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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
July 29, 1998
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Date of Report (Date of earliest event reported)
Community Trust Financial Services Corporation
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Georgia 0-19030 58-1856582
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(STATE OR OTHER JURISDICTION (COMMISSION FILE NUMBER) (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NO.)
3844 Atlanta Highway, Hiram, Georgia 30141
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (770) 445-1014
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Not Applicable
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(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
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Item 5. Other Events
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Community Trust Financial Services Corporation (the "Company") is in the
process of offering for sale to the public a minimum of 176,471 shares, and a
maximum of 294,118 shares, of the Company's Common Stock at a price of $17.00
per share (the "Offering").
On July 29, 1998, the Company entered into a Standby Placement Agent and
Financial Advisor Agreement (the "Agreement") with Morgan Keegan & Company, Inc.
("Morgan Keegan"). Pursuant to the Agreement, Morgan Keegan will act as
placement agent in connection with the offer and sale by the Company of shares
of its Common Stock which have not yet been subscribed for in the Offering.
Also on July 29, 1998, the Company entered into a First Amendment to Escrow
Agreement (the "First Amendment") with The Bankers Bank ("Escrow Agent"). The
Company originally entered into an Escrow Agreement with the Escrow Agent on May
11, 1998, in connection with the Offering (the "Escrow Agreement"). The Escrