distribution of Subordinated
Debentures for Preferred Securities (i) such Preferred Securities will no
longer be deemed to be outstanding, and (ii) any certificates representing
Preferred Securities will be deemed to represent the Subordinated Debentures
having a principal amount equal
26
<PAGE>
to the Liquidation Amount of such Preferred Securities, and bearing accrued
and unpaid interest in an amount equal to the accrued and unpaid Distributions
on the Preferred Securities until such certificates are presented to the
Administrative Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of Premier Capital
Trust were to occur. The Preferred Securities that an investor may purchase,
or the Subordinated Debentures that an investor may receive on dissolution and
liquidation of Premier Capital Trust, may, therefore, trade at a discount to
the price that the investor paid to purchase the Preferred Securities offered
hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date will be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Subordinated Debentures. Redemptions of the Preferred
Securities will be made and the Redemption Price will be payable on each
Redemption Date only to the extent that Premier Capital Trust has funds on
hand available for the payment of such Redemption Price. See "--Subordination
of Common Securities."
If Premier Capital Trust gives a notice of redemption in respect of its
Preferred Securities, then the Property Trustee, to the extent funds are
available, will irrevocably deposit with the paying agent for the Preferred
Securities funds sufficient to pay the aggregate Redemption Price and will
give the paying agent for the Preferred Securities irrevocable instructions
and authority to pay the Redemption Price to the holders thereof upon
surrender of their certificates evidencing such Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Preferred Securities called for redemption will be
payable to the holders of such Preferred Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption will have
been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Preferred Securities so called for
redemption will cease, except the right of the holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be outstanding.
In the event that any date fixed for redemption of Preferred Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day which is a Business Day (and without any
additional Distribution, interest or other payment in respect of any such
delay) with the same force and effect as if made on such date except that, if
such Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by Premier Capital Trust,
or by the Company pursuant to the Guarantee, Distributions on such Preferred
Securities will continue to accrue at the then applicable rate, from the
Redemption Date originally established by Premier Capital Trust for such
Preferred Securities to the date such Redemption Price is actually paid, in
which case the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price. See "Description
of the Guarantee."
Subject to applicable law (including, without limitation, United States
federal securities law) and further provided, that the Company has not and is
not continuing to exercise its right to defer interest payments, the Company
or its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender in the open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Subordinated Debentures to holders of Preferred Securities
will be made to the applicable record holders thereof as they appear on the
register for the Preferred Securities on the relevant record date, which date
will be the date 15 days prior to the Redemption Date or liquidation date, as
applicable.
If less than all of the Trust Securities are to be redeemed on a Redemption
Date, then the aggregate Liquidation Amount of such Trust Securities to be
redeemed will be allocated pro rata to the Trust Securities based upon the
relative Liquidation Amounts of such classes. The particular Preferred
Securities to be redeemed
27
<PAGE>
will be selected by the Property Trustee from the outstanding Preferred
Securities not previously called for redemption, by such method as the
Property Trustee deems fair and appropriate and which may provide for the
selection for redemption of portions (equal to $25.00 or an integral multiple
of $25.00 in excess thereof) of the Liquidation Amount of Preferred Securities
of a denomination larger than $25.00. The Property Trustee will promptly
notify the registrar for the Preferred Securities in writing of the Preferred
Securities selected for redemption and, in the case of any Preferred
Securities selected for partial redemption, the Liquidation Amount thereof to
be redeemed. For all purposes of the Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities will relate to the portion of the aggregate Liquidation Amount of
Preferred Securities which has been or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the Redemption Price on the Subordinated Debentures, on and after the
Redemption Date interest will cease to accrue on such Subordinated Debentures
or portions thereof (and Distributions will cease to accrue on the related
Preferred Securities or portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Preferred
Securities and Common Securities, as applicable, will be made pro rata based
on the Liquidation Amount of the Preferred Securities and Common Securities;
provided, however, that if on any Distribution Date or Redemption Date a
Debenture Event of Default has occurred and is continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of the redemption, liquidation or other acquisition
of such Common Securities, will be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or in
the case of payment of the Redemption Price the full amount of such Redemption
Price on all of the outstanding Preferred Securities then called for
redemption, will have been made or provided for, and all funds available to
the Property Trustee will first be applied to the payment in full in cash of
all Distributions on, or Redemption Price of, the Preferred Securities then
due and payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of the Common Securities will be deemed to have
waived any right to act with respect to any such Event of Default under the
Trust Agreement until the effect of all such Events of Default with respect to
the Preferred Securities has been cured, waived or otherwise eliminated. Until
any such Events of Default under the Trust Agreement with respect to the
Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the Preferred
Securities and not on behalf of the Company, as holder of the Common
Securities, and only the holders of the Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
The Company will have the right at any time to dissolve, wind-up or
terminate Premier Capital Trust and cause the Subordinated Debentures to be
distributed to the holders of the Preferred Securities. Such right is subject,
however, to the Company's having received prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve.
The Federal Reserve's risk-based capital guidelines currently provide that
redemptions of permanent equity or other capital instruments before stated
maturity could have a significant impact on a bank holding company's overall
capital structure and that any organization considering such a redemption
should consult with the Federal Reserve before redeeming any equity or capital
instrument prior to maturity if such redemption could have a material effect
on the level or composition of the organization's capital base (unless the
equity or capital instrument were redeemed with the proceeds of, or replaced
by, a like amount of a similar or higher quality capital instrument and the
Federal Reserve considers the organization's capital position to be fully
adequate after the redemption).
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In the event the Company, while a holder of Common Securities, dissolves
Premier Capital Trust prior to the Stated Maturity of the Preferred Securities
and the dissolution of the Premier Capital Trust is deemed to constitute the
redemption of capital instruments by the Federal Reserve under its risk-based
capital guidelines or policies, the dissolution of the Premier Capital Trust
by the Company may be subject to the prior approval of the Federal Reserve.
Moreover, any changes in applicable law or changes in the Federal Reserve's
risk-based capital guidelines or policies could impose a requirement on the
Company that it obtain the prior approval of the Federal Reserve to dissolve
Premier Capital Trust.
Pursuant to the Trust Agreement, Premier Capital Trust will automatically
terminate upon expiration of its term and will terminate earlier on the first
to occur of (i) certain events of bankruptcy, dissolution or liquidation of
the Company, (ii) the distribution of a Like Amount of the Subordinated
Debentures to the holders of its Trust Securities, if the Company, as
depositor, has given written direction to the Property Trustee to terminate
Premier Capital Trust (which direction is optional and wholly within the
discretion of the Company, as depositor), (iii) redemption of all of the
Preferred Securities as described under "Description of Preferred Securities--
Redemption or Exchange--Mandatory Redemption," or (iv) the entry of an order
for the dissolution of Premier Capital Trust by a court of competent
jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv) of
the preceding paragraph, Premier Capital Trust will be liquidated by the
Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of Premier
Capital Trust as provided by applicable law, to the holders of such Trust
Securities a Like Amount of the Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be practical, in
which event such holders will be entitled to receive out of the assets of
Premier Capital Trust available for distribution to holders, after
satisfaction of liabilities to creditors of Premier Capital Trust as provided
by applicable law, an amount equal to, in the case of holders of Preferred
Securities, the aggregate of the Liquidation Amount plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If such Liquidation Distribution can be paid only
in part because Premier Capital Trust has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by Premier Capital Trust on the Preferred Securities will be paid on
a pro rata basis. The Company, as the holder of the Common Securities, will be
entitled to receive distributions upon any such liquidation pro rata with the
holders of the Preferred Securities, except that, if a Debenture Event of
Default has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities. See "--Subordination of Common
Securities."
Under current United States federal income tax law and interpretations and
assuming, as expected, that Premier Capital Trust is treated as a grantor
trust, a distribution of the Subordinated Debentures should not be a taxable
event to holders of the Preferred Securities. Should there be a change in law,
a change in legal interpretation, a Tax Event or other circumstances, however,
the distribution could be a taxable event to holders of the Preferred
Securities. See "Material Federal Income Tax Consequences--Receipt of
Subordinated Debentures or Cash Upon Liquidation of Premier Capital Trust." If
the Company elects neither to redeem the Subordinated Debentures prior to
maturity nor to liquidate Premier Capital Trust and distribute the
Subordinated Debentures to holders of the Preferred Securities, the Preferred
Securities will remain outstanding until the repayment of the Subordinated
Debentures.
If the Company elects to liquidate Premier Capital Trust and thereby causes
the Subordinated Debentures to be distributed to holders of the Preferred
Securities in liquidation of Premier Capital Trust, the Company will continue
to have the right to shorten or extend the maturity of such Subordinated
Debentures, subject to certain conditions. See "Description of the
Subordinated Debentures--General."
There can be no assurance as to the market prices for the Preferred
Securities or the Subordinated Debentures that may be distributed in exchange
for Preferred Securities if a dissolution and liquidation of Premier Capital
Trust were to occur. Accordingly, the Preferred Securities that an investor
may purchase, or the Subordinated Debentures that the investor may receive on
dissolution and liquidation of Premier Capital Trust, may trade at a discount
to the price that the investor paid to purchase the Preferred Securities
offered hereby.
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LIQUIDATION VALUE
The amount of the Liquidation Distribution payable on the Preferred
Securities in the event of any liquidation of Premier Capital Trust is $25.00
per Preferred Security plus accrued and unpaid Distributions thereon to the
date of payment, which may be in the form of a distribution of such amount in
Subordinated Debentures, subject to certain exceptions. See "--Liquidation
Distribution Upon Termination."
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an event of default under the
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities (whatever the reason for such Event of Default and whether
voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(i) the occurrence of a Debenture Event of Default (see "Description of the
Subordinated Debentures--Debenture Events of Default"); or
(ii) default by Premier Capital Trust in the payment of any Distribution
when it becomes due and payable, and continuation of such default for
a period of 30 days; or
(iii) default by Premier Capital Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in the Trust Agreement (other
than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clauses (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the
Trustee(s) by the holders of at least 25% in aggregate Liquidation
Amount of the outstanding Preferred Securities, a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under the Trust
Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee will transmit
notice of such Event of Default to the holders of the Preferred Securities,
the Administrative Trustees and the Company, as depositor, unless such Event
of Default has been cured or waived. The Company, as depositor, and the
Administrative Trustees are required to file annually with the Property
Trustee a certificate as to whether or not they are in compliance with all the
conditions and covenants applicable to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities will have a preference over the Common Securities upon
termination of Premier Capital Trust. See "--Liquidation Distribution Upon
Termination." The existence of an Event of Default does not entitle the
holders of Preferred Securities to accelerate the maturity thereof.
REMOVAL OF PREMIER CAPITAL TRUST TRUSTEES
Unless a Debenture Event of Default has occurred and is continuing, any
Trustee may be removed at any time by the holder of the Common Securities. If
a Debenture Event of Default has occurred and is continuing, the Property
Trustee and the Delaware Trustee may be removed at such time by the holders of
a majority in Liquidation Amount of the outstanding Preferred Securities. In
no event, however, will the holders of the Preferred Securities have the right
to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Company as the holder of the
Common Securities. No resignation or removal of a Trustee and no appointment
of a successor trustee will be effective until the acceptance of appointment
by the successor trustee in accordance with the provisions of the Trust
Agreement.
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CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default has occurred and is continuing, at any time or
times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property
(as defined in the Trust Agreement) may at the time be located, the Company,
as the holder of the Common Securities, will have the power to appoint one or
more Persons (as defined in the Trust Agreement) either to act as a co-
trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to act as separate trustee of any such Trust Property, in either
case with such powers as may be provided in the instrument of appointment, and
to vest in such Person or Persons in such capacity any property, title, right
or power deemed necessary or desirable, subject to the provisions of the Trust
Agreement. In case a Debenture Event of Default has occurred and is
continuing, the Property Trustee alone will have the power to make such
appointment.
MERGER OR CONSOLIDATION OF TRUSTEES
Any Person into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural Person may be merged or converted
or with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Trustee is a party, or any Person
succeeding to all or substantially all the corporate trust business of such
Trustee, will be the successor of such Trustee under the Trust Agreement,
provided such Person is otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF PREMIER CAPITAL
TRUST
Premier Capital Trust may not merge with or into, consolidate, amalgamate,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other Person, except as
described below. Premier Capital Trust may, at the request of the Company,
with the consent of the Administrative Trustees and without the consent of the
holders of the Preferred Securities, the Property Trustee or the Delaware
Trustee, merge with or into, consolidate, amalgamate, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to a trust organized as such under the laws of any State; provided,
that (i) such successor entity either (a) expressly assumes all of the
obligations of Premier Capital Trust with respect to the Preferred Securities,
or (b) substitutes for the Preferred Securities other securities having
substantially the same terms as the Preferred Securities (the "Successor
Securities") so long as the Successor Securities rank the same as the
Preferred Securities in priority with respect to distributions and payments
upon liquidation, redemption and otherwise, (ii) the Company expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee in its capacity as the holder of the
Subordinated Debentures, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any (including, if applicable, the American
Stock Exchange), (iv) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, (v) prior to
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Company has received an opinion from independent counsel to the
effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, and (b)
following such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither Premier Capital Trust nor such successor entity
will be required to register as an "investment company" under the Investment
Company Act, and (vi) the Company owns all of the common securities of such
successor entity and guarantees the obligations of such successor entity under
the Successor Securities at least to the extent provided by the Guarantee.
Notwithstanding the foregoing, Premier Capital Trust will not, except with the
consent of holders of 100% in Liquidation Amount of the Preferred Securities,
consolidate, amalgamate, merge with or into, or be replaced by or convey,
transfer or lease its properties and assets substantially as an entirety to
any other Person or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause Premier Capital Trust
or the successor entity to be classified as other than a grantor trust for
United States federal income tax purposes.
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VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under "Description of the Guarantee--Amendments
and Assignment" and as otherwise required by the Trust Act and the Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
The Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) with respect to acceptance of
appointment by a successor trustee, (ii) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under the Trust Agreement (provided such
amendment is not inconsistent with the other provisions of the Trust
Agreement), or (iii) to modify, eliminate or add to any provisions of the
Trust Agreement to such extent as is necessary to ensure that Premier Capital
Trust will be classified for United States federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that Premier Capital Trust will not be required to register as an
"investment company" under the Investment Company Act; provided, however, that
in the case of clause (ii), such action may not adversely affect in any
material respect the interests of any holder of Trust Securities, and any
amendments of such Trust Agreement will become effective when notice thereof
is given to the holders of Trust Securities. The Trust Agreement may be
amended by the Trustees and the Company with (i) the consent of holders
representing not less than a majority in the aggregate Liquidation Amount of
the outstanding Trust Securities, and (ii) receipt by the Trustees of an
opinion of counsel to the effect that such amendment or the exercise of any
power granted to the Trustees in accordance with such amendment will not
affect Premier Capital Trust's status as a grantor trust for United States
federal income tax purposes or Premier Capital Trust's exemption from status
as an "investment company" under the Investment Company Act. Notwithstanding
anything in this paragraph to the contrary, without the consent of each holder
of Trust Securities, the Trust Agreement may not be amended to (a) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date, or (b) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
The Trustees will not, so long as any Subordinated Debentures are held by
the Property Trustee, (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Property Trustee with respect to the
Subordinated Debentures, (ii) waive any past default that is waivable under
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Subordinated Debentures will be due and payable, or
(iv) consent to any amendment, modification or termination of the Indenture or
the Subordinated Debentures, where such consent is required, without, in each
case, obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Indenture requires the consent of each holder
of Subordinated Debentures affected thereby, no such consent will be given by
the Property Trustee without the prior consent of each holder of the Preferred
Securities. The Trustees may not revoke any action previously authorized or
approved by a vote of the holders of the Preferred Securities except by
subsequent vote of the holders of the Preferred Securities. The Property
Trustee will notify each holder of Preferred Securities of any notice of
default with respect to the Subordinated Debentures. In addition to obtaining
the foregoing approvals of the holders of the Preferred Securities, prior to
taking any of the foregoing actions, the Trustees must obtain an opinion of
counsel experienced in such matters to the effect that Premier Capital Trust
will not be classified as an association taxable as a corporation for United
States federal income tax purposes on account of such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Preferred Securities in the
manner set forth in the Trust Agreement.
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No vote or consent of the holders of Preferred Securities will be required
for Premier Capital Trust to redeem and cancel its Preferred Securities in
accordance with the Trust Agreement.
Notwithstanding the fact that holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Company, the Trustees or any
affiliate of the Company or any Trustee, will, for purposes of such vote or
consent, be treated as if they were not outstanding.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
The Preferred Securities to be issued in the Offering may be transferred or
exchanged in the manner and at the offices described below.
The Preferred Securities to be issued in the Offering initially will be
represented by one or more Preferred Securities in registered, global form
(collectively, the "Global Preferred Securities"). The Global Preferred
Securities will be deposited upon issuance with the Property Trustee as
custodian for The Depository Trust Company ("DTC"), in Boston, Massachusetts,
and registered in the name of DTC or its nominee, in each case for credit to
an account of a direct or indirect participant in DTC, as described below.
Except as set forth below, the Global Preferred Securities may be
transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee. Beneficial interests in the Global Preferred
Securities may not be exchanged for Certificated Preferred Securities except
in the limited circumstances described under "--Exchange of Book-Entry
Preferred Securities for Certificated Preferred Securities" below. In
addition, transfer of beneficial interests in the Global Preferred Securities
will be subject to the applicable rules and procedures of DTC and its direct
or indirect participants, which may change from time to time.
Depository Procedures. DTC has advised Premier Capital Trust and the Company
that DTC is a limited-purpose trust company created to hold securities for its
participating organizations (collectively, the "Participants") and to
facilitate the clearance and settlement of transactions in those securities
between Participants through electronic book-entry changes in accounts of its
Participants. The Participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. Access
to DTC's system is also available to other entities such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly (collectively,
the "Indirect Participants"). Persons who are not Participants may
beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest and transfer
of ownership interest of each actual purchaser of each security held by or on
behalf of DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised Premier Capital Trust and the Company that, pursuant to
procedures established by it, (i) upon deposit of the Global Preferred
Securities, DTC will credit the accounts of Participants on behalf of
purchasers of the Preferred Securities with portions of the Liquidation Amount
of the Global Preferred Securities and (ii) ownership of such interests in the
Global Preferred Securities will be shown on, and the transfer of ownership
thereof will be effected only through, records maintained by DTC (with respect
to the Participants) or by the Participants and the Indirect Participants
(with respect to other owners of beneficial interests in the Global Preferred
Securities).
Investors in the Global Preferred Securities may hold their interests
therein directly through DTC if they are Participants in such system, or
indirectly through organizations which are Participants in such system. All
interests in a Global Preferred Security may be subject to the procedures and
requirements of DTC. The laws of some states require that certain persons take
physical delivery in certificated form of securities that they own.
Consequently, the ability to transfer beneficial interests in a Global
Preferred Security to such persons will be limited to that extent. Because DTC
can act only on behalf of Participants, which in turn act on behalf of
Indirect Participants and certain banks, the ability of a person having
beneficial interests in a Global Preferred Security to pledge such interest to
persons or entities that do not participate in the DTC system, or otherwise
take actions in
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respect of such interests, may be affected by the lack of a physical
certificate evidencing such interests. For certain other restrictions on the
transferability of the Preferred Securities, see "--Exchange of Book-Entry
Preferred Securities for Certificated Preferred Securities."
Except as described below, owners of interests in the Global Preferred
Securities will not have Preferred Securities registered in their name, will
not receive physical delivery of Certificated Preferred Securities and will
not be considered the registered owners or holders thereof under the Trust
Agreement for any purpose.
Payments in respect of the Global Preferred Security registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC in its
capacity as the registered holder under the Trust Agreement. Under the terms
of the Trust Agreement, the Property Trustee will treat the persons in whose
names the Preferred Securities, including the Global Preferred Securities, are
registered as the owners thereof for the purpose of receiving such payments
and for any and all other purposes whatsoever. Consequently, neither the
Property Trustee nor any agent thereof has or will have any responsibility or
liability for (i) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interests in the Global Preferred Securities, or for maintaining,
supervising or reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global Preferred Securities or (ii) any other matter relating to the actions
and practices of DTC or any of its Participants or Indirect Participants, DTC
has advised Premier Capital Trust and the Company that its current practice,
upon receipt of any payment in respect of securities such as Preferred
Securities, is to credit the accounts of the relevant Participants with the
payment on the payment date, in amounts proportionate to their respective
holdings in Liquidation Amount of beneficial interests in the relevant
security as shown on the records of DTC unless DTC has reason to believe it
will not receive payment on such payment date. Payments by the Participants
and the Indirect Participants to the beneficial owners of Preferred Securities
will be governed by standing instructions and customary practices and will be
the responsibility of the Participants or the Indirect Participants and will
not be the responsibility of DTC, the Property Trustee, Premier Capital Trust
or the Company. Neither Premier Capital Trust nor the Company or the Property
Trustee will be liable for any delay by DTC or any of its Participants in
identifying the beneficial owners of the Preferred Securities, and Premier
Capital Trust or the Company and the Property Trustee may conclusively rely on
and will be protected in relying on instructions from DTC or its nominee for
all purposes.
DTC has advised Premier Capital Trust and the Company that it will take any
action permitted to be taken by a holder of Preferred Securities only at the
direction of one or more Participants to whose account with DTC interests in
the Global Preferred Securities are credited and only in respect of such
portion of the Liquidation Amount of the Preferred Securities as to which such
Participant or Participants has or have given such direction. However, if
there is an Event of Default under the Trust Agreement, DTC reserves the right
to exchange the Global Preferred Securities for Certificated Preferred
Securities and to distribute such Preferred Securities to its Participants.
The information in this section concerning DTC and book-entry systems has
been obtained from sources that Premier Capital Trust and the Company believe
to be reliable, but neither Premier Capital Trust nor the Company takes
responsibility for the accuracy thereof.
Exchange of Book-Entry Preferred Securities for Certificated Preferred
Securities. A Global Preferred Security is exchangeable for Certificated
Preferred Securities if (i) DTC (x) notifies the Company that it is unwilling
or unable to continue as depository for the Global Preferred Security and the
Company thereupon fails to appoint a successor depository within 90 days or
(y) has ceased to be a clearing agency registered under the Exchange Act and
the Company thereupon fails to appoint a successor depository within 90 days,
(ii) the Company in its sole discretion elects to cause the issuance of the
Preferred Securities in certificated form or (iii) there shall have occurred
and be continuing an Event of Default or any event which after notice or lapse
of time or both would be an Event of Default under the Trust Agreement. In
addition, beneficial interests in a Global
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Preferred Security may be exchanged for Certificated Preferred Securities upon
request but only upon at least 20 days prior written notice given to the
Property Trustee by or on behalf of DTC in accordance with customary
procedures. In all cases, Certificated Preferred Securities delivered in
exchange for any Global Preferred Security or beneficial interests therein
will be registered in the names, and issued in any approved denominations,
requested by or on behalf of DTC (in accordance with its customary
procedures).
PAYMENT AND PAYING AGENTS
Payments in respect of the Preferred Securities held in global form shall be
made to DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or, in respect of the Preferred Securities that are not
held by DTC, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the register. The
paying agent for the Preferred Securities will initially be the Property
Trustee and any co-paying agent chosen by the Property Trustee and acceptable
to the Administrative Trustees and the Company. The paying agent for the
Preferred Securities may resign as paying agent upon 30 days' written notice
to the Property Trustee and the Company. In the event that the Property
Trustee no longer is the paying agent for the Preferred Securities, the
Administrative Trustees will appoint a successor (which must be a bank or
trust company acceptable to the Administrative Trustees and the Company) to
act as paying agent.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as the registrar and the transfer agent for
the Preferred Securities. Registration of transfers of Preferred Securities
will be effected without charge by or on behalf of Premier Capital Trust, but
upon payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. Premier Capital Trust will not be
required to register or cause to be registered the transfer of Preferred
Securities after such Preferred Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than upon the occurrence and during the
continuance of an Event of Default, undertakes to perform only such duties as
are specifically set forth in the Trust Agreement and, after such Event of
Default, must exercise the same degree of care and skill as a prudent Person
would exercise or use in the conduct of his or her own affairs. Subject to the
Trust Agreement, and if the matter is not one on which holders of Preferred
Securities are entitled under the Trust Agreement to vote, then the Property
Trustee will take such action as is directed by the Company and if not so
directed, will take such action as it deems advisable and in the best
interests of the holders of the Trust Securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate Premier Capital Trust in such a way that Premier
Capital Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act or classified as an association
taxable as a corporation for United States federal income tax purposes and so
that the Subordinated Debentures will be treated as indebtedness of the
Company for United States federal income tax purposes. The Company and the
Administrative Trustees are authorized, in this connection, to take any
action, not inconsistent with applicable law, the Certificate of Trust of
Premier Capital Trust or the Trust Agreement, that the Company and the
Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, so long as such action does not materially
adversely affect the interests of the holders of the related Preferred
Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
The Trust Agreement and the Preferred Securities will be governed by, and
construed in accordance with, the internal laws of the State of Delaware.
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DESCRIPTION OF THE SUBORDINATED DEBENTURES
Concurrently with the issuance of the Preferred Securities, Premier Capital
Trust will invest the proceeds thereof, together with the consideration paid
by the Company for the Common Securities, in the Subordinated Debentures
issued by the Company. The Subordinated Debentures will be issued as unsecured
debt under the Indenture, to be dated as of , 1997, between the
Company and State Street, the Debenture Trustee. The Indenture will be
qualified as an indenture under the Trust Indenture Act. The following summary
of the material terms and provisions of the Subordinated Debentures and the
Indenture does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, the Indenture and to the Trust Indenture Act.
Wherever particular defined terms of the Indenture are referred to, but not
defined herein, such defined terms are incorporated herein by reference. The
form of the Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus forms a part.
GENERAL
The Subordinated Debentures will be limited in aggregate principal amount to
approximately $25,773,196 (or $29,639,175 if the over-allotment option
described under the heading "Underwriting" is exercised by the Underwriters),
such amount being the sum of the aggregate stated Liquidation Amount of the
Trust Securities. The Subordinated Debentures will bear interest at the annual
rate of % of the principal amount thereof, payable quarterly in arrears on
the Interest Payment Date beginning December 31, 1997, to the Person (as
defined in the Indenture) in whose name each Subordinated Debenture is
registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. It is anticipated
that, until the liquidation, if any, of Premier Capital Trust, the
Subordinated Debentures will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Trust Securities. The amount of
interest payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on the Subordinated Debentures is not a Business Day, then payment of
the interest payable on such date will be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on the date such payment
was originally due and payable. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on the amount
thereof (to the extent permitted by law) at the rate per annum of %
thereof, compounded quarterly. The term "interest," as used herein, includes
quarterly interest payments, interest on quarterly interest payments not paid
on the applicable Interest Payment Date and Additional Interest, as
applicable. The Subordinated Debentures will mature on December 31, 2027, the
Stated Maturity.
The Subordinated Debentures will be unsecured and will rank junior and be
subordinate in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company. Because the Company is a holding
company, the right of the Company to participate in any distribution of assets
of any subsidiary, including the Banking Subsidiaries, upon any such
subsidiary's liquidation or reorganization or otherwise (and thus the ability
of holders of the Subordinated Debentures to benefit indirectly from such
distribution), is subject to the prior claim of creditors of such subsidiary,
except to the extent that the Company may itself be recognized as a creditor
of such subsidiary. At June 30, 1997, the subsidiaries of the Company had
total liabilities (excluding liabilities owed to the Company) of approximately
$537 million, including deposits in the case of the Banking Subsidiaries. The
Subordinated Debentures will, therefore, be effectively subordinated to all
existing and future liabilities of the subsidiaries, and holders of
Subordinated Debentures should look only to the assets of the Company for
payments on the Subordinated Debentures. The Indenture does not limit the
incurrence or issuance of other secured or unsecured debt of the Company,
including Senior Debt, Subordinated Debt and Additional Senior Obligations,
whether under the Indenture or any existing indenture or other indenture that
the Company may enter into in the future or otherwise. See "--Subordination."
In addition, as the Company is a non-operating holding company, almost all
of the operating assets of the Company are owned by the Company's
subsidiaries. the Company relies primarily on dividends from such subsidiaries
to meet its obligations for payment of principal and interest on its
outstanding debt obligations, if
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any, and corporate expenses. Each of the Banking Subsidiaries is subject to
certain restrictions imposed by federal law on any extensions of credit to,
and certain other transactions with, the Company and certain other affiliates,
and on investments in stock or other securities thereof. Such restrictions
prevent the Company and such other affiliates from borrowing from any of the
Banking Subsidiaries unless the loans are secured by various types of
collateral. Further, such secured loans, other transactions and investments by
each of the Banking Subsidiaries are generally limited in amount as to the
Company and as to each of such other affiliates to 10% of such Banking
Subsidiaries' capital and surplus and as to the Company and all of such other
affiliates to an aggregate of 20% of the Banking Subsidiaries' capital and
surplus. In addition, payment of dividends to the Company by any of the
Banking Subsidiaries is subject to ongoing review by banking regulators and is
subject to various statutory limitations and in certain circumstances requires
prior approval by banking regulatory authorities. Under current regulations,
at June 30, 1997, the Banking Subsidiaries could have declared total dividends
to the Company of approximately $2.6 million. Federal and state regulatory
agencies also have the authority to limit further the Banking Subsidiaries'
payment of dividends based on other factors, such as the maintenance of
adequate capital for each Banking Subsidiary, which could reduce the amount of
dividends otherwise payable.
The Indenture does not contain provisions that afford holders of the
Subordinated Debentures protection in the event of a highly leveraged
transaction or other similar transaction involving the Company that may
adversely affect such holders.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
The Company has the right under the Indenture at any time during the term of
the Subordinated Debentures, so long as no Debenture Event of Default has
occurred and is continuing, to defer the payment of interest at any time, or
from time to time each, an Extended Interest Payment Period. The right to
defer the payment of interest on the Subordinated Debentures is limited,
however, to a period, in each instance, not exceeding 20 consecutive quarters
and no Extended Interest Payment Period may extend beyond the Stated Maturity
of the Subordinated Debentures. At the end of each Extended Interest Payment
Period, the Company must pay all interest then accrued and unpaid (together
with interest thereon at the annual rate of %, compounded quarterly, to the
extent permitted by applicable law). During an Extended Interest Payment
Period, interest will continue to accrue and holders of Subordinated
Debentures (or the holders of Preferred Securities if such securities are then
outstanding) will be required to accrue and recognize income for United States
federal income tax purposes. See "Material Federal Income Tax Consequences--
Potential Extension of Interest Payment Period and Original Issue Discount."
During any such Extended Interest Payment Period, the Company may not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (other than the reclassification of any class of the Company's capital
stock into another class of capital stock), (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities of the Company that rank pari passu with or junior in interest
to the Subordinated Debentures or make any guarantee payments with respect to
any guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to the
Subordinated Debentures (other than payments under the Guarantee), or (iii)
redeem, purchase or acquire less than all of the Subordinated Debentures or
any of the Preferred Securities. Prior to the termination of any such Extended
Interest Payment Period, the Company may further defer the payment of
interest; provided that no Extended Interest Payment Period may exceed 20
consecutive quarters or extend beyond the Stated Maturity of the Subordinated
Debentures. Upon the termination of any such Extended Interest Payment Period
and the payment of all amounts then due on any Interest Payment Date, the
Company may elect to begin a new Extended Interest Payment Period subject to
the above requirements. No interest will be due and payable during an Extended
Interest Payment Period, except at the end thereof. The Company has no present
intention of exercising its rights to defer payments of interest on the
Subordinated Debentures. The Company must give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election of
such Extended Interest Payment
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Period at least one Business Day prior to the earlier of (i) the next
succeeding date on which Distributions on the Trust Securities would have been
payable except for the election to begin such Extended Interest Payment
Period, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to the American Stock
Exchange, Inc. (or other applicable self-regulatory organization) or to
holders of the Preferred Securities, but in any event at least one Business
Day prior to such record date. Subject to the foregoing, there is no
limitation on the number of times that the Company may elect to begin an
Extended Interest Payment Period.
ADDITIONAL SUMS
If Premier Capital Trust or the Property Trustee is required to pay any
additional taxes, duties or other governmental charges as a result of the
occurrence of a Tax Event, the Company will pay as additional amounts,
referred to herein as Additional Interest, on the Subordinated Debentures such
additional amounts as may be required so that the net amounts received and
retained by Premier Capital Trust after paying any such additional taxes,
duties or other governmental charges will not be less than the amounts Premier
Capital Trust would have received had such additional taxes, duties or other
governmental charges not been imposed.
REDEMPTION OR EXCHANGE
The Company will have the right to redeem the Subordinated Debentures prior
to maturity (i) on or after December 31, 2007, in whole at any time or in part
from time to time, or (ii) at any time in whole (but not in part), within 180
days following the occurrence of a Capital Event, a Tax Event or an Investment
Company Event, in each case at a redemption price equal to the accrued and
unpaid interest in the Subordinated Debentures so redeemed to the date fixed
for redemption, plus 100% of the principal amount thereof. The proceeds of any
such redemption will be used by Premier Capital Trust to redeem the Preferred
Securities. Any such redemption prior to the Stated Maturity will be subject
to prior approval of the Federal Reserve if then required under applicable
capital guidelines or policies of the Federal Reserve.
The Federal Reserve's risk-based capital guidelines, which are subject to
change, currently provide that redemptions of permanent equity or other
capital instruments before stated maturity could have a significant impact on
a bank holding company's overall capital structure and that any organization
considering such a redemption should consult with the Federal Reserve before
redeeming any equity or capital instrument prior to maturity if such
redemption could have a material effect on the level or composition of the
organization's capital base (unless the equity or capital instrument were
redeemed with the proceeds of, or replaced by, a like amount of a similar or
higher quality capital instrument and the Federal Reserve considers the
organization's capital position to be fully adequate after the redemption).
The redemption of the Subordinated Debentures by the Company prior to their
Stated Maturity would constitute the redemption of capital instruments under
the Federal Reserve's current risk-based capital guidelines and may be subject
to the prior approval of the Federal Reserve. The redemption of the
Subordinated Debentures also could be subject to the additional prior approval
of the Federal Reserve under its current risk-based capital guidelines.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Subordinated Debentures
to be redeemed at its registered address. Unless the Company defaults in
payment of the Redemption Price for the Subordinated Debentures, on and after
the redemption date interest ceases to accrue on such Subordinated Debentures
or portions thereof called for redemption.
The Subordinated Debentures will not be subject to any sinking fund.
DISTRIBUTION UPON LIQUIDATION
As described under "Description of Preferred Securities--Liquidation
Distribution Upon Termination," under certain circumstances involving the
termination of Premier Capital Trust, the Subordinated Debentures
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may be distributed to the holders of the Preferred Securities in liquidation
of Premier Capital Trust after satisfaction of liabilities to creditors of
Premier Capital Trust as provided by applicable law. Any such distribution
will be subject to receipt of prior approval by the Federal Reserve if then
required under applicable policies or guidelines of the Federal Reserve. If
the Subordinated Debentures are distributed to the holders of Preferred
Securities upon the liquidation of Premier Capital Trust, the Company will use
its best efforts to list the Subordinated Debentures on the American Stock
Exchange, or stock exchanges, if any, on which the Preferred Securities are
then listed. There can be no assurance as to the market price of any
Subordinated Debentures that may be distributed to the holders of Preferred
Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
If at any time (i) there has occurred a Debenture Event of Default, (ii) the
Company is in default with respect to its obligations under the Guarantee, or
(iii) the Company has given notice of its election of an Extended Interest
Payment Period as provided in the Indenture with respect to the Subordinated
Debentures and has not rescinded such notice, or such Extended Interest
Payment Period, or any extension thereof, is continuing, the Company will not
(a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock (other than the reclassification of any class of the Company's
capital stock into another class of capital stock), (b) make any payment of
principal, interest or premium, if any, on or repay or repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to the Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Subordinated Debentures (other than payments under the
Guarantee), or (c) redeem, purchase or acquire less than all of the
Subordinated Debentures or any of the Preferred Securities.
SUBORDINATION
The Indenture provides that the Subordinated Debentures issued thereunder
are subordinated and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company. Upon any
payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceedings of the Company, the holders of Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company will first
be entitled to receive payment in full of principal of (and premium, if any)
and interest, if any, on such Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company before the holders of Subordinated
Debentures will be entitled to receive or retain any payment in respect of the
principal of or interest on the Subordinated Debentures.
In the event of the acceleration of the maturity of any Subordinated
Debentures, the holders of all Senior Debt, Subordinated Debt and Additional
Senior Obligations of the Company outstanding at the time of such acceleration
will first be entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders of the
Subordinated Debentures will be entitled to receive or retain any payment in
respect of the principal of or interest on the Subordinated Debentures.
No payments on account of principal or interest in respect of the
Subordinated Debentures may be made if there has occurred and is continuing a
default in any payment with respect to Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company or an event of default with
respect to any Senior Debt, Subordinated Debt or Additional Senior Obligations
of the Company resulting in the acceleration of the maturity thereof, or if
any judicial proceeding is pending with respect to any such default.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including
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obligations incurred in connection with the acquisition of property, assets or
businesses, (iii) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course
of business), (v) every capital lease obligation of such Person, and (vi)
every obligation of the type referred to in clauses (i) through (v) of another
Person and all dividends of another Person the payment of which, in either
case, such Person has guaranteed or is responsible for or liable, directly or
indirectly, as obligor or otherwise.
"Senior Debt" means, with respect to the Company, the principal of (and
premium, if any) and interest, if any (including interest accruing on or after
the filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in
such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
provided that such obligations are not superior in right of payment to the
Subordinated Debentures or to other Debt which is pari passu with, or
subordinated to, the Subordinated Debentures; provided, however, that Senior
Debt will not be deemed to include (i) any Debt of the Company which when
incurred and without respect to any election under section 1111(b) of the
United States Bankruptcy Code of 1978, as amended, was without recourse to the
Company, (ii) any Debt of the Company to any of its subsidiaries, (iii) any
Debt to any employee of the Company, (iv) any Debt which by its terms is
subordinated to trade accounts payable or accrued liabilities arising in the
ordinary course of business to the extent that payments made to the holders of
such Debt by the holders of the Subordinated Debentures as a result of the
subordination provisions of the Indenture would be greater than they otherwise
would have been as a result of any obligation of such holders to pay amounts
over to the obligees on such trade accounts payable or accrued liabilities
arising in the ordinary course of business as a result of subordination
provisions to which such Debt is subject, and (v) Debt which constitutes
Subordinated Debt.
"Subordinated Debt" means, with respect to the Company, the principal of
(and premium, if any) and interest, if any (including interest accruing on or
after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not such claim for post-petition interest is allowed
in such proceeding), on Debt, whether incurred on or prior to the date of the
Indenture or thereafter incurred, which is by its terms expressly provided to
be junior and subordinate to other Debt of the Company (other than the
Subordinated Debentures).
"Additional Senior Obligations" means, with respect to the Company, all
indebtedness, whether incurred on or prior to the date of the Indenture or
thereafter incurred, for claims in respect of derivative products such as
interest and foreign exchange rate contracts, commodity contracts and similar
arrangements; provided, however, that Additional Senior Obligations do not
include claims in respect of Senior Debt or Subordinated Debt or obligations
which, by their terms, are expressly stated to be not superior in right of
payment to the Subordinated Debentures or to rank pari passu in right of
payment with the Subordinated Debentures. "Claim," as used herein, has the
meaning assigned thereto in Section 101(4) of the United States Bankruptcy
Code of 1978, as amended.
The Indenture places no limitation on the amount of additional Senior Debt,
Subordinated Debt or Additional Senior Obligations that may be incurred by the
Company. The Company expects from time to time to incur indebtedness
constituting Senior Debt, Subordinated Debt and Additional Senior Obligations.
As of June 30, 1997, the Company had consolidated Senior Debt, Subordinated
Debt and Additional Senior Obligations of approximately $537 million. Because
the Company is a holding company, the Subordinated Debentures are effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, including obligations to depositors of the Banking Subsidiaries.
FORM, REGISTRATION AND TRANSFER
If the Subordinated Debentures are distributed to the holders of the
Preferred Securities issued in the Offering, the Subordinated Debentures may
be represented by one or more global certificates registered in the
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name of Cede & Co. as the nominee of DTC. The depository arrangements for such
Subordinated Debentures are expected to be substantially similar to those in
effect for the Preferred Securities issued in the Offering. For a description
of DTC and the terms of the depository arrangements relating to payments,
transfers, voting rights, redemptions and other notices and other matters, see
"Description of Preferred Securities--Form, Denomination, Book-Entry
Procedures and Transfer."
PAYMENT AND PAYING AGENTS
Payment of principal of and any interest on the Subordinated Debentures will
be made at the office of the Debenture Trustee in Boston, Massachusetts,
except that, at the option of the Company, payment of any interest may be made
(i) by check mailed to the address of the Person entitled thereto as such
address appears in the register of holders of the Subordinated Debentures, or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the register of holders of the Subordinated Debentures, provided
that proper transfer instructions have been received by the regular record
date. Payment of any interest on Subordinated Debentures will be made to the
Person in whose name such Subordinated Debenture is registered at the close of
business on the regular record date for such interest, except in the case of
defaulted interest. The Company may at any time designate additional paying
agents for the Subordinated Debentures or rescind the designation of any
paying agent for the Subordinated Debentures; however, the Company will at all
times be required to maintain a paying agent, and each place of payment for
the Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any paying agent for the
Subordinated Debentures, or then held by the Company in trust, for the payment
of the principal of or interest on the Subordinated Debentures and remaining
unclaimed for two years after such principal or interest has become due and
payable will be repaid to the Company or (if then held in trust by the
Company) will be discharged from such trust and the holder of such
Subordinated Debenture will thereafter look, as general unsecured creditor,
only to the Company for payment thereof.
REGISTRAR AND TRANSFER AGENT
The Debenture Trustee will act as the registrar and the transfer agent for
the Subordinated Debentures. Subordinated Debentures may be presented for
registration of transfer (with the form of transfer endorsed thereon, or a
satisfactory written instrument of transfer, duly executed), at the office of
the registrar. The Company may at any time rescind the designation of any such
transfer agent or approve a change in the location through which any such
transfer agent acts; provided that the Company maintains a transfer agent in
Atlanta, Georgia. The Company may at any time designate additional transfer
agents with respect to the Subordinated Debentures. In the event of any
redemption, neither the Company nor the Debenture Trustee will be required to
(i) issue, register the transfer of or exchange Subordinated Debentures during
a period beginning at the opening of business 15 days before the day of
selection for redemption of Subordinated Debentures and ending at the close of
business on the day of mailing of the relevant notice of redemption, or (ii)
transfer or exchange any Subordinated Debentures so selected for redemption,
except, in the case of any Subordinated Debentures being redeemed in part, any
portion thereof not to be redeemed.
MODIFICATION OF INDENTURE
The Company and the Debenture Trustee may, from time to time without the
consent of the holders of the Subordinated Debentures, amend, waive or
supplement the Indenture for specified purposes, including, among other
things, curing ambiguities, defects or inconsistencies and qualifying, or
maintaining the qualification of, the Indenture under the Trust Indenture Act.
The Indenture contains provisions permitting the Company and the Debenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the outstanding Subordinated Debentures, to modify the
Indenture; provided, that no such modification may, without the consent of the
holder of each outstanding Subordinated Debenture affected by such proposed
modification, (i) extend the fixed maturity of the Subordinated Debentures, or
reduce the principal amount thereof, or reduce
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the rate or extend the time of payment of interest thereon, or (ii) reduce the
percentage of principal amount of Subordinated Debentures, the holders of
which are required to consent to any such modification of the Indenture;
provided that so long as any of the Preferred Securities remain outstanding,
no such modification may be made that requires the consent of the holders of
the Subordinated Debentures, and no termination of the Indenture may occur,
and no waiver of any Debenture Event of Default may be effective, without the
prior consent of the holders of at least a majority of the aggregate
Liquidation Amount of the Preferred Securities.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Subordinated Debentures that has occurred and is
continuing constitutes an event of default (each, a "Debenture Event of
Default") with respect to the Subordinated Debentures:
(i) failure for 30 days to pay any interest on the Subordinated Debentures,
when due (subject to the deferral of any due date in the case of an
Extended Interest Payment Period); or
(ii) failure to pay any principal on the Subordinated Debentures when due
whether at maturity, upon redemption, by declaration or otherwise; or
(iii) failure to observe or perform in any material respect certain other
covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or the holders of at least
25% in aggregate outstanding principal amount of the Subordinated
Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company.
As described in "Description of Preferred Securities--Events of Default;
Notice," the occurrence of a Debenture Event of Default will also constitute
an Event of Default in respect of the Trust Securities.
The holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee.
The Debenture Trustee, or the holders of not less than 25% in aggregate
outstanding principal amount of the Subordinated Debentures, may declare the
principal due and payable immediately upon a Debenture Event of Default. The
holders of a majority in aggregate outstanding principal amount of the
Subordinated Debentures may annul such declaration and waive the default if
the default (other than the non-payment of the principal of the Subordinated
Debentures which has become due solely by such acceleration) has been cured
and a sum sufficient to pay all matured installments of interest and principal
due otherwise than by acceleration has been deposited with the Debenture
Trustee. Should the holders of the Subordinated Debentures fail to annul such
declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Preferred Securities will have such right.
The Company is required to file annually with the Debenture Trustee a
certificate as to whether or not the Company is in compliance with all the
conditions and covenants applicable to it under the Indenture.
If a Debenture Event of Default has occurred and is continuing, the Property
Trustee will have the right to declare the principal of and the interest on
such Subordinated Debentures, and any other amounts payable under the
Indenture, to be forthwith due and payable and to enforce its other rights as
a creditor with respect to such Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF THE PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest on or
principal of the Subordinated Debentures on the payment date on which such
payment is due and payable, then a holder of Preferred Securities may
institute a Direct Action against the Company for enforcement of payment to
such holder of the principal of or interest on such Subordinated Debentures
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities of such holder. In connection with such Direct Action,
the Company will have a right of set-off under the Indenture to the extent of
any payment made by the Company to such holder of Preferred Securities in the
Direct Action. The Company may not amend the Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of the
holders of all of the Preferred Securities. If the right to bring a Direct
Action is
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removed, Premier Capital Trust may become subject to the reporting obligations
under the Exchange Act. The Company has the right under the Indenture to set-
off any payment made to such holder of Preferred Securities by the Company in
connection with a Direct Action.
The holders of the Preferred Securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the Subordinated Debentures except under the
circumstances described in the preceding paragraph. See "Description of the
Preferred Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Company may not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to
any Person, and no Person may consolidate with or merge into the Company or
sell, convey, transfer or otherwise dispose of its properties and assets
substantially as an entirety to the Company, unless (i) in the event the
Company consolidates with or merges into another Person or conveys or
transfers its properties and assets substantially as an entirety to any
Person, the successor Person is organized under the laws of the United States
or any state or the District of Columbia, and such successor Person expressly
assumes by supplemental indenture the Company's obligations on the
Subordinated Debentures issued under the Indenture, and (ii) immediately after
giving effect thereto, no Debenture Event of Default, and no event which,
after notice or lapse of time, or both, would become a Debenture Event of
Default, has occurred and is continuing, and (iii) certain other conditions as
prescribed in the Indenture are met.
SATISFACTION AND DISCHARGE
The Indenture will cease to be of further effect (except as to the Company's
obligations to pay certain sums due pursuant to the Indenture and to provide
certain officers' certificates and opinions of counsel described therein) and
the Company will be deemed to have satisfied and discharged the Indenture
when, among other things, all Subordinated Debentures not previously delivered
to the Debenture Trustee for cancellation (i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year or
are to be called for redemption deposits or causes to be deposited with the
Debenture Trustee funds, in trust, for the purpose and in an amount sufficient
to pay and discharge the entire indebtedness on the Subordinated Debentures
not previously delivered to the Debenture Trustee for cancellation, for the
principal and interest to the date of the deposit or to the Stated Maturity or
redemption date, as the case may be.
GOVERNING LAW
The Indenture and the Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of Georgia.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee has and is subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Subordinated Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
State Street, the Debenture Trustee, may serve from time to time as trustee
under other indentures or trust agreements with the Company or its
subsidiaries relating to other issues of their securities. In addition, the
Company and certain of its affiliates may have other banking relationships
with State Street and its affiliates.
MISCELLANEOUS
The Company has agreed, pursuant to the Indenture, for so long as Trust
Securities remain outstanding, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of Premier Capital Trust (provided
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that certain successors which are permitted pursuant to the Indenture may
succeed to the Company's ownership of the Common Securities), (ii) not to
voluntarily terminate, wind up or liquidate Premier Capital Trust, except upon
prior approval of the Federal Reserve if then so required under applicable
capital guidelines or policies of the Federal Reserve, and (a) in connection
with a distribution of Subordinated Debentures to the holders of the Preferred
Securities in liquidation of Premier Capital Trust, or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the terms
and provisions of the Trust Agreement, to cause Premier Capital Trust to
remain classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes.
DESCRIPTION OF THE GUARANTEE
The Preferred Securities Guarantee will be executed and delivered by the
Company concurrently with the issuance of the Preferred Securities for the
benefit of the holders of the Preferred Securities. The Guarantee will be
qualified as an indenture under the Trust Indenture Act. The Guarantee Trustee
will act as indenture trustee under the Guarantee for purposes of complying
with the provisions of the Trust Indenture Act. The Guarantee Trustee, State
Street, will hold the Guarantee for the benefit of the holders of the
Preferred Securities. The following summary of the material terms and
provisions of the Guarantee does not purport to be complete and is subject to,
and qualified in its entirety by reference to, all of the provisions of the
Guarantee and the Trust Indenture Act. Wherever particular defined terms of
the Guarantee are referred to, but not defined herein, such defined terms are
incorporated herein by reference. The form of the Guarantee has been filed as
an exhibit to the Registration Statement of which this Prospectus forms a
part.
GENERAL
The Company will, pursuant to the Guarantee, irrevocably agree to pay in
full on a subordinated basis, to the extent set forth therein, the Guarantee
Payments (as defined below) to the holders of the Preferred Securities, as and
when due, regardless of any defense, right of set-off or counterclaim that
Premier Capital Trust may have or assert other than the defense of payment.
The following payments with respect to the Preferred Securities, to the extent
not paid by or on behalf of Premier Capital Trust (the "Guarantee Payments"),
will be subject to the Guarantee: (i) any accrued and unpaid Distributions
required to be paid on the Preferred Securities, to the extent that Premier
Capital Trust has funds available therefor at such time, (ii) the Redemption
Price with respect to any Preferred Securities called for redemption to the
extent that Premier Capital Trust has funds available therefor at such time,
and (iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of Premier Capital Trust (other than in connection with the
distribution of Subordinated Debentures to the holders of Preferred Securities
or a redemption of all of the Preferred Securities), the lesser of (a) the
amount of the Liquidation Distribution, to the extent Premier Capital Trust
has funds available therefor at such time, and (b) the amount of assets of
Premier Capital Trust remaining available for distribution to holders of
Preferred Securities in liquidation of Premier Capital Trust. The obligation
of the Company to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by the Company to the holders of the Preferred
Securities or by causing Premier Capital Trust to pay such amounts to such
holders.
The Company will, through the Guarantee, the Trust Agreement, the
Subordinated Debentures and the Indenture, taken together; fully, irrevocably
and unconditionally guarantee all of the Premier Capital Trust's obligations
under the Preferred Securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Preferred Securities. See "Relationship Among
the Preferred Securities, the Subordinated Debentures and the Guarantee."
The Guarantee will not apply to any payment of Distributions except to the
extent Premier Capital Trust has funds available therefor. If the Company does
not make interest payments on the Subordinated Debentures held by Premier
Capital Trust, Premier Capital Trust will not pay Distributions on the
Preferred Securities and will not have funds legally available therefor.
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STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company in the same
manner as the Subordinated Debentures. The Guarantee does not place a
limitation on the amount of additional Senior Debt, Subordinated Debt or
Additional Senior Obligations that may be incurred by the Company. The Company
expects from time to time to incur additional indebtedness constituting Senior
Debt, Subordinated Debt and Additional Senior Obligations.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other Person or entity). The
Guarantee will not be discharged except by payment of the Guarantee Payments
in full to the extent not paid by Premier Capital Trust or upon distribution
of the Subordinated Debentures to the holders of the Preferred Securities.
Because the Company is a holding company, the right of the Company to
participate in any distribution of assets of any subsidiary, including any of
the Banking Subsidiaries, upon such subsidiaries' liquidation or
reorganization or otherwise is subject to the prior claims of creditors of
that subsidiary, except to the extent the Company may itself be recognized as
a creditor of that subsidiary. The Company's obligations under the Guarantee,
therefore, will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and claimants should look only to
the assets of the Company for payments thereunder.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Preferred Securities (in which case no vote will
be required), the Guarantee may not be amended without the prior approval of
the holders of not less than a majority of the aggregate Liquidation Amount of
the outstanding Preferred Securities. See "Description of Preferred
Securities--Voting Rights; Amendment of Trust Agreement." All guarantees and
agreements contained in the Guarantee will bind the successors, assigns,
receivers, trustees and representatives of the Company and will inure to the
benefit of the holders of the Preferred Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any registered holder of Preferred Securities may institute a legal
proceeding directly against the Company to enforce its rights under the
Guarantee without first instituting a legal proceeding against Premier Capital
Trust, the Guarantee Trustee or any other Person.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the Guarantee and, after
default with respect to the Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to such provisions, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by the Guarantee at the
request of any holder of any Preferred Securities, unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
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For information concerning the relationship between State Street Bank &
Trust Company, the Guarantee Trustee, and the Company, see "Description of the
Subordinated Debentures--Information Concerning the Debenture Trustee."
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon (i)
full payment of the Redemption Price of the Preferred Securities, (ii) full
payment of the amounts payable upon liquidation of Premier Capital Trust, or
(iii) distribution of the Subordinated Debentures to the holders of the
Preferred Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Preferred
Securities must restore payment of any sums paid under such Preferred
Securities or the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of Georgia.
EXPENSE AND LIABILITIES AGREEMENT
The Company will, pursuant to the Agreement as to Expenses and Liabilities
entered into by it under the Trust Agreement (the "Expense Agreement"),
irrevocably and unconditionally guarantee to each person or entity to whom
Premier Capital Trust becomes indebted or liable, the full payment of any
costs, expenses or liabilities of Premier Capital Trust, other than
obligations of Premier Capital Trust to pay to the holders of the Preferred
Securities or other similar interests in Premier Capital Trust of the amounts
due such holders pursuant to the terms of the Preferred Securities or such
other similar interests, as the case may be. Third party creditors of Premier
Capital Trust may proceed directly against the Company under the Expense
Agreement, regardless of whether such creditors had notice of the Expense
Agreement.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES, THE SUBORDINATED
DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent Premier Capital Trust has funds available for the payment of
such Distributions) are irrevocably guaranteed by the Company as and to the
extent set forth under "Description of the Guarantee." The Company and Premier
Capital Trust believe that, taken together, the obligations of the Company
under the Subordinated Debentures, the Indenture, the Trust Agreement, the
Expense Agreement, and the Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee, on a subordinated basis, of payment
of Distributions and other amounts due on the Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such a guarantee. It is only the combined
operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the obligations of Premier Capital
Trust under the Preferred Securities. If and to the extent that the Company
does not make payments on the Subordinated Debentures, Premier Capital Trust
will not pay Distributions or other amounts due on the Preferred Securities.
The Guarantee does not cover payment of Distributions when Premier Capital
Trust does not have sufficient funds to pay such Distributions. In such event,
the remedy of a holder of Preferred Securities is to institute a legal
proceeding directly against the Company for enforcement of payment of such
Distributions to such holder. The obligations of the Company under the
Guarantee are subordinate and junior in right of payment to all Senior Debt,
Subordinated Debt and Additional Senior Obligations of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Subordinated Debentures, such payments will be sufficient to cover
Distributions and other payments due on the Preferred Securities, primarily
because (i) the aggregate principal amount of the Subordinated Debentures will
be equal to the sum of the aggregate stated Liquidation Amount of the Trust
Securities, (ii) the interest rate and interest and other payment dates on the
Subordinated Debentures will match the Distribution rate and Distribution and
other payment dates for the Preferred Securities, (iii) the Company will pay
for all and any costs, expenses and liabilities of Premier Capital Trust
(except the obligations of Premier Capital Trust to holders of the Preferred
Securities), and (iv) the Trust Agreement further provides that Premier
Capital Trust will not engage in any activity that is not consistent with the
limited purposes of Premier Capital Trust.
Notwithstanding anything to the contrary in the Indenture, the Company has
the right to set-off any payment it is otherwise required to make thereunder
with and to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Security may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, Premier Capital
Trust or any other Person. A default or event of default under any Senior
Debt, Subordinated Debt or Additional Senior Obligations of the Company would
not constitute a default or Event of Default. In the event, however, of
payment defaults under, or acceleration of, Senior Debt, Subordinated Debt or
Additional Senior Obligations of the Company, the subordination provisions of
the Indenture provide that no payments may be made in respect of the
Subordinated Debentures until such Senior Debt, Subordinated Debt or
Additional Senior Obligations have been paid in full or any payment default
thereunder has been cured or waived. Failure to make required payments on the
Subordinated Debentures would constitute an Event of Default.
LIMITED PURPOSE OF PREMIER CAPITAL TRUST
The Preferred Securities evidence a preferred undivided beneficial interest
in the assets of Premier Capital Trust. Premier Capital Trust exists for the
sole purpose of issuing the Trust Securities and investing the proceeds
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thereof in Subordinated Debentures. A principal difference between the rights
of a holder of a Preferred Security and the rights of a holder of a
Subordinated Debenture is that a holder of a Subordinated Debenture is
entitled to receive from the Company the principal amount of and interest
accrued on Subordinated Debentures held, while a holder of Preferred
Securities is entitled to receive Distributions from Premier Capital Trust (or
from the Company under the Guarantee) if and to the extent Premier Capital
Trust has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
Premier Capital Trust involving the liquidation of the Subordinated
Debentures, the holders of the Preferred Securities will be entitled to
receive, out of assets held by Premier Capital Trust, the Liquidation
Distribution in cash. See "Description of Preferred Securities--Liquidation
Distribution Upon Termination." Upon any voluntary or involuntary liquidation
or bankruptcy of the Company, the Property Trustee, as holder of the
Subordinated Debentures, would be a subordinated creditor of the Company,
subordinated in right of payment to all Senior Debt, Subordinated Debt and
Additional Senior Obligations of the Company, but entitled to receive payment
in full of principal and interest before any shareholders of the Company
receive payments or distributions. Since the Company is the guarantor under
the Guarantee and has agreed to pay for all costs, expenses and liabilities of
Premier Capital Trust (other than the obligations of Premier Capital Trust to
the holders of its Preferred Securities), the positions of a holder of the
Preferred Securities and a holder of the Subordinated Debentures relative to
other creditors and to shareholders of the Company in the event of liquidation
or bankruptcy of the Company are expected to be substantially the same.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
GENERAL
In the opinion of Womble Carlyle Sandridge & Rice, PLLC, counsel to the
Company and Premier Capital Trust the following discussion summarizes the
material United States federal income tax considerations that may be relevant
to the purchasers of Preferred Securities. This summary is based upon current
provisions of the Internal Revenue Code of 1986, as amended (the "Code"),
regulations thereunder and current administrative rulings and court decisions,
all of which are subject to change at any time, with possible retroactive
effect. Subsequent changes may cause tax consequences to vary substantially
from the consequences described below. Furthermore, the authorities on which
the following summary is based are subject to various interpretations, and it
is therefore possible that the United States federal income tax treatment of
the purchase, ownership, and disposition of Preferred Securities may differ
from the treatment described below.
No attempt has been made in the following discussion to comment on all
United States federal income tax matters affecting purchasers of Preferred
Securities. Moreover, the discussion generally focuses on holders of Preferred
Securities who (i) are individual citizens or residents of the United States,
corporations and partnerships created or organized in or under the laws of the
United States or any political subdivision thereof, an estate--the income of
which is includible in its gross income for United States federal income tax
purposes without regard to its source, or a trust if a court within the Untied
States is able to exercise primary supervision over the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the trust ("U.S. Holders"), and (ii) who acquire
Preferred Securities on their original issue at their offering price and hold
Preferred Securities as capital assets. The discussion does not address
persons who are not U.S. Holders or all the tax consequences that may be
relevant to U.S. Holders who may be subject to special tax treatment, such as,
for example, banks, thrifts, real estate investment trusts, regulated
investment companies, insurance companies, dealers in securities or
currencies, tax-exempt investors, or persons that will hold the Preferred
Securities as a position in a "straddle," as part of a "synthetic security" or
"hedge," as part of a "conversion transaction" or other integrated investment,
or as other than a capital asset. The following summary also does not address
the tax consequences to persons that have a functional currency other than the
U.S. dollar or the tax consequences to shareholders, partners or beneficiaries
of a holder of Preferred Securities. Further, it does not include any
description of any alternative minimum tax consequences or the tax laws of any
state or local government or of any foreign government that may be applicable
to the Preferred Securities.
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EACH PROSPECTIVE INVESTOR SHOULD CONSULT, AND SHOULD RELY EXCLUSIVELY ON,
SUCH INVESTOR'S OWN TAX ADVISORS IN ANALYZING THE FEDERAL, STATE, LOCAL AND
FOREIGN TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP OR DISPOSITION OF
PREFERRED SECURITIES.
CLASSIFICATION OF THE SUBORDINATED DEBENTURES
The Company intends to take the position that the Subordinated Debentures
will be classified for United States federal income tax purposes as
indebtedness of the Company under current law, and, by acceptance of a
Preferred Security, each holder covenants to treat the Subordinated Debentures
as indebtedness and the Preferred Securities as evidence of an indirect
beneficial ownership interest in the Subordinated Debentures. No assurance can
be given, however, that such position of the Company will not be challenged by
the Internal Revenue Service or, if challenged, that such a challenge will not
be successful. The remainder of this discussion assumes that the Subordinated
Debentures will be classified for United States federal income tax purposes as
indebtedness of the Company.
CLASSIFICATION OF PREMIER CAPITAL TRUST
With respect to the Preferred Securities, Womble Carlyle Sandridge & Rice,
PLLC, counsel to the Company and Premier Capital Trust, has rendered its
opinion generally to the effect that, under then current law and assuming full
compliance with the terms of the Trust Agreement and Indenture, Premier
Capital Trust will be classified for United States federal income tax purposes
as a grantor trust and not as an association taxable as a corporation.
Accordingly, for United States federal income tax purposes, each holder of
Preferred Securities generally will be treated as owning an undivided
beneficial interest in the Subordinated Debentures, and each holder will be
required to include in its gross income each item of income or gain with
respect to its allocable share of the Subordinated Debentures.
POTENTIAL EXTENSION OF INTEREST PAYMENT PERIOD AND ORIGINAL ISSUE DISCOUNT
The Company's option to extend the interest payment period on the
Subordinated Debentures may cause the indebtedness to be issued with original
issue discount ("OID"). Under recently issued Treasury regulations (the
"Regulations"), a contingency that stated interest will not be timely paid
that is "remote" will be ignored in determining whether such debt instrument
is issued with OID. As a result of the terms and conditions of the
Subordinated Debentures that prohibit certain payments with respect to the
Company's capital stock and indebtedness if the Company elects to extend
interest payment periods, the Company believes that the likelihood of its
exercising its option to defer payments is remote. Based on the foregoing, the
Company intends to take the position that the Subordinated Debentures will not
be considered to be issued with OID at the time of their original issuance. If
this position is sustained, a holder of Preferred Securities should include in
gross income such holder's allocable share of interest on the Subordinated
Debentures in accordance with its own method of tax accounting.
There can be no assurance, however, that the Internal Revenue Service will
not successfully contest the Company's position. If the Internal Revenue
Service were successful in such a contention, then all of the stated interest
payments on the Subordinated Debentures would be treated as OID. In such case,
the holders of the Preferred Securities would be required to include OID in
income on an economic accrual basis regardless of whether any interest is
actually paid or their method of tax accounting, but would not be required to
report actual payments of interest as taxable income.
If the Company's position that there is no OID initially is upheld, but the
Company exercises its option to defer any payment of interest, the
Subordinated Debentures would at the time of such exercise be treated as
issued with OID, and all stated interest thereafter payable on the
Subordinated Debentures would be treated as OID. In such event, the holders of
the Preferred Securities would be required to account for the OID as stated in
the immediately preceding paragraph. Consequently, a holder of Preferred
Securities would be required to include in gross income OID even though the
Company would not make any actual interest payments during an Extension
Period.
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MARKET DISCOUNT AND ACQUISITION PREMIUM
Holders of Preferred Securities other than a holder who purchased the
Preferred Securities upon original issuance may be considered to have acquired
their undivided interests in the Subordinated Debentures with "market
discount" or "acquisition premium" as such phrases are defined for United
States federal income tax purposes. Such holders are advised to consult their
tax advisors as to the income tax consequences of the acquisition, ownership
and disposition of the Preferred Securities.
RECEIPT OF SUBORDINATED DEBENTURES OR CASH UPON LIQUIDATION OF PREMIER CAPITAL
TRUST
Under certain circumstances, as described under "Description of the
Preferred Securities--Redemption or Exchange" and "--Liquidation Distribution
Upon Termination," the Subordinated Debentures may be distributed to holders
of Preferred Securities upon a liquidation of Premier Capital Trust. Under
current United States federal income tax law, such a distribution would be
treated as a nontaxable event to each such holder and would result in such
holder having an aggregate tax basis in the Subordinated Debentures received
in the liquidation equal to such holder's aggregate tax basis in the Preferred
Securities immediately before the distribution. A holder's holding period in
the Subordinated Debentures so received in liquidation of Premier Capital
Trust would include the period for which such holder held the Preferred
Securities.
If, however, a Tax Event were to occur based on Premier Capital Trust's
being treated as an association taxable as a corporation, the distribution
would likely constitute a taxable event to holders of the Preferred
Securities. Under certain circumstances described herein, the Subordinated
Debentures may be redeemed for cash and the proceeds of such redemption
distributed to holders in redemption of their Preferred Securities. Under
current law, such a redemption would, for United States federal income tax
purposes, constitute a taxable disposition of the redeemed Preferred
Securities, and a holder would recognize gain or loss as if the holder sold
such Preferred Securities for cash. See "Description of the Preferred
Securities--Redemption or Exchange" and "--Liquidation Distribution Upon
Termination."
DISPOSITION OF PREFERRED SECURITIES
A holder of Preferred Securities that sells Preferred Securities will
recognize gain or loss equal to the difference between its adjusted tax basis
for the Preferred Securities and the amount realized on the sale of such
Preferred Securities. Assuming that the Company's position that there is no
OID initially is upheld, and the Company does not exercise its option to defer
payment of interest on the Subordinated Debentures, a Preferred Security
holder's adjusted tax basis for the Preferred Securities generally will be its
initial purchase price. If the Subordinated Debentures are deemed to have been
issued initially with OID, or OID results due to the Company's deferral of any
interest payment, a Preferred Security holder's adjusted tax basis for the
Preferred Securities generally will be its initial purchase price, increased
by OID previously included in such holder's gross income to the date of
disposition and decreased by distributions and other payments received on the
Preferred Securities since the date the Subordinated Debentures are deemed to
have OID. Such gain or loss generally will be a capital gain or loss (except
to the extent any amount realized is treated as a payment of accrued interest
with respect to such holder's pro rata share of the Subordinated Debentures)
and will be a short-term, mid-term or long-term capital gain or loss depending
on the length of time the Preferred Securities have been held.
The Preferred Securities may trade at a price that does not accurately
reflect the value of accrued but unpaid interest with respect to the
underlying Subordinated Debentures. A holder that disposes of its Preferred
Securities between record dates for payments of distributions thereon will be
required to include accrued but unpaid interest on the Subordinated Debentures
through the date of disposition in income as ordinary income, and to add such
amount to its adjusted tax basis in its pro rata share of the underlying
Subordinated Debentures deemed disposed of. To the extent the selling price is
less than the holder's adjusted tax basis (which basis will include, in the
form of OID, all accrued but unpaid interest), a holder will recognize a
capital loss. Subject to certain limited exceptions, capital losses cannot be
applied to offset ordinary income for United States federal income tax
purposes.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Interest paid on the Subordinated Debentures, or the amount of OID on the
Subordinated Debentures, if applicable, deemed held of record by individual
citizens or residents of the United States, or certain trusts,
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estates, and partnerships, will be reported to the Internal Revenue Service
("IRS") on Forms 1099, which forms should be mailed to such holders of
Preferred Securities by January 31 following each calendar year. Payments made
on, and proceeds from the sale of, the Preferred Securities may be subject to
a "backup" withholding tax (currently at 31%) unless the holder complies with
certain identification and other requirements. Any amounts withheld under the
backup withholding rules will be allowed as a credit against the holder's U.S.
federal income tax liability provided the required information is provided to
the IRS.
THE U.S. FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR
GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON THE
PARTICULAR SITUATION OF A HOLDER OF PREFERRED SECURITIES. HOLDERS OF PREFERRED
SECURITIES SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE
PREFERRED SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN U.S. FEDERAL
OR OTHER TAX LAWS.
ERISA CONSIDERATIONS
Employee benefit plans that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code
("Plans"), generally may purchase Preferred Securities, subject to the
investing fiduciary's determination that the investment in Preferred
Securities satisfies ERISA's fiduciary standards and other requirements
applicable to investments by the Plan.
In any case, the Company and/or any of its affiliates may be considered a
"party in interest" (within the meaning of ERISA) or a "disqualified person"
(within the meaning of Section 4975 of the Code) with respect to certain plans
(generally, Plans maintained or sponsored by, or contributed to by, any such
persons with respect to which the Company or an affiliate is a fiduciary or
Plans for which the Company or an affiliate provides services). The
acquisition and ownership of Preferred Securities by a Plan (or by an
individual retirement arrangement or other Plans described in Section
4975(e)(1) of the Code) with respect to which the Company or any of its
affiliates is considered a party in interest or a disqualified person may
constitute or result in a prohibited transaction under ERISA or Section 4975
of the Code, unless such Preferred Securities are acquired pursuant to and in
accordance with an applicable exemption.
As a result, Plans with respect to which the Company or any of its
affiliates is a party in interest or a disqualified person should not acquire
Preferred Securities unless such Preferred Securities are acquired pursuant to
and in accordance with an applicable exemption such as Prohibited Transaction
Class Exemption ("PTCE") 84-14 (an exemption for certain transactions
determined by an independent qualified professional asset manager), PTCE 91-38
(an exemption for certain transactions involving bank collective investment
funds), PTCE 90-1 (an exemption for certain transactions involving insurance
company pooled separate accounts), PTCE 95-60 (an exemption for transactions
involving certain insurance company general accounts) or PTCE 96-23 (an
exemption for certain transactions determined by an in-house asset manager.
Plans or other entities whose assets include Plan assets subject to ERISA or
Section 4975 of the Code proposing to acquire Preferred Securities should
consult with their own counsel.
In addition, a Plan fiduciary considering the purchase of Preferred
Securities should be aware that the assets of Premier Capital Trust may be
considered "plan assets" for ERISA purposes. Therefore, to avoid certain
prohibited transactions under ERISA and the Code that could thereby result,
each investing Plan, by purchasing the Preferred Securities, will be deemed to
have directed the Trust to invest in the Subordinated Debentures and to have
appointed the Property Trustee.
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UNDERWRITING
Pursuant to the Underwriting Agreement, the form of which is filed as an
exhibit to the Registration Statement of which this Prospectus forms a part,
and subject to the terms and conditions thereof, the Underwriters named below,
acting through J.C. Bradford & Co., Interstate/Johnson Lane Corporation and
Sterne Agee & Leach, Inc., as representatives of the several Underwriters (the
"Representatives"), have severally agreed to purchase from Premier Capital
Trust the number of Preferred Securities set forth below opposite their
respective names.
<TABLE>
<CAPTION>
NUMBER OF
NAME OF UNDERWRITER SHARES
- ------------------- ---------
<S> <C>
J.C. Bradford & Co....................................................
Interstate/Johnson Lane Corporation...................................
Sterne Agee & Leach, Inc..............................................
----
Total................................................................
====
</TABLE>
The several Underwriters have agreed in the Underwriting Agreement, subject
to the terms and conditions set forth therein, to purchase all the Preferred
Securities offered hereby if any of the Preferred Securities are purchased. In
the event of default by an Underwriter, the Underwriting Agreement provides
that, in certain circumstances, purchase commitments of the nondefaulting
Underwriters may be increased or the Underwriting Agreement may be terminated.
The Representatives have advised Premier Capital Trust that they propose
initially to offer the Preferred Securities to the public at the public
offering price set forth on the cover page of this Prospectus. After the
initial public offering, the public offering price may be changed.
In view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Subordinated Debentures of the
Company, the Underwriting Agreement provides that the Company will pay as
compensation to the Underwriters arranging the investment therein of such
proceeds, an amount in immediately available funds of $1.00 per Preferred
Security (or $1,000,000 in the aggregate or $1,150,000 if Underwriters' over-
allotment option is exercised) for the accounts of the several Underwriters.
The offering of the Preferred Securities is made for delivery when, as and
if accepted by the Underwriters and subject to prior sale and to withdrawal,
cancellation or modification of the offer without notice. The Underwriters
reserve the right to reject any order for the purchase of the shares.
Premier Capital Trust has granted the Underwriters an option to purchase up
to an additional 150,000 Preferred Securities at the initial public offering
price. Such option, which expires 30 days from the date of this Prospectus,
may be exercised solely to cover over-allotments. To the extent that the
Underwriters exercise such option, each of the Underwriters will have a firm
commitment to purchase approximately the same percentage thereof which the
number of shares of Preferred Securities to be purchased by it shown in the
table above bears to the total and Premier Capital Trust and will be obligated
pursuant to the option, to sell such shares to the Underwriters. The
Underwriters may exercise such options only to cover over-allotments made in
connection with the sale of shares of Preferred Securities offered hereby. If
purchased, the Underwriters will sell such additional shares on the same terms
as those on which the shares are being offered.
To the extent that the Underwriters exercise their option to purchase
additional Preferred Securities, Premier Capital Trust will issue and sell to
the Company additional Common Securities and the Company will issue and sell
Subordinated Debentures to Premier Capital Trust in an aggregate principal
amount equal to the total aggregate Liquidation Amount of the additional
Common Securities being purchased and the additional Preferred Securities
being purchased pursuant to the option.
During a period of 120 days from the date of this Prospectus, neither
Premier Capital Trust nor the Company will, subject to certain exceptions,
without the prior written consent of the Representatives, directly or
indirectly, sell, offer to sell, grant any option for sale of, or otherwise
dispose of, any Preferred Securities, any security
52
<PAGE>
convertible into or exchangeable into or exercisable for Preferred Securities
or Subordinated Debentures or any debt securities substantially similar to the
Subordinated Debentures or equity securities substantially similar to the
Preferred Securities (except for the Subordinated Debentures and the Preferred
Securities offered hereby).
Application has been made to have the Preferred Securities approved for
quotation on the American Stock Exchange, Inc. The offering price and
distribution rate have been determined by negotiations among representatives
of the Company and the Underwriters, and the offering price of the Preferred
Securities may not be indicative of the market price following the offering.
The Representatives will have no obligation to make a market in the Preferred
Securities, however, and may cease market-making activities, if commenced, at
any time.
Premier Capital Trust and the Company have agreed to indemnify the
Underwriters and controlling persons, if any, against certain liabilities,
including liabilities under the Securities Act, or will contribute to payments
that the Underwriters or any such controlling persons may be required to make
in respect thereof.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Preferred
Securities, the enforceability of the Trust Agreement and the formation of
Premier Capital Trust will be passed upon by Richards, Layton & Finger P.A.,
special Delaware counsel. Certain legal matters for the Company and Premier
Capital Trust, including the validity of the Guarantee and the Subordinated
Debentures will be passed upon for the Company and Premier Capital Trust by
Womble Carlyle Sandridge & Rice, PLLC, Atlanta, Georgia, counsel to the
Company and Premier Capital Trust. Certain legal matters will be passed upon
for the Underwriters by Alston & Bird, LLP, Washington, D.C. Womble Carlyle
Sandridge & Rice, PLLC and Alston & Bird, LLP, will rely on the opinion of
Richards, Layton & Finger P.A. with regard to matters pertaining to Delaware
law. Certain matters relating to United States federal income tax
considerations will be passed upon for the Company by Womble Carlyle Sandridge
& Rice, PLLC.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
for the years ended December 31, 1994, 1995 and 1996 incorporated herein by
reference to the Company's Annual Report on Form 10-K for the year ended
December 31, 1996 and the consolidated financial statements of the Company and
its subsidiaries for the years ended December 31, 1994, 1995 and 1996 restated
to give effect to the combination of Central and Southern with the Company,
accounted for as a pooling of interests, incorporated herein by reference to
the Company's Current Report on Form 8-K dated October 20, 1997, have been
audited by Mauldin & Jenkins, LLC, independent certified public accountants,
as stated in their reports, which reports are incorporated herein by
reference, and have been so incorporated in reliance upon the authority of
said firm as experts in accounting and auditing.
53
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRE-
SENTATIONS IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH OTHER INFORMATION AND REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, PREMIER CAP-
ITAL TRUST I OR THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY OR PREMIER CAPITAL
TRUST I SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS COR-
RECT AS OF ANY TIME SUBSEQUENT TO ITS DATE. THIS PROSPECTUS DOES NOT CONSTI-
TUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES IN
ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information....................................................... 1
Incorporation of Certain Documents by Reference............................. 2
Prospectus Summary.......................................................... 4
Risk Factors................................................................ 5
The Company................................................................. 18
Accounting Treatment........................................................ 20
Use of Proceeds............................................................. 20
Ratios of Earnings to Fixed Charges......................................... 20
Capitalization.............................................................. 21
Selected Consolidated Financial Data........................................ 22
Premier Capital Trust....................................................... 23
Description of the Preferred Securities..................................... 24
Description of the Subordinated Debentures.................................. 36
Description of the Guarantee................................................ 44
Relationship among the Preferred Securities,
The Subordinated Debentures and the Guarantee.............................. 47
Material Federal Income Tax Consequences.................................... 48
ERISA Considerations........................................................ 51
Underwriting................................................................ 52
Validity of Securities...................................................... 53
Experts..................................................................... 53
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
1,000,000 PREFERRED SECURITIES
PREMIER CAPITAL TRUST I
% CUMULATIVE TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25.00 PER PREFERRED SECURITY) FULLY AND UNCONDITIONALLY
GUARANTEED, AS
DESCRIBED HEREIN, BY
[LOGO OF PREMIER BANCSHARES APPEARS HERE]
PREMIER BANCSHARES, INC.
---------------
PROSPECTUS
---------------
J.C. Bradford & Co.
Interstate/Johnson Lane
Corporation
Sterne Agee & Leach,Inc.
, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses in connection with this offering are as set forth in
the following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................. $ 8,712
National Association of Securities Dealers, Inc. Filing Fee......... $ 2,250
-------
American Stock Exchange Listing Fee................................. $10,000
Blue Sky Qualification Fees and Expenses............................ $ 500
Accounting Fees and Expenses........................................ $ *
-------
Legal Fees and Expenses............................................. $ *
-------
Trustees' Fees and Expenses......................................... $ *
-------
Printing and Engraving Expenses..................................... $50,000
-------
Transfer and Registrar Fees......................................... $ *
-------
Miscellaneous....................................................... $ *
-------
Total.............................................................. $ *
=======
</TABLE>
- --------
* To be provided by amendment. All amounts other than the Securities and
Exchange Commission registration fee, the American Stock Exchange, Inc.
listing fee and the National Association of Securities Dealers, Inc. filing
fee are estimated.
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS
The provisions of the Georgia Business Corporation Code (the "Georgia Code")
and the Registrant's Bylaws set forth the extent to which the Registrant's
directors and officers may be indemnified against liabilities they may incur
while serving in such capacities. Under the Registrant's Bylaws, the
Registrant is required to indemnify its officers and directors against
reasonable expenses (including attorneys' fees) incurred by them in the
defense of any action, suit or proceeding to which they were made a party, or
in defense of any claim, issue or matter therein, by reason of the fact that
they are or were officers, directors, employees or agents of the Registrant,
to the extent that they have been successful, on the merits or otherwise, in
such defense. The Registrant's Bylaws also permit indemnification of its
directors and officers against any liability incurred in connection with any
threatened, pending or completed action, suit or proceeding by reason of the
fact that they are or were directors or officers of the Registrant or who,
while directors or officers of the Registrant, are or were serving at the
Registrant's request as directors, officers, partners, trustees, employees or
agents of another entity, if they acted in a manner they believed in good
faith to be in, or not opposed to, the best interests of the Registrant, or,
with respect to any criminal proceeding, had no reasonable cause to believe
their conduct was unlawful, if a determination has been made that they have
met these standards of conduct. Such indemnification in connection with a
proceeding by or in the right of the Registrant, however, is limited to
reasonable expenses, including attorneys' fees, incurred in connection with
the proceeding. The Registrant must also provide advancement of expenses
incurred by any director or officer in defending any such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such advances unless it is ultimately determined that he or
she is not entitled to indemnification by the Registrant.
The Registrant may not indemnify a director or officer in connection with a
proceeding by or in the right of the Registrant in which the director or
officer was adjudged liable to the Registrant for appropriation of a business
opportunity or payment of unlawful dividends, in connection with a proceeding
in which he or she was adjudged liable on the basis that he or she improperly
received a personal benefit or for intentional misconduct or a knowing
violation of law.
The indemnification provisions of the Georgia Code are essentially identical
to those set forth above, except that the Georgia Code permits, but does not
require, a corporation to advance expenses under the circumstances for such
payments described above.
II-1
<PAGE>
The Registrant maintains an insurance policy insuring the Registrant and its
directors and officers against certain liabilities, including liabilities
under the Securities Act.
The Registrant's Articles of Incorporation provide that no director of the
Company shall be personally liable to the Registrant or its shareholders for
monetary damages for a breach of the duty of care or of any other duty as a
director, except in the case of: (i) wrongful appropriation of any business
opportunity of the Registrant; (ii) acts or omissions not in good faith or
involving intentional misconduct or a knowing violation or law;
(iii) liability for unlawful distributions; or (iv) any transaction from which
the director derived an improper personal benefit.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBITS
--------
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Articles of Incorporation of the Company (Incorporated by reference as
Exhibit 3.1 to the Company's Form 10-K for the fiscal year ended
December 31, 1996).
4.2 Bylaws of the Company (Incorporated by reference as Exhibit 3.2 to the
Company's Form 10-QSB for the quarter ended September 30, 1996).
4.3* Form of Indenture.
4.4* Form of Subordinated Debenture (included as an exhibit to Exhibit 4.3).
Certificate of Trust of Premier Capital Trust I dated as of October 21,
4.5 1997.
4.6 Trust Agreement of Premier Capital Trust I dated as of October 21, 1997.
4.7* Form of Amended and Restated Trust Agreement of Premier Capital Trust.
Form of Preferred Security Certificate of Premier Capital Trust
4.8* (included as an exhibit to Exhibit 4.7).
4.9* Form of Subordinated Debenture.
Form of Preferred Securities Guarantee Agreement for Premier Capital
4.10* Trust.
Form of Agreement as to Expenses and Liabilities (included as an exhibit
4.11* to Exhibit 4.7).
5.1* Opinion of Womble Carlyle Sandridge & Rice, PLLC as to the validity of
the issuance of the Subordinated Debentures.
5.2* Opinion of Richards Layton & Finger P.A., special Delaware counsel, as
to the legality of the Preferred Securities to be issued by Premier
Capital Trust.
Opinion of Womble Carlyle Sandridge & Rice, PLLC as to material federal
8.1* income tax matters.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Mauldin & Jenkins, LLC, Independent Auditors.
23.2* Consent of Womble Carlyle Sandridge & Rice, PLLC (to be included in
their opinions filed herewith as Exhibits 5.1 and 8.1).
23.3* Consent of Richards, Layton & Finger P.A. (to be included in their
opinion filed herewith as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under Amended and Restated Trust Agreement.
25.3 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Preferred Securities Guarantee Agreement.
</TABLE>
- --------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the provisions described under "Item 15--Indemnification of
Directors and Officers" above, or otherwise, the Company has been advised that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed
II-2
<PAGE>
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
The Company hereby undertakes that: (i) for purposes of determining any
liability under the Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Company pursuant to Rule
424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; (ii) for the
purpose of determining any liability under the Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and (iii) for the purpose of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Atlanta, Georgia, on October 21, 1997.
PREMIER BANCSHARES, INC.
By: /s/ Darrell D. Pittard
----------------------------------
Darrell D. Pittard, Chairman
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Darrell D. Pittard and Robert C. Oliver and
each of them (with full power to each of them to act alone), his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and any subsequent registration
statements pursuant to Rule 462 under the Securities Act, and to file the
same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the Requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ N. Michael Anderson Director October 21, 1997
- --------------------------
N. Michael Anderson
/s/ George S. Carpenter Director October 21, 1997
- --------------------------
George S. Carpenter
/s/ James L. Coxwell Director October 21, 1997
- --------------------------
James L. Coxwell
/s/ Donald N. Ellis Director October 21, 1997
- --------------------------
Donald N. Ellis
/s/ William M. Evans, Jr. Director October 21, 1997
- --------------------------
William M. Evans, Jr.
/s/ John H. Ferguson Director October 21, 1997
- --------------------------
John H. Ferguson
/s/ James E. Freeman Director October 21, 1997
- --------------------------
James E. Freeman
II-4
<PAGE>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Albert F. Gandy Director October 21, 1997
- --------------------------
Albert F. Gandy
/s/ Robin R. Howell Director October 21, 1997
- --------------------------
Robin R. Howell
/s/ Billy H. Martin Director October 21, 1997
- --------------------------
Billy H. Martin
/s/ Steve McQuaig Director October 21, 1997
- --------------------------
Steve McQuaig
/s/ Robert C. Oliver Director, President October 21, 1997
- -------------------------- and Chief Operating
Robert C. Oliver Officer
/s/ Thomas E. Owen, Jr. Director October 21, 1997
- --------------------------
Thomas E. Owen, Jr.
/s/ Darrell D. Pittard Chairman and Chief October 21, 1997
- -------------------------- Executive Officer
Darrell D. Pittard (principal executive
officer)
/s/ Michael E. Ricketson Chief Financial October 21, 1997
- -------------------------- Officer and
Michael E. Ricketson Executive Vice
President (principal
financial and
accounting officer)
SIGNATURES
Pursuant to the requirements of the Securities Act, Premier Capital Trust
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Atlanta, Georgia on October 21, 1997.
PREMIER CAPITAL TRUST I
By: /s/ Darrell D. Pittard
---------------------------------
Darrell D. Pittard, Trustee
By: /s/ Robert C. Oliver
---------------------------------
Robert C. Oliver, Trustee
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
4.1 Articles of Incorporation of the Company (Incorporated by reference as
Exhibit 3.1 to the Company's Form 10-K for the fiscal year ended
December 31, 1996).
4.2 Bylaws of the Company (Incorporated by reference as Exhibit 3.2 to the
Company's Form 10-QSB for the nine months ended September 30, 1996).
4.3* Form of Indenture.
4.4* Form of Subordinated Debenture (included as an exhibit to Exhibit 4.3).
4.5 Certificate of Trust of Premier Capital Trust I dated as of October 21,
1997.
4.6 Trust Agreement of Premier Capital Trust I dated as of October 21, 1997.
4.7* Form of Amended and Restated Trust Agreement of Premier Capital Trust.
4.8* Form of Preferred Security Certificate of Premier Capital Trust
(included as anexhibit to Exhibit 4.7).
4.9* Form of Subordinated Debenture.
4.10* Form of Preferred Securities Guarantee Agreement for Premier Capital
Trust.
4.11* Form of Agreement as to Expenses and Liabilities (included as an exhibit
to Exhibit 4.7).
5.1* Opinion of Womble Carlyle Sandridge & Rice, PLLC as to the validity of
the issuance of the Subordinated Debentures.
5.2* Opinion of Richards Layton & Finger P.A., special Delaware counsel, as
to the legality of the Preferred Securities to be issued by Premier
Capital Trust.
8.1* Opinion of Womble Carlyle Sandridge & Rice, PLLC as to material federal
income tax matters.
12.1 Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Mauldin & Jenkins, LLC, Independent Auditors.
23.2* Consent of Womble Carlyle Sandridge & Rice, PLLC (to be included in
their opinions filed herewith as Exhibits 5.1 and 8.1).
23.3* Consent of Richards, Layton & Finger P.A. (to be included in their
opinion filed herewith as Exhibit 5.2).
24.1 Power of Attorney (included on the signature page).
25.1 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Indenture.
25.2 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under Amended and Restated Trust Agreement.
25.3 Form T-1 Statement of Eligibility of State Street Bank & Trust Company
to act as trustee under the Preferred Securities Guarantee Agreement.
</TABLE>
- --------
* To be filed by amendment.
II-6
<PAGE>
EXHIBIT 1.1
1,000,000
Preferred Securities
Premier Capital Trust
UNDERWRITING AGREEMENT
----------------------
, 1997
---------------
J.C. BRADFORD & CO.
INTERSTATE/JOHNSON LANE CORPORATION
STERNE AGEE & LEACH, INC.
as Representatives of the Several Underwriters
c/o J.C. Bradford & Co.
330 Commerce Street
Nashville, Tennessee 37201
Ladies and Gentlemen:
Premier Capital Trust (the "Trust"), a statutory business trust created
under the Business Trust Act (the "Delaware Act") of the State of Delaware
(Chapter 38, Title 12, of the Delaware Code, 12 Del. (Sections 3801, et seq.))
and Premier Bancshares, Inc., a Georgia corporation (the "Company" and together
with the Trust, the "Offerors"), confirm their agreement (the "Agreement") with
J.C. Bradford & Co. ("J.C. Bradford") and each of the other Underwriters named
in Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof) for whom J.C. Bradford, Interstate/Johnson Lane Corporation, and Sterne
Agee & Leach, Inc. are acting as representatives (in such capacity, J.C.
Bradford, Interstate/Johnson Lane Corporation, and Sterne Agee & Leach, Inc.
will be referred to as the "Representatives"), with respect to the issue and
sale by the Trust and the purchase by the Underwriters, acting severally and not
jointly, of the respective number set forth in Schedule A of 1,000,000 ____%
Cumulative Trust Preferred Securities (liquidation amount of $25.00 per
security) of the Trust. Said aggregate of 1,000,000 Preferred Securities are
herein referred to as the "Firm Preferred Securities." In addition, the Company
proposes to grant to the Underwriters an option to purchase up to 150,000
additional ___% Cumulative Trust Preferred Securities (the "Optional Preferred
Securities"), as provided in Section 2 hereof. The Firm Preferred Securities
and, to the extent such option is exercised, the Optional Preferred Securities
are hereinafter collectively referred to as the "Preferred Securities." The
Preferred Securities will be guaranteed by the Company, to the extent described
in the Prospectus, with respect to distributions and payments upon liquidation,
redemption and otherwise pursuant to the
<PAGE>
Preferred Securities Guarantee Agreement (the "Preferred Securities Guarantee"),
to be dated as of ___________, 1997, between the Company and State Street Bank &
Trust Company, as Trustee (the "Guarantee Trustee"). The Preferred Securities
issued in book-entry form will be issued to Cede & Co. as nominee of The
Depository Trust Company ("DTC") pursuant to a letter agreement, to be dated as
of the First Closing Date (as defined herein) or the Second Closing Date (as
defined herein), as the case may be, (the "DTC Agreement"), among the Trust, the
Guarantee Trustee and DTC.
The entire proceeds from the sale of the Preferred Securities in the
Offering will be combined with the entire proceeds from the sale by the Trust to
the Company of its common securities (the "Common Securities"), as guaranteed by
the Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation, redemption and otherwise pursuant
to the Common Securities Guarantee Agreement (the "Common Guarantee" and,
together with the Preferred Securities Guarantee, the "Guarantees"), to be dated
as of __________, 1997, made by the Company, and will be used by the Trust to
purchase $_____________ aggregate principal amount (plus up to an additional
$__________ aggregate principal amount if the Underwriters' over-allotment
option is exercised) of ____% Subordinated Debentures due ____________, 2027
(the "Subordinated Debentures") issued by the Company. The Preferred Securities
and the Common Securities will be issued pursuant to the Trust Agreement, to be
dated as of __________, 1997 (the "Trust Agreement"), among the Company, as
sponsor, and ____________ as administrators (the "Administrative Trustees"),
State Street Bank & Trust Company, as property trustee (the "Property Trustee"),
and Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee," and,
together with the Property Trustee and the Administrative Trustees, the
"Trustees"), and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust. The Subordinated Debentures will be
issued pursuant to an indenture, to be dated as of _____________, 1997 (the
"Indenture"), between the Company and State Street Bank & Trust Company, as
trustee (the "Debenture Trustee").
The Preferred Securities, the Preferred Securities Guarantee and the
Subordinated Debentures are hereinafter collectively referred to as the
"Securities."
The Indenture, the Trust Agreement, the Guarantees, the Expense Agreement,
the DTC Agreement, and this Agreement are hereinafter referred to collectively
as the "Operative Documents."
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-______)
containing a preliminary prospectus relating to the Offering under the
Securities Act of 1933, as amended (the "1933 Act"), and have filed such
amendments thereto and such amended preliminary prospectuses as may have been
required by the Commission on or prior to the date hereof and will file such
additional amendments to the registration statement and such amended
prospectuses relating to the Offering (pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the rules and regulations of the
Commission
-2-
<PAGE>
thereunder (the "1934 Act Regulations"), the 1933 Act, the rules and regulations
of the Commission under the 1933 Act (the "1933 Act Regulations") or otherwise)
as may hereafter be required by the Commission or pursuant to the terms of this
Agreement. Such registration statement, as amended, at the time such
registration statement becomes effective and, in the event any post-effective
amendment thereto becomes effective prior to the First Closing Date (as
hereinafter defined), at the time such post-effective amendment becomes
effective, and the prospectus relating to the Offering constituting a part
thereof (including, in the case of such registration statement, as amended, and
in the case of such prospectus, all financial statements, schedules and exhibits
thereto and all documents incorporated or deemed incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, all exhibits to such
documents and the information, if any, deemed to be a part thereof pursuant to
Rule 430A(b) of the 1933 Act Regulations), as from time to time amended or
supplemented pursuant to the 1934 Act, the 1934 Act Regulations, the 1933 Act,
the 1933 Act Regulations or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if any
revised prospectus relating to the Offering shall be provided to the
Underwriters by the Offerors for use in the Offering which differs from the
prospectus relating to the Offering on file at the Commission at the time of
such use (whether or not such revised prospectus is required to be filed by the
Offerors pursuant to Rule 424(b) of the 1933 Act Regulations), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Underwriters for such use. The term "Preliminary
Prospectus" means the preliminary prospectus dated _______________, 1997
distributed by the Underwriters prior to the date hereof.
The Offerors understand that the Underwriters propose to make the Offering
of the Securities as soon as the Representatives deem advisable after the
Registration Statement becomes effective and after the Trust Agreement, the
Indenture and the Preferred Securities Guarantee have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Prospectus
(or other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information which are
incorporated by reference in the Prospectus; and all references in this
Agreement to amendments or supplements to the Prospectus shall be deemed to mean
and include the filing of any document under the 1934 Act which is incorporated
by reference in the Prospectus.
SECTION 1. Representations and Warranties.
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(a) The Offerors jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of each of the First Closing Date and
the Second Closing Date, and agree with each Underwriter as follows:
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(i) The Company meets the requirements for use of Form S-3 under the
1933 Act.
(ii) No document with respect to the Registration Statement has been
filed with the Commission; and no stop order suspending the effectiveness
of the Registration Statement, or any other amendment thereto and no cease
and desist order or temporary order under Section 8A of the 1933 Act has
been issued, and no proceeding for such purpose has been instituted or is
pending or threatened by the Commission. No order preventing or suspending
the use of any Prospectus or any Preliminary Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the 1933
Act and the 1933 Act Regulations and did 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with the
"Underwriter Information" (as defined in Section 6(a) hereof) relating to
the Underwriters furnished in writing to the Company by or on behalf of the
Underwriters expressly for use therein.
(iii) At the time the Registration Statement and any amendment
thereto becomes effective, the Registration Statement and any amendment
thereto, and the Prospectus and any further amendment or supplement
thereto, will conform in all material respects to the requirements of the
1933 Act and the 1933 Act Regulations and will not, as of effective date of
each of the Registration Statement, and any amendment thereto, and as of
the applicable filing date of the Prospectus and any amendment or
supplement thereto, 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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with the Underwriter Information.
(iv) Each document incorporated or deemed incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at
the time it was or hereafter is filed with the Commission, conformed or
will conform, as the case may be, in all material respects with the
requirements of the 1934 Act and the 1934 Act Regulations, and, when read
together and with the other information in the Prospectus at each time the
Registration Statement and any amendment thereto is declared effective,
during the time the Prospectus is required to be delivered by the 1933 Act,
and at the First Closing Date and at the Second Closing Date, as the case
may be, do not and will not contain an untrue statement of a material fact
or omit to state a material fact
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required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading.
(v) Mauldin & Jenkins LLC, which has audited certain financial
statements of the Company, are, and were during the periods covered in its
report incorporated by reference into the Registration Statement and the
Prospectus, independent public accountants with respect to the Company and
its subsidiaries, as required by the 1933 Act, the 1933 Regulations, the
1934 Regulations and Commission Regulation S-X.
(vi) The consolidated financial statements, together with the related
schedules and notes, included in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the
Company and its subsidiaries at the dates indicated and the consolidated
results of operations and cash flows of the Company and its subsidiaries
for the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved, except as disclosed
in the notes to such financial statements. The supporting schedules, if
any, included in the Registration Statement and the Prospectus present
fairly, in all material respects, the information required to be stated
therein. The summary financial data included in the Registration Statement
and the Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included in the Registration
Statement and the Prospectus.
(vii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby and, except for normal recurring dividends
on the capital stock of the Company, there has not been (A) any material
adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Trust, or the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (B) any transaction entered into by the Trust,
the Company or any subsidiary, other than in the ordinary course of
business, that is material to the Trust, or the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(viii) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia and has the
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus; and the Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to
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so qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise.
(ix) Premier Bank is a duly organized and validly existing state-
chartered bank under the laws of the State of Georgia and continues to hold
a valid certificate to do business as such and has full power and authority
to conduct its business as such; Central and Southern Bank is a duly
organized and validly existing state-chartered bank under the laws of the
State of Georgia and continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such;
Central and Southern Bank of North Georgia, F.S.B. is a duly organized and
validly existing federally-chartered stock savings bank under the laws of
the United States and continues to hold a valid certificate to do business
as such and has full power and authority to conduct its business as such;
Premier Lending is a duly and validly organized and existing corporation
under the laws of the State of Georgia and continues to hold a valid
certificate to do business as such and has full power and authority to
conduct its business as such (Premier Bank, Central and Southern Bank,
Central and Southern Bank of North Georgia, F.S.B., and Premier Lending are
referred to collectively as the "Significant Subsidiaries"). Each
Significant Subsidiary has the authority under its jurisdiction of
organization to own, lease and operate its properties and to conduct its
business and is duly authorized to transact business and is in good
standing in each jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or to be in
good standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(x) The Company does not have any subsidiaries which are material to
its business, except to the extent that the Significant Subsidiaries may be
deemed to be so material.
(xi) (a) The Company had at the date indicated a duly authorized and
outstanding capitalization as set forth in the Registration Statement and
the Prospectus, (b) all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable, and (c) none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive rights of any
stockholder of the Company.
(xii) The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and the Prospectus and to enter into and perform its
obligations under the Operative Documents, as applicable, and the Preferred
Securities; the Trust is
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<PAGE>
not a party to or otherwise bound by any material agreement other than
those described in the Registration Statement and the Prospectus; and the
Trust is and will, under current law, be classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation.
(xiii) The Common Securities have been duly authorized by the Trust
Agreement and, when issued and delivered by the Trust to the Company
against payment therefor as described in the Registration Statement and the
Prospectus, will be validly issued and will represent undivided beneficial
interests in the assets of the Trust; the issuance of the Common Securities
is not subject to preemptive or other similar rights; and at the First
Closing Date and at the Second Closing Date, as the case may be, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(xiv) As of the First Closing Date and at the Second Closing Date, as
the case may be, the Preferred Securities will have been duly authorized by
the Trust Agreement and, when issued and delivered against payment therefor
in accordance with the Trust Agreement, as provided herein, will be validly
issued and fully paid and non-assessable undivided beneficial interests in
the assets of the Trust and will conform in all material respects to the
description thereof contained in the Prospectus and the issuance of the
Preferred Securities will not be subject to preemptive or other similar
rights.
(xv) This Agreement has been duly authorized, executed and delivered
by the Offerors.
(xvi) The Trust Agreement has been duly authorized by the Company and,
at the First Closing Date and at the Second Closing Date, will have been
duly executed and delivered by the Company and the Trustees, and assuming
due authorization, execution and delivery of the Trust Agreement by the
Trustees, the Trust Agreement will, at the First Closing Date and at the
Second Closing Date, be a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the receivership,
conservatorship and supervisory powers of bank regulatory agencies
generally as well as to bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting creditors' rights generally or by general
principles of equity (regardless of whether enforcement is considered in a
proceeding at law or in equity) and the availability of equitable remedies
(collectively, the "Enforceability Exceptions").
(xvii) Each of the Guarantees and the Preferred Securities Guarantee
has been duly authorized by the Company and, at the First Closing Date and
at the Second Closing Date, each of the Guarantees will have been duly
executed and delivered by the Company, and will constitute a valid and
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<PAGE>
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions.
(xviii) The Indenture has been duly authorized by the Company and, at
the First Closing Date and at the Second Closing Date, will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforcement thereof
may be limited by the Enforceability Exceptions; and at the First Closing
Date, the Indenture will have been duly qualified under the 1939 Act.
(xix) The Subordinated Debentures have been duly authorized by the
Company and, at the First Closing Date and at the Second Closing Date, will
have been duly executed by the Company and, when authenticated in the
manner provided for in the Indenture and delivered against payment therefor
as described in the Registration Statement and the Prospectus, will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by the Enforceability Exceptions; and the
Subordinated Debentures will be in the form contemplated by, and entitled
to the benefits of, the Indenture and will conform in all material respects
to the description thereof in the Prospectus.
(xx) Each of the Administrative Trustees of the Trust is an officer of
the Company has been duly authorized by the Company to execute and deliver
the Trust Agreement.
(xxi) The Trust is not, and following consummation of the transactions
contemplated hereby will not be, an "investment company" or a company
"controlled" by an "investment company" which is required to be registered
under the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) The Operative Documents described in the Registration Statement
and the Prospectus conform in all material respects to the summary
descriptions thereof contained in the Registration Statement and the
Prospectus.
(xxiii) None of the Trust, the Company nor any of the Significant
Subsidiaries is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it may be bound or to which
any of its properties may be subject, except for such defaults that would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise; the execution and
delivery of the Operative Documents by the Trust or the Company, as the
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<PAGE>
case may be, the issuance and delivery of the Securities, the consummation
by the Offerors of the transactions contemplated in the Operative
Documents, and compliance by the Offerors with the terms of the Operative
Documents to which they are a party have been duly authorized by all
necessary corporate action on the part of the Company, and do not and will
not result in any violation of the charter or by-laws of the Company or any
of the Significant Subsidiaries or the Trust Agreement or the certificate
of trust of the Trust filed with the State of Delaware on ___________, 1997
(the "Trust Certificate"), and do not and will not conflict with, or result
in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Trust, the Company or any of
the Significant Subsidiaries under (A) any indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the Trust,
the Company or any of the Significant Subsidiaries is a party or by which
it may be bound or to which any of its properties may be subject, except
for such conflicts, breaches or defaults or liens, charges or encumbrances
that would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise or
(B) any existing applicable law, rule, regulation, judgment, order or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Trust, the Company or any of the
Significant Subsidiaries or any of its properties, except for such defaults
that would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise.
(xxiv) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, other than those that have been made or obtained, is
necessary or required for the performance by the Company or the Trust of
their obligations hereunder, in connection with the issuance and sale of
the Preferred Securities or the consummation of the transactions
contemplated by the Operative Documents.
(xxv) Except as disclosed in the Registration Statement and the
Prospectus, there is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of the Company or the Trust, threatened
against or affecting the Trust, or the Company or any of the Significant
Subsidiaries that is required to be disclosed in the Registration Statement
and the Prospectus or that, in the final outcome, could, in the judgment of
the Company, result in any material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Trust, or the Company and its subsidiaries considered as one
enterprise, or that could materially and adversely affect the properties or
assets of the Trust, or the Company and its subsidiaries considered as one
enterprise, or that could adversely affect the consummation of the
transactions contemplated in
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<PAGE>
the Operative Documents; the aggregate liability or loss, if any, resulting
from the final outcome of all pending legal or governmental proceedings to
which the Trust, the Company or any of the Significant Subsidiaries is a
party or which affect any of its properties that are not described in the
Registration Statement and the Prospectus, including ordinary routine
litigation incidental to its business, would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Trust, or the Company and its
subsidiaries considered as one enterprise.
(xxvi) There are no contracts or documents of a character required
to be described in the Registration Statement and the Prospectus that are
not described as required.
(xxvii) The Offerors and the Significant Subsidiaries each owns or
possesses, or can acquire on reasonable terms, adequate patents, patent
licenses, trademarks, service marks and trade names necessary to carry on
their businesses as presently conducted, except where the failure to own,
procure or obtain any of the foregoing would not have a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, and none of the Offerors nor the Significant
Subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, patent licenses,
trademarks, service marks or trade names that, in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Trust, or the
Company and its subsidiaries considered as one enterprise.
(xxviii) The Offerors and the Significant Subsidiaries each owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Offerors nor any of the Significant Subsidiaries has received any
notice of proceedings relating to revocation or modification of any such
licenses, permits, certificates, consents, orders, approvals or
authorizations that, in the aggregate, if the subject of an unfavorable
decision, ruling or finding, could materially adversely affect the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiaries considered as
one enterprise.
(xxix) The Offerors and each of the Significant Subsidiaries each
has good and marketable title to all properties and assets described in the
Registration Statement and the Prospectus as owned by it, free and clear of
all liens, charges, encumbrances or restrictions, except such as (A) are
described in the Registration Statement and the Prospectus or (B) are
neither material in amount nor materially significant in relation to the
business of the Trust, or the Company and its
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subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and the Company and its
subsidiaries considered as one enterprise, and under which the Offerors or
any of the Significant Subsidiaries holds properties described in the
Registration Statement and the Prospectus, are in full force and effect,
and neither the Offerors nor any of the Significant Subsidiaries has any
notice of any material claim of any sort that has been asserted by anyone
adverse to the rights of the Offerors or such Significant Subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning
the rights of such corporation to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Preferred Securities or the Common Stock.
(xxxi) None of the Trust, the Company, or any of their affiliates, as
such term is defined in Rule 501(b) under the 1933 Act ("Affiliates"), or
any person acting on its or any of their behalf (other than the
Underwriters, as to whom the Offerors make no representation) has engaged
or will engage, in connection with the offering of the Preferred
Securities, in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the 1933 Act.
(xxxii) There are no persons with registration or other similar
rights to have any securities registered pursuant to the Registration
Statement or otherwise registered by the Company under the 1933 Act.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of the Significant Subsidiaries and
delivered to the Representatives or to counsel for the Underwriters shall be
deemed only a representation and warranty by the Trust or the Company, as the
case may be, to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Trust agrees to sell
to each Underwriter, severally and not jointly, and each Underwriter, severally
and not jointly, agrees to purchase from the Trust, at a price of $25.00 per
Security, the number of Firm Preferred Securities set forth in Schedule A
opposite the name of such Underwriter, plus any additional Preferred Securities
which such Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) Deliveries of certificates for the Firm Preferred Securities shall be
made at the office of the Underwriters in Nashville, Tennessee, and payment of
the purchase price
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for the Firm Preferred Securities shall be made by J.C. Bradford, on behalf of
the several Underwriters, to the Trust by wire transfer of immediately available
funds contemporaneous with closing at such place as shall be agreed upon by J.C.
Bradford and the Offerors, at 10:00 A.M. on ______________, 1997 (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by J.C.
Bradford and the Offerors (such time and date of payment and delivery being
herein called the "First Closing Date").
(c) Payment for the Firm Preferred Securities purchased by the Underwriters
shall be made to the Trust by wire transfer of immediately available funds,
against delivery for the respective accounts of the Underwriters of certificates
for the Firm Preferred Securities. Certificates for the Firm Preferred
Securities shall be in such denominations and registered in such names as the
Underwriters may request in writing at least one business day before the First
Closing Date. It is understood that each Underwriter has authorized J.C.
Bradford, for its account, to accept delivery of, receipt for, and make payment
of the purchase price for, the Firm Preferred Securities which it has agreed to
purchase. J.C. Bradford, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Firm Preferred Securities, if any to be purchased by any
Underwriter whose funds have not been received by the First Closing Date, but
such payment shall not relieve such Underwriter from its obligations hereunder.
The certificates representing the Firm Preferred Securities shall be made
available for examination and packaging by the Underwriters in Nashville,
Tennessee not later than 10:00 A.M. on the last business day prior to the First
Closing Date.
(d) In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of 150,000 Optional
Preferred Securities at the purchase price per security to be paid for the Firm
Preferred Securities, for use solely in covering any over-allotments made by
the Representatives for the account of the Underwriters in the sale and
distribution of the Firm Preferred Securities. The option granted hereunder may
be exercised at any time (but not more than once) within 30 days after the first
date that any of the Preferred Securities are released by the Representatives
for sale to the public, upon notice by the Representatives to the Company
setting forth the aggregate number of Optional Preferred Securities as to which
the Underwriters are exercising the option, the names and denominations in which
the certificates for such securities are to be registered and the time and place
at which such certificates will be delivered. Such time of delivery (which may
not be earlier than the First Closing Date), being herein referred to as the
"Second Closing Date," shall be determined by the Representatives, but if at any
time other than the First Closing Date shall not be earlier than three nor later
than five full business days after delivery of such notice of exercise. The
number of Optional Preferred Securities to be purchased by each Underwriter
shall be determined by multiplying the number of Optional Preferred Securities
to be sold by the Company pursuant to such notice of
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exercise by a fraction, the numerator of which is the number of Firm Preferred
Securities to be purchased by such Underwriter as set forth opposite its name in
Schedule A and the denominator of which is 1,000,000 (subject to such
adjustments to eliminate any fractional share purchases as the Representatives
in their discretion may make). The manner of payment for and delivery of the
Preferred Securities shall be the same as for the Firm Preferred Securities
purchased from the Company as specified in the three preceding paragraphs. At
any time before lapse of the option, you may cancel such option by giving
written notice of such cancellation to the Company. If the option is cancelled
or expires unexercised in whole or in part, the Company will deregister under
the 1933 Act the number of Option Preferred Securities as to which the option
has not been exercised.
(e) As compensation to the Underwriters for their commitments hereunder and
in view of the fact that the proceeds of the sale of the Preferred Securities
will be used to purchase Subordinated Debentures of the Company, the Company
hereby agrees to pay at the First Closing Date or the Second Closing Date, as
the case may be, to J.C. Bradford in immediately available funds, for the
accounts of the several Underwriters, $ per Preferred Security to be
-----
delivered by the Trust hereunder at the First Closing Date or the Second Closing
Date, as the case may be, or if agreed by the Representatives and the Company,
by deduction from the amount payable by the Underwriters to the Trust in respect
of the Preferred Securities being purchased on such date.
(f) The Underwriter will comply with all material applicable laws and rules
in connection with the sale of the Securities and the Underwriters are not
acting as an agent for the Company.
SECTION 3. Covenants of the Offerors. The Offerors covenant with each
-------------------------
Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any post-effective amendments to the Registration Statement to be
declared effective by the Commission (as and when specified in the reasonable
request of the Representatives) and will prepare the Prospectus in a form
reasonably approved by the Representatives and file such Prospectus pursuant to
Rule 424(b) under the 1933 Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement or, if applicable, such earlier time as may be required by Rule
430A(a)(3) under the 1933 Act. The Company will make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to any
First Closing Date which shall be reasonably disapproved by the Representatives
after reasonable notice thereof. The Company will notify the Representatives
immediately and confirm the notice in writing (i) when the Registration
Statement or any post-effective amendment thereto (and any other amendment
thereto) has been declared effective by the Commission, (ii) of the transmittal
to the Commission for filing of any amendment or supplement to the Prospectus or
any document that will be incorporated by reference in the Subscription
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Prospectus or the Prospectus, (iii) of the receipt by the Company of any
comments from the Georgia Department of Banking and Finance ("Georgia
Department"), the Commission or any state securities commission with respect to
the transactions contemplated by this Agreement, (iv) of any request by the
Georgia Department, the Commission or any state securities commission for any
amendment or supplement to the Registration Statement or the Prospectus, or for
additional information, (v) of the issuance by the Office of Thrift Supervision
(the "OTS"), the Federal Reserve Board, the Georgia Department, the Commissioner
or any state securities commission or court of competent jurisdiction of any
order suspending any of the Offering or the use of either the Preliminary
Prospectus or the Prospectus or the threat of any such action by any such
entity, (vi) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or any amendment thereto or of the
receipt by the Company of any notification with respect to the suspension of the
registration, qualification or exemption of the Preferred Securities for
offering or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose. In the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or suspending any such registration, qualification or exemption, the
Company promptly will use its best efforts to obtain its withdrawal.
(b) The Company will give the Representatives notice of its intention to
file or prepare any amendment or supplement to the Registration Statement or any
amendment or supplement to the Prospectus (whether, in the case of the
Registration Statement and the Prospectus, by the filing of documents pursuant
to the 1934 Act, the 1933 Act or otherwise and, in the case of the Prospectus,
including any revised prospectus which the Company proposes for use by the
Underwriters in connection with the Offering from the Prospectus then being so
used by the Underwriters).
(c) The Company has furnished or will deliver to the Representatives and
counsel for the Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including exhibits
filed therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives a conformed copy of the Registration Statement as originally
filed and of each amendment thereto (without exhibits) for each of the
Underwriters.
(d) The Company will deliver to each Underwriter, without charge, from time
to time until the effective date of the Registration Statement, as many copies
of each Preliminary Prospectus as such Underwriter may reasonably request, and
the Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each Underwriter, without charge,
from time to time during the period when the Prospectus is required to be
delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act or the
respective applicable rules and regulations of the Commission thereunder.
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<PAGE>
(e) If any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or the Prospectus
in order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) If, at the time that the Registration Statement or a post-effective
amendment thereto becomes effective, any information shall have been omitted
therefrom in reliance upon Rule 430A of the 1933 Act Regulations, then
immediately following effectiveness, the Company will prepare, and file or
transmit for filing with the Commission in accordance with such Rule 430A and
Rule 424(b) of the 1933 Act Regulations, copies of an amended Prospectus, or, if
required by such Rule 430A, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted and will use its best efforts to cause any such post-effective amendment
to be declared effective as promptly as practicable.
(g) The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Preferred Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Preferred Securities have been so
qualified the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement.
(h) The Company will make generally available to its security holders as
soon as practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the provisions of
Rule 158 of the 1933 Act Regulations) covering a 12-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the Registration Statement.
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(i) The Company will file with the Commission such reports on From SR as
may be required pursuant to Rule 463 of the 1933 Act Regulations.
(j) The Offerors will cooperate with the Underwriters and use their best
efforts to permit the Preferred Securities to be eligible for clearance and
settlement through the facilities of DTC.
(k) The Trust will use the net proceeds received by it from the sale of the
Preferred Securities, and the Company will use the proceeds received by it from
the sale of the Subordinated Debentures, in the manners specified in the
Prospectus under "Use of Proceeds."
(l) Prior to , 1997, neither the Trust nor the Company will,
----------
without the prior written consent of J.C. Bradford, directly or indirectly,
issue, sell, offer or agree to sell, grant any option for the sale of, or
otherwise dispose of, any securities that are substantially similar to the
Preferred Securities, any security convertible into exchangeable or exercisable
for Preferred Securities or any equity security substantially similar to the
Preferred Securities (except for the Securities issued pursuant to this
Agreement or with the prior written consent of J.C. Bradford).
SECTION 4. Payment of Expenses.
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The Company will pay all costs and expenses incident to the performance of
its obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 9 hereof, including all costs and expenses incident to (i) the printing
or other production of documents, including the Operative Documents, with
respect to the transactions, including any costs of printing the Registration
Statement originally filed with respect to the Preferred Securities and any
amendment thereto, any Rule 462(b) Registration Statement, and the Prospectus
and any amendment or supplement thereto, this Agreement and any blue sky
memoranda, (ii) all arrangements relating to the delivery to the Underwriters of
copies of the foregoing documents, (iii) the fees and disbursements of the
counsel, the accountants and any other experts or advisors retained by the
Company, (iv) preparation, issuance and delivery to the Underwriters of any
certificates evidencing the Preferred Securities, including transfer agent's and
registrar's fees, (v) the qualification of the Preferred Securities under state
securities and blue sky laws, including filing fees and fees and disbursements
of counsel for the Underwriters relating thereto, (vi) the filing fees of the
Commission and the National Association of Securities Dealers, Inc. relating to
the Preferred Securities, (vii) the fees and expenses of listing the Preferred
Securities on the American Stock Exchange, Inc., and (viii) the fees and
expenses of any trustee appointed under any of the Operative Documents,
including the fees and disbursements of counsel for such trustees in connection
with the Operative Document. If the sale of the Preferred Securities provided
for herein
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is not consummated because any condition to the obligations of the Underwriters
set forth in Section 5 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 9 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Representatives upon demand for all reasonable out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by it in
connection with the proposed purchase and sale of the Preferred Securities. The
Company shall not in any event be liable to any of the Underwriters for the loss
of anticipated profits from the transactions covered by this Agreement.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof or
in certificates of any Trustee of the Trust, officer of the Company or any of
its subsidiaries delivered pursuant to the provisions hereof, to the performance
by the Offerors of their obligations hereunder, and to the following further
conditions:
(a) If the Registration Statement or any post-effective amendment to the
Registration Statement filed prior to the First Closing Date has not been
declared effective as of the time of execution hereof, the Registration
Statement or any such post-effective amendment, and, if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement, shall have
been declared effective not later than the earlier of (i) 11:00 A.M., Eastern
Standard Time, on the date on which the amendment to the Registration Statement
originally filed with respect to the Preferred Securities or the 462(b)
Registration Statement, as the case may be, containing information regarding the
offering price of the Preferred Securities has been filed with the Commission,
and (ii) the time confirmations are sent or given as specified by Rule 462(b)
or, with respect to the Registration Statement, such later time and date as
shall have been consented to by the Representative; if required, the Prospectus
or any term sheet that constitutes a part thereof and any amendment or
supplement thereto shall have been filed with the Commission in the manner and
within the time period required by Rules 434 and 424(b) under the Act; no stop
order suspending the effectiveness of the Registration Statement or any
amendment thereto shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Company or
the Representative, shall be contemplated by the Commission; and the Company
shall have complied with any request of the Commission for additional
information (to be included in the Registration Statement or the Prospectus or
otherwise).
(b) Opinion of Outside Counsel for Offerors. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Womble Carlyle Sandridge & Rice, PLLC, counsel for the Company, to the
effect set forth in Exhibit A hereto.
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<PAGE>
(c) Opinion of Special Delaware Counsel for Offerors. If the opinion
referred to in Section 5(b) does not cover applicable matters of Delaware law,
at the Closing Date, the Underwriters shall have received the favorable opinion,
dated as of the Closing Date, of special Delaware counsel to the Offerors, to
the effect set forth in Exhibit B hereto.
(d) Opinion of Counsel for State Street Bank & Trust Company. At the
Closing Date, the Underwriters shall have received the favorable opinion, dated
as of the Closing Date, of , counsel to State Street Bank &
--------------------
Trust Company, as Property Trustee under the Trust Agreement, and Guarantee
Trustee under the Preferred Securities Guarantee Agreement, to the effect set
forth in Exhibit C hereto.
(e) Opinion of Special Tax Counsel for the Offerors. At the Closing Date,
the Underwriters shall have received an opinion, dated as of the Closing Date,
of Womble Carlyle Sandridge & Rice, PLLC, special tax counsel to the Offerors,
that (i) the Trust will be classified for United States federal income tax
purposes as a grantor trust and not as an association taxable as a corporation
and (ii) although the discussion set forth in the Prospectus under the heading
"Certain Federal Income Tax Consequences" does not purport to discuss all
possible United States federal income tax consequences of the purchase,
ownership and disposition of the Preferred Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Preferred Securities under current law. Such opinion may be
conditioned on, among other things, the initial and continuing accuracy of the
facts, financial and other information, covenants and representations set forth
in certificates of officers of the Company and other documents deemed necessary
for such opinion.
(f) Opinion of Counsel for Underwriters. At the Closing Date, the
Underwriters shall have received the favorable opinion, dated as of the Closing
Date, of Alston & Bird LLP, counsel for the Underwriters, with respect to the
incorporation and legal existence of the Company, the Preferred Securities, the
Indenture, the Preferred Securities Guarantee Agreement, this Agreement, and the
Prospectus and other related matters as the Underwriters may require. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of Trustees
of the Trust, officers of the Company and its subsidiaries and certificates of
public officials. Such counsel may rely as to matters of Delaware law on the
opinions of counsel furnished pursuant to subsections (b) and (c) of this
Section.
(g) Certificates. At the Closing Date, there shall not have been, since
the date hereof or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust, or the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business, and the Underwriters shall
have received a certificate of the Chairman, any Vice Chairman, the Chief
Executive Officer, the President or any Vice President of the Company and of the
chief financial officer or the chief accounting officer of the Company and a
certificate of an Administrative Trustee of the Trust, dated as of the Closing
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<PAGE>
Date, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof were true and
correct, in all material respects, when made and are true and correct, in all
material respects, with the same force and effect as though expressly made at
and as of the Closing Date, and (iii) the Offerors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Underwriters shall have received from Mauldin & Jenkins LLC a
letter, dated such date, in form and substance reasonably satisfactory to the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to Underwriters with respect to the
financial statements and certain financial information contained in the
Prospectus.
(i) Bring-down Comfort Letter. At the Closing Date, the Underwriters shall
have received from Mauldin & Jenkins LLC a letter, dated as of the Closing Date,
to the effect that they reaffirm the statements made in the letter furnished
pursuant to subsection (h) of this Section, except that the specified date
referred to shall be a date not more than three business days prior to the
Closing Date.
(j) On or before the Closing Date, the Representatives and counsel for the
Underwriters shall have received such further certificates, documents or other
information as they may have reasonably requested from the Company.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Offerors at any
time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6, 7 and 8 and this Section 5(l) shall survive any such
termination and remain in full force and effect.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
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reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase any pay
for any Option Preferred Securities shall be subject, in their discretion, to
each of the foregoing conditions to purchase the Firm Preferred Securities,
except that all references to the Firm Preferred Securities and the First
Closing Date shall be deemed to refer to such Option Preferred Securities and
the related Second Closing Date, respectively.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters. The Offerors agree to jointly and
severally indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact included in the Registration Statement
or any amendment to the Registration Statement, including the information
deemed to be part of the Registration Statement pursuant to Rule 430A(b) of
the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus, including the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Offerors; and
(iii) against any and all expense whatsoever, as incurred (including
the reasonable fees and disbursements of counsel chosen by J.C. Bradford),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
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<PAGE>
omission, to the extent that any such expense is not paid under (i) or (ii)
above; provided, however, that this Section 6(a) shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to
the Offerors by any Underwriter through J.C. Bradford expressly for use in
the Registration Statement or any amendment to the Registration Statement
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto). Such written information provided by the Underwriters
is referred to as "Underwriter Information."
The foregoing indemnification with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Preferred Securities, or any person controlling such Underwriter, if a copy
of the Prospectus (as then amended or supplemented if the Offerors shall
have furnished any amendments or supplements thereto) was not sent or given
by or on behalf of such Underwriter to such person, if such is required by
law, at or prior to the written confirmation of the sale of such shares to
such person and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability.
(b) Indemnification of Offerors, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors and
officers, the Trust, each of the Trustees and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Offerors by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by J.C. Bradford, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Offerors. An indemnifying party
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may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. Notwithstanding
the last sentence of Section 6(c), if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it shall be liable
for any settlement effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall have received notice
of the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement; provided that an indemnifying party shall not be liable for any such
settlement effected without its consent if such indemnifying party (1)
reimburses such indemnified party in accordance with such request to the extent
it considers such request to be reasonable and (2) provides written notice to
the indemnified party substantiating the unpaid balance as unreasonable, in each
case prior to the date of such settlement.
SECTION 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the one
hand and the Underwriters on the other hand from the offering of the Preferred
Securities pursuant to this Agreement.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Preferred
Securities pursuant to this Agreement shall be deemed to be in the same
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respective proportions as the total net proceeds from the offering of the
Preferred Securities pursuant to this Agreement (before deducting expenses)
received by the Offerors and the total commission received by the Underwriters
in the Preferred Offering, bear to the aggregate initial offering price of the
Preferred Securities.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Preferred Securities purchased by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each officer and director of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
--------------------------------------------------------------
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or trustees of the Trust submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Trust or the Company, and shall survive
delivery of the Preferred Securities to the Underwriters.
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SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Underwriters may terminate this Agreement
with respect to the Firm Preferred Securities or any Option Preferred
Securities, by notice to the Offerors, at any time at or prior to the First
Closing Date or the Second Closing Date, respectively (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Prospectus, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Trust or the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or any outbreak of hostilities or escalation thereof or
other calamity or crisis, in each case the effect of which is such as to make
it, in the judgment of the Underwriters, impracticable to market the Preferred
Securities or to enforce contracts for the sale of the Preferred Securities, or
(iii) if trading in any securities of the Company has been suspended or limited
by the Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market System has been
suspended or limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal or Georgia authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 6, 7,
and 8 and this Section 9 shall survive such termination and remain in full force
and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
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of the Underwriters shall fail at the First Closing Date or at the Second
Closing Date to purchase the First Preferred Securities or the Option Preferred
Securities, as the case may be, which it or they are obligated to purchase under
this Agreement (the "Defaulted Securities"), the Underwriters shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other Underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Underwriters shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the total
number of Securities to be purchased hereunder, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective purchasing obligations
hereunder bear to the purchasing obligations of all non-defaulting Underwriters,
or
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(b) if the number of Defaulted Securities exceeds 10% of the Securities to
be purchased hereunder, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Underwriters or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
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shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Underwriters c/o J.C. Bradford at 330
Commerce Street, Nashville, Tennessee 37201, attention of Michael Nunan with a
copy to Alston & Bird LLP, 601 Pennsylvania Avenue, N.W., North Building, Suite
250, Washington, D.C. 20004, attention of Frank M. Conner III; notices to the
Offerors shall be directed to Premier Bancshares, Inc., 2180 Atlanta Plaza, 950
East Paces Ferry Road, Atlanta, Georgia 30326, attention of Darrell D. Pittard,
Chairman and Chief Executive Officer, with a copy to Womble Carlyle Sandridge &
Rice, PLLC, 1275 Peachtree Street, N.E., Suite 700, Atlanta, Georgia 30309,
attention of Steven S. Dunlevie.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters and the Offerors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Offerors and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters and the Offerors
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Preferred Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA.
-25-
<PAGE>
SECTION 14. Effect of Headings. The Article and Section headings herein
------------------
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Underwriters and the Offerors in accordance with its terms.
Very truly yours,
PREMIER BANCSHARES, INC.
By:
------------------------
Title:
------------------------
PREMIER CAPITAL TRUST
By:
------------------------
Title:
---------------------
CONFIRMED AND ACCEPTED,
as of the date first above written:
J.C. BRADFORD & CO.
INTERSTATE/JOHNSON LANE
STERNE, AGEE & LEACH, INC.
By: J.C. BRADFORD & CO.
By:
----------------------
Authorized Signatory
-26-
<PAGE>
SCHEDULE A
Number of
Preferred
Name of Underwriters Securities
- ------------------------------------------------ ------------
J.C. Bradford & Co. ------------
Interstate/Johnson Lane Corporation ------------
Sterne Agee & Leach, Inc. ------------
Total ------------
<PAGE>
EXHIBIT A
Form of Opinion of Womble Carlyle Sandridge & Rice PLLC, Counsel for the
Company, to be delivered pursuant to Section 5(b) of this Agreement:
1. The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the State of Georgia and has
full power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and in the Prospectus.
The Company is duly authorized to transact business and is in good standing in
each jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to the
extent that the failure to so qualify or to be in good standing would not have a
material adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
2. The Company is registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
3. Premier Bank has been duly organized and is validly existing and in
good standing as a state-chartered bank under the laws of the State of Georgia
and has full power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and in the
Prospectus; Central and Southern Bank has been duly organized and is validly
existing and in good standing as a state-chartered bank under the laws of the
State of Georgia and has full power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and in the Prospectus; Central and Southern Bank of North Georgia,
F.S.B. has been duly organized and is validly existing and in good standing as a
state-chartered bank under the laws of the United States and has full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and in the Prospectus; Premier
Lending has been duly organized and is validly existing and in good standing as
a corporation under the laws of the State of Georgia and has full power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and in the Prospectus (Premier Bank,
Central and Southern Bank, Central and Southern Bank of North Georgia, F.S.B.,
and Premier Lending are referred to collectively as the "Significant
Subsidiaries"). Each Significant Subsidiary is duly authorized to transact
business and is in good standing in each jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so qualify or
to be in good standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise.
A-1
<PAGE>
4. All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and non-assessable and
have not been issued in violation of the preemptive rights of any shareholder of
the Company.
5. Under the laws of the State of Georgia, its Articles of
Incorporation and its Bylaws, the Company has the corporate power and authority
to execute and deliver, and to perform its obligations under, the Operative
Documents to which it is a party and to issue and perform its obligations under
the Subordinated Debentures.
6. This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions.
7. The Trust Agreement has been duly authorized, executed and delivered
by the Company.
8. Each of the Guarantees has been duly and validly authorized,
executed and delivered by the Company, and constitutes a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by the
Enforceability Exceptions; and the Guarantee has been duly qualified under the
1939 Act.
9. The Indenture has been duly and validly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except to
the extent that enforcement thereof may be limited by the Enforceability
Exceptions; and the Indenture has been duly qualified under the 1939 Act.
10. The Subordinated Debentures have been duly and validly authorized
for issuance by the Company, and when executed, authenticated and delivered in
the manner provided for in the Indenture and paid for in accordance with the
Subordinated Debenture Purchase Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by the Enforceability Exceptions;
and the issuance of the Subordinated Debentures is not subject to preemptive or
other similar rights arising under the Articles of Incorporation or Bylaws of
the Company, under the laws of the State of Georgia or, to the best knowledge of
such counsel, otherwise.
11. The statements in the Subscription Prospectus and the Prospectus
under the captions "Capitalization," "Description of Preferred Securities,"
"Description of Subordinated Debentures," "Description of the Guarantee,"
"Relationship Among the Preferred Securities, the Subordinated Debentures and
the Guarantee," and "Description of Premier Capital Stock," to the extent that
such statements purport to summarize certain
A-2
<PAGE>
provisions of the Preferred Securities, the Subordinated Debentures, the
Guarantee, the Indenture, the Common Stock, the Company's Articles of
Incorporation and Bylaws, and the Georgia Business Corporation Code have been
reviewed and fairly summarize such provisions in all material respects and
conform in all material respects to the instruments defining the same.
12. Neither the Company nor the Trust is, or immediately following
consummation of the transactions contemplated by the Agreement will be, required
to be registered under the Investment Company Act of 1940, as amended.
13. The statements of law or legal conclusions and opinions set forth
under the section entitled "Material Federal Income Tax Consequences" in the
Prospectus, subject to the assumptions and conditions described therein,
constitute our opinion. Our opinion is based on the case law, Internal Revenue
Service rulings and pronouncements and judicial decisions as they exist at the
date hereof. These authorities are all subject to change, and such change may
be made with retroactive effect. We can give no assurances that, after such
change, our opinion would not be different.
14. Except as disclosed in the Registration Statement or the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or
threatened against or affecting the Company or any subsidiary that in the final
outcome could in our judgment result in any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise, or
that could materially and adversely affect the properties or assets of the
Company and its subsidiaries considered as one enterprise, or that could
adversely affect the consummation of the transactions contemplated in the
Operative Documents. The aggregate liability or loss, if any, resulting from
the final outcome of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or which affect any of its properties that
are not described in the Registration Statement or the Prospectus, including
ordinary routine litigation incidental to its business, would not have a
material adverse effect on the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise.
16. Neither the Company nor any subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it may be bound
or to which any of its properties may be subject, except for such defaults that
would not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise.
17. The execution and delivery by the Company of the Operative
Documents to which it is a party, the issuance and delivery of the Preferred
Securities and the Common Securities and the consummation by the Company of the
transactions
A-3
<PAGE>
contemplated by the Operative Documents do not and will not violate or conflict
with the Articles of Incorporation or the Bylaws of the Company.
18. The execution and delivery by the Company of the Operative
Documents to which it is a party, the issuance and delivery of the Preferred
Securities and the Common Securities and the consummation by the Company of the
transactions contemplated by the Operative Documents do not and will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary under (a) any indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any subsidiary is a party
or by which it may be bound or to which any of its properties may be subject, or
(b) any existing applicable law, rule, regulation, qualification, judgment,
order or decree of any governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of its
properties except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company or its subsidiaries considered as one enterprise.
19. No Governmental Approval which has not been made or obtained is
required for the execution or delivery by the Company of the Operative Documents
to which it is a party, or the consummation by the Company of the transactions
contemplated thereby.
20. The Registration Statement and any post-effective amendments
thereto have become effective under the 1933 Act and, to the best knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement or such amendments thereto has been issued under the 1933 Act, and no
proceeding therefor has been instituted or is pending or threatened by the
Georgia Department, the Federal Reserve Board, or the Commission.
21. The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing Date
(other than the financial statements and related notes thereto, related
schedules and financial and statistical data, and descriptions of accounting
treatment included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations. As of the date they were filed with the
Commission, the documents incorporated by reference in the Registration
Statement and any post-effective amendments thereto (except for the financial
statements and related notes thereto, related schedules and financial and
statistical data, and descriptions of accounting treatment included therein, as
to which such counsel need express no opinion) complied as to form in all
material respects with the requirements of the 1934 Act and the 1934 Act
Regulations.
A-4
<PAGE>
22. Such counsel has participated in the preparation of the Registration
Statement and the Prospectus and no facts have come to the attention of such
counsel to lead them to believe that, as of the effective date of the
Registration Statement or any post-effective amendment thereto or the date of
the Prospectus or as of the Closing Date, either the Registration Statement, any
post-effective amendment thereto, the Subscription Prospectus or the Prospectus
(or, as of its date, any further amendment or supplement thereto made by the
Company prior to the Closing Date) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (except for the financial statements
and related notes thereto, related schedules and financial and statistical data,
and descriptions of accounting treatment included therein, as to which such
counsel need express no opinion).
23. Such counsel does not know of any amendment or supplement to the
Registration Statement or any post-effective amendment thereto required to be
filed or of any contract, agreement, instrument, lease, license, arrangement or
understanding of a character required to be filed as an exhibit to, described in
or incorporated by reference into, the Registration Statement, post-effective
amendment thereto, or the Prospectus, as amended or supplemented, which are not
filed, described or incorporated by reference as required.
A-5
<PAGE>
EXHIBIT B
Form of Opinion of Richards, Layton & Finger, Special Delaware Counsel to
the Offerors, to be delivered pursuant to Section 5(c) of this Agreement:
1. The Trust has been duly created and is validly existing in good
standing as a statutory business trust under the Delaware Business Trust Act.
2. Under the Delaware Business Trust Act and the Trust Agreement, the
Trust has the trust power and authority to (a) execute and deliver, and to
perform its obligations under, the Operative Documents to which it is a party,
(b) issue and perform its obligations under the Preferred Securities and the
Common Securities, (c) purchase and hold the Subordinated Debentures and (d)
conduct its business as described in the Registration Statement, Post-Effective
Amendment No. 1 or 2 thereto, the Subscription Prospectus or the Prospectus.
3. The Trust Agreement constitutes a valid and binding obligation of the
Company and the Administrative Trustees, and is enforceable against the Company
and the Administrative Trustees, in accordance with its terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights and remedies
of creditors generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (iii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
4. The Preferred Securities have been duly authorized for issuance by the
Trust Agreement, and the Preferred Securities, when duly issued, executed and
authenticated in accordance with the Trust Agreement and delivered and paid for
in accordance with the Agreement, will be, subject to the qualifications set
forth in paragraph 6 below, fully paid and nonassessable undivided beneficial
interests in the assets of the Trust and will entitle the holders thereof to the
benefits of the Trust Agreement, except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
5. The Common Securities have been duly authorized for issuance by the
Trust Agreement and, when issued, executed and authenticated in accordance with
the Trust Agreement and delivered and paid for in accordance with the Common
Security
B-1
<PAGE>
Purchase Agreement, will be validly issued undivided beneficial interests in the
assets of the Issuer Trust. The issuance of the Common Securities is not
subject to preemptive rights under the Delaware Business Trust Act or the Trust
Agreement.
6. The holders of the Preferred Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the Delaware General Corporation Law.
We bring to your attention, however, that the holders of the Preferred
Securities may be obligated, pursuant to the Trust Agreement, to (a) provide
indemnity and/or security in connection with, and pay taxes or governmental
charges arising from, transfers of Preferred Securities and the issuance of
replacement Preferred Securities, and (b) provide security and indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and powers under the Trust Agreement.
7. Based on our review of applicable laws, no Delaware governmental
approval which has not been obtained or taken and is not in full force and
effect is required solely to authorize or in connection with the execution or
delivery by the Trust of the Operative Documents to which it is a party, or the
consummation by the Trust of the transactions contemplated thereby. We express
no opinion in this paragraph 8, however, as to any governmental approvals which
may be required under state securities or "blue sky" laws.
8. None of the execution and delivery by the Trust of the Operative
Documents, or the issuance and sale of the Preferred Securities by the Trust in
accordance with the terms of the Agreement or the consummation by the Trust of
the other transactions contemplated thereby, (a) violate any applicable Delaware
laws, or (b) conflict with the Certificate of Trust or the Trust Agreement,
except that we express no opinion in this paragraph 9 with respect to (i) the
rights to indemnity and contribution contained in the Trust Agreement which may
be limited by state securities laws or the public policy underlying such laws or
(ii) any state securities or "blue sky" laws.
B-2
<PAGE>
EXHIBIT C
Form of Opinion of Bingham, Dana & Gould, Special Counsel for the Property
Trustee, Guarantee Trustee, and Debenture Trustee to be delivered pursuant to
Section 5(d) of this Agreement:
1. The Trustee is a banking corporation duly incorporated and validly
existing under the laws of the State of ________ with all necessary power and
authority to execute and deliver, and to carry out and perform its obligations
under the terms of the Agreements.
2. The execution, delivery and performance by the Property Trustee of the
Trust Agreement, the execution, delivery and performance by the Guarantee
Trustee of the Guarantee and the execution, delivery and performance by the
Debenture Trustee of the Indenture have been duly authorized by all necessary
corporate action on the part of the Property Trustee, the Guarantee Trustee and
the Debenture Trustee, respectively. The Trust Agreement, the Guarantee and the
Indenture have been duly executed and delivered by the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively, and constitute the
legal, valid and binding obligations of the Property Trustee, the Guarantee
Trustee and the Debenture Trustee, respectively, enforceable against the
Property Trustee, the Guarantee Trustee and the Debenture Trustee, respectively,
in accordance with their terms, except as enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3. The execution, delivery and performance of the Trust Agreement, the
Guarantee and the Indenture by the Property Trustee, the Guarantee Trustee and
the Debenture Trustee, respectively, does not conflict with or constitute a
breach of the Organization Certificate or By-laws of the Property Trustee, the
Guarantee Trustee and the Debenture Trustee, respectively or the terms of any
indenture or other agreement or instrument known to such counsel and to which
the Property Trustee, the Guarantee Trustee or the Debenture Trustee,
respectively, is a party or is bound or any judgment, order or decree known to
such counsel to be applicable to the Property Trustee, the Guarantee Trustee or
the Debenture Trustee, respectively, of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction over
the Property Trustee, the Guarantee Trustee or the Debenture Trustee,
respectively.
4. No consent, approval or authorization of, or registration with or notice
to any federal or [state] banking authority is required for the execution,
delivery or performance by the Property Trustee, the Guarantee Trustee or the
Debenture Trustee of the Trust Agreement, the Guarantee and the Indenture,
respectively.
C-1
<PAGE>
EXHIBIT 4.5
CERTIFICATE OF TRUST
OF
PREMIER CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF PREMIER CAPITAL TRUST I (the "Trust") is being
duly executed and filed by Wilmington Trust Company, a Delaware banking
corporation, and Darrell D. Pittard and Robert C. Oliver, each an individual, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
1. NAME. The name of the business trust formed hereby is Premier Capital
Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee of the
Trust in the State of Delaware is Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001,
Attention: Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust shall be effective on
October 21, 1997.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the Trust,
have executed this Certificate of Trust as of the effective date above written.
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Donald G. MacKelcan
-----------------------
Name: Donald G. MacKelcan
--------------------
Title: Assistant Vice President
---------------------------
/s/ Darrell D. Pittard
-----------------------
Darrell D. Pittard, as Trustee
/s/ Robert C. Oliver
---------------------
Robert C. Oliver, as Trustee
<PAGE>
EXHIBIT 4.6
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of October 21, 1997 (this "Trust
Agreement"), among (i) Premier Bancshares, Inc., a Georgia corporation (the
"Depositor"), (ii) Wilmington Trust Company, a Delaware banking corporation, as
trustee, and (iii) Darrell D. Pittard and Robert C. Oliver, each an individual,
as trustees (each of such trustees in (ii) and (iii) a "Trustee" and
collectively, the "Trustees"). The Depositor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as "Premier
Capital Trust I" in which name the Trustees, or the Depositor to the extent
provided herein, may engage in the transactions contemplated hereby, make and
execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over the
Trustees the sum of Ten Dollars ($10.00). The Trustees hereby acknowledge
receipt of such amount in trust from the Depositor, which amount shall
constitute the initial trust estate. The Trustees hereby declare that they will
hold the trust estate in trust for the Depositor. It is the intention of the
parties hereto that the Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq.
(the "Business Trust Act"), and that this document constitute the governing
instrument of the Trust. The Trustees are hereby authorized and directed to
execute and file a certificate of trust with the Delaware Secretary of State in
accordance with the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an Amended and Restated
Trust Agreement, satisfactory to each such party and substantially in the form
included as an exhibit to the 1933 Act Registration Statement (as defined
below), to provide for the contemplated operation of the Trust created hereby
and the issuance of the Preferred Securities and Common Securities referred to
therein. Prior to the execution and delivery of such Amended and Restated Trust
Agreement, the Trustees shall not have any duty or obligation hereunder or with
respect to the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery of any
licenses, consents or approvals required by applicable law or otherwise.
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement") (including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the American Stock Exchange or a national stock
exchange (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other applications, statements,
<PAGE>
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on any of the
Exchanges; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or blue sky
laws of such jurisdictions as the Depositor, on behalf of the Trust, may deem
necessary or desirable and (iv) to execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Depositor and the Underwriter(s) named therein, substantially in the form
included as an exhibit to the 1933 Act Registration Statement. In the event that
any filing referred to in clauses (i), (ii) and (iii) above is required by the
rules and regulations of the Commission, an Exchange or state securities or blue
sky laws, to be executed on behalf of the Trust by one or more of the Trustees,
each of the Trustees, in its or his capacity as a Trustee of the Trust, is
hereby authorized and, to the extent so required, directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that Wilmington Trust Company in its capacity as a Trustee of
the Trust shall not be required to join in any such filing or execute on behalf
of the Trust any such document unless required by the rules and regulations of
the Commission, the Exchange or state securities or blue sky laws. In connection
with the filings referred to above, the Depositor and Darrell D. Pittard and
Robert C. Oliver, each as Trustees and not in their individual capacities,
hereby constitutes and appoints Darrell D. Pittard and Robert C. Oliver, and
each of them, as its true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for the Depositor or such Trustee or
in the Depositor's or such Trustees' name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the 1933 Act Registration Statement and the 1934 Act Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Commission, the Exchange and administrators of
the state securities or blue sky laws, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substitutes, shall do
or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be three (3) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Depositor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws of
principles).
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
PREMIER BANCSHARES, INC.,
as Depositor
By: /s/ Darrell D. Pittard
----------------------
Name: Darrell D. Pittard
Title: Chairman of the Board and Chief
Executive Officer
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ Donald G. MacKelcan
-----------------------
Name: Donald G. MacKelcan
---------------------
Title: Assistant Vice President
--------------------------
/s/ Darrell D. Pittard
----------------------
Darrell D. Pittard, as Trustee
/s/ Robert C. Oliver
--------------------
Robert C. Oliver, as Trustee
3
<PAGE>
EXHIBIT 12.1
PREMIER BANCSHARES, INC.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
December 31, June 30,
------------------------------------------------------------ -------------------
1992 1993 1994 1995 1996 1996 1997
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding interest on deposits
Earnings:
Earnings before income taxes (4,022) (284) 2,873 6,322 7,204 3,974 5,667
Fixed charges from below 55 168 678 2,291 2,756 1,399 1,287
------ ------ ------ ------ ------ ------ ------
Earnings (3,967) (116) 3,551 8,613 9,960 5,373 6,954
====== ====== ====== ====== ====== ====== ======
Fixed charges:
Interest expense 55 168 678 2,291 2,756 1,399 1,287
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges (72.13) (0.69) 5.24 3.76 3.61 3.84 5.40
====== ====== ====== ====== ====== ====== ======
Including interest on deposits
Earnings:
Earnings before income taxes (4,022) (284) 2,873 6,322 7,204 3,974 5,667
Fixed charges from below 21,694 15,204 13,028 16,662 20,238 9,766 11,379
------ ------ ------ ------ ------ ------ ------
Earnings 17,672 14,920 15,901 22,984 27,442 13,740 17,046
====== ====== ====== ====== ====== ====== ======
Fixed charges:
Interest expense 21,694 15,204 13,028 16,662 20,238 9,766 11,379
====== ====== ====== ====== ====== ====== ======
Ratio of earnings to fixed charges 0.81 0.98 1.22 1.38 1.36 1.41 1.50
====== ====== ====== ====== ====== ====== ======
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the October 22, 1997
Registration Statement on Form S-3 of our report, dated January 31, 1997,
relating to the consolidated financial statements of Premier Bancshares, Inc.
and subsidiaries, contained in the Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 and our report, dated January 31, 1997, except
for Note 2 as to which the date is June 23, 1997, relating to the consolidated
financial statements of Premier Bancshares, Inc. and subsidiaries restated for
the combination of Central and Southern Holding Company accounted for as a
pooling of interests, contained in the Current Report on Form 8-K dated
October 20, 1997, and to the reference to our Firm under the caption
"Experts."
MAULDIN & JENKINS, LLC
/s/ Mauldin & Jenkins, LLC
Atlanta, Georgia
October 22, 1997
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
_____________________
PREMIER BANCSHARES, INC.
(Exact name of obligor as specified in its charter)
GEORGIA 58-1793778
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2180 ATLANTA PLAZA
950 EAST PACES FERRY ROAD
ATLANTA, GEORGIA 30326
(Address of principal executive offices) (Zip Code)
____________________
% SUBORDINATED DEBENTURES
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH
IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of Massachusetts,
100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington, D.C., Federal
Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its parent, State
Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A copy of the Articles of Association of the trustee, as now in effect,
is on file with the Securities and Exchange Commission as Exhibit 1 to
Amendment No. 1 to the Statement of Eligibility and Qualification of
Trustee (Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of Massachusetts
that no certificate of authority for the trustee to commence business
was necessary or issued is on file with the Securities and Exchange
Commission as Exhibit 2 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST
POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise corporate trust
powers is on file with the Securities and Exchange Commission as Exhibit
3 to Amendment No. 1 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on file with
the Securities and Exchange Commission as Exhibit 4 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File No. 33-37823) and
is incorporated herein by reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 16th day of September, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-----------------
PAUL D. ALLEN
VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by PREMIER
BANCSHARES, INC. of its % SUBORDINATED DEBENTURES, we hereby consent that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-----------------
PAUL D. ALLEN
VICE PRESIDENT
DATED: SEPTEMBER 16, 1997
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business June 30, 1997, published
-------------
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in accordance with a
call made by the Commissioner of Banks under General Laws, Chapter 172, Section
22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................. 1,842,337
Interest-bearing balances........................................... 8,771,397
Securities............................................................... 10,596,119
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary................................. 5,953,036
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 5,769,090
Allowance for loan and lease losses ................. 74,031
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances............. 5,695,059
Assets held in trading accounts.......................................... 916,608
Premises and fixed assets................................................ 374,999
Other real estate owned.................................................. 755
Investments in unconsolidated subsidiaries............................... 28,992
Customers' liability to this bank on acceptances outstanding............. 99,209
Intangible assets........................................................ 229,412
Other assets............................................................. 1,589,526
----------
Total assets............................................................. 36,097,449
==========
LIABILITIES
Deposits:
In domestic offices................................................. 11,082,135
Noninterest-bearing............................... 8,932,019
Interest-bearing.................................. 2,150,116
In foreign offices and Edge subsidiary.............................. 13,811,677
Noninterest-bearing............................... 112,281
Interest-bearing.................................. 13,699,396
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary................................. 6,785,263
Demand notes issued to the U.S. Treasury and Trading Liabilities......... 755,676
Other borrowed money..................................................... 716,013
Subordinated notes and debentures........................................ 0
Bank's liability on acceptances executed and outstanding................. 99,605
Other liabilities........................................................ 841,566
Total liabilities........................................................ 34,091,935
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................ 0
Common stock............................................................. 29,931
Surplus.................................................................. 437,183
Undivided profits and capital reserves/Net unrealized
holding gains (losses).............................................. 1,542,695
Cumulative foreign currency translation adjustments...................... (4,295)
Total equity capital..................................................... 2,005,514
----------
Total liabilities and equity capital..................................... 36,097,449
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE>
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
---------------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
MASSACHUSETTS 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
---------------
PREMIER CAPITAL TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE XX-XXXXXXX
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
202 EAST CENTER STREET
WARSAW, INDIANA 46581
(Address of principal executive offices) (Zip Code)
---------------
PREFERRED SECURITIES
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH
IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its parent,
State Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A copy of the Articles of Association of the trustee, as now in effect,
is on file with the Securities and Exchange Commission as Exhibit 1 to
Amendment No. 1 to the Statement of Eligibility and Qualification of
Trustee (Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of Massachusetts
that no certificate of authority for the trustee to commence business
was necessary or issued is on file with the Securities and Exchange
Commission as Exhibit 2 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST
POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise corporate trust
powers is on file with the Securities and Exchange Commission as
Exhibit 3 to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the Registration
Statement of Morse Shoe, Inc. (File No. 22-17940) and is incorporated
herein by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein by
reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 16th day of September, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-----------------------------------
PAUL D. ALLEN
VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by PREMIER CAPITAL
TRUST of its PREFERRED SECURITIES, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-----------------------------------
PAUL D. ALLEN
VICE PRESIDENT
DATED: SEPTEMBER 16, 1997
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business June 30, 1997, published
-------------
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in accordance with a
call made by the Commissioner of Banks under General Laws, Chapter 172, Section
22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................. 1,842,337
Interest-bearing balances........................................... 8,771,397
Securities............................................................... 10,596,119
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary................................. 5,953,036
Loans and lease financing receivables:
Loans and leases, net of unearned income ........ 5,769,090
Allowance for loan and lease losses.............. 74,031
Allocated transfer risk reserve.................. 0
Loans and leases, net of unearned income and allowances............. 5,695,059
Assets held in trading accounts.......................................... 916,608
Premises and fixed assets................................................ 374,999
Other real estate owned.................................................. 755
Investments in unconsolidated subsidiaries............................... 28,992
Customers' liability to this bank on acceptances outstanding............. 99,209
Intangible assets........................................................ 229,412
Other assets............................................................. 1,589,526
----------
Total assets............................................................. 36,097,449
==========
LIABILITIES
Deposits:
In domestic offices................................................. 11,082,135
Noninterest-bearing.......................... 8,932,019
Interest-bearing............................. 2,150,116
In foreign offices and Edge subsidiary.............................. 13,811,677
Noninterest-bearing.......................... 112,281
Interest-bearing............................. 13,699,396
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary................................. 6,785,263
Demand notes issued to the U.S. Treasury and Trading Liabilities......... 755,676
Other borrowed money..................................................... 716,013
Subordinated notes and debentures........................................ 0
Bank's liability on acceptances executed and outstanding................. 99,605
Other liabilities........................................................ 841,566
Total liabilities........................................................ 34,091,935
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................ 0
Common stock............................................................. 29,931
Surplus.................................................................. 437,183
Undivided profits and capital reserves/Net unrealized holding
gains (losses)...................................................... 1,542,695
Cumulative foreign currency translation adjustments...................... (4,295)
Total equity capital..................................................... 2,005,514
----------
Total liabilities and equity capital..................................... 36,097,449
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE>
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
---------
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
---------------------
PREMIER BANCSHARES, INC.
(Exact name of obligor as specified in its charter)
GEORGIA 58-1793778
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2180 ATLANTA PLAZA
950 EAST PACES FERRY ROAD
ATLANTA, GEORGIA 30326
(Address of principal executive offices) (Zip Code)
------------------
GUARANTEE
(Title of indenture securities)
<PAGE>
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO WHICH
IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of Massachusetts,
100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington, D.C., Federal
Deposit Insurance Corporation, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its parent, State
Street Boston Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A copy of the Articles of Association of the trustee, as now in effect,
is on file with the Securities and Exchange Commission as Exhibit 1 to
Amendment No. 1 to the Statement of Eligibility and Qualification of
Trustee (Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of Massachusetts
that no certificate of authority for the trustee to commence business
was necessary or issued is on file with the Securities and Exchange
Commission as Exhibit 2 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940) and is
incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST
POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise corporate trust
powers is on file with the Securities and Exchange Commission as Exhibit
3 to Amendment No. 1 to the Statement of Eligibility and Qualification
of Trustee (Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on file with
the Securities and Exchange Commission as Exhibit 4 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Eastern Edison Company (File No. 33-37823) and
is incorporated herein by reference thereto.
1
<PAGE>
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the Act is
annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 16th day of September, 1997.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-----------------
PAUL D. ALLEN
VICE PRESIDENT
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939, as amended, in connection with the proposed issuance by PREMIER
BANCSHARES, INC. of its GUARANTEE, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /S/ PAUL D. ALLEN
-----------------
PAUL D. ALLEN
VICE PRESIDENT
DATED: SEPTEMBER 16, 1997
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<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business June 30, 1997, published
-------------
in accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in accordance with a
call made by the Commissioner of Banks under General Laws, Chapter 172, Section
22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.................. 1,842,337
Interest-bearing balances........................................... 8,771,397
Securities............................................................... 10,596,119
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary................................. 5,953,036
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 5,769,090
Allowance for loan and lease losses ................. 74,031
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances............. 5,695,059
Assets held in trading accounts.......................................... 916,608
Premises and fixed assets................................................ 374,999
Other real estate owned.................................................. 755
Investments in unconsolidated subsidiaries............................... 28,992
Customers' liability to this bank on acceptances outstanding............. 99,209
Intangible assets........................................................ 229,412
Other assets............................................................. 1,589,526
----------
Total assets............................................................. 36,097,449
==========
LIABILITIES
Deposits:
In domestic offices................................................. 11,082,135
Noninterest-bearing.............................. 8,932,019
Interest-bearing................................. 2,150,116
In foreign offices and Edge subsidiary.............................. 13,811,677
Noninterest-bearing.............................. 112,281
Interest-bearing................................. 13,699,396
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary................................. 6,785,263
Demand notes issued to the U.S. Treasury and Trading Liabilities......... 755,676
Other borrowed money..................................................... 716,013
Subordinated notes and debentures........................................ 0
Bank's liability on acceptances executed and outstanding................. 99,605
Other liabilities........................................................ 841,566
Total liabilities........................................................ 34,091,935
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................ 0
Common stock............................................................. 29,931
Surplus.................................................................. 437,183
Undivided profits and capital reserves/Net unrealized
holding gains (losses).............................................. 1,542,695
Cumulative foreign currency translation adjustments...................... (4,295)
Total equity capital..................................................... 2,005,514
----------
Total liabilities and equity capital..................................... 36,097,449
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
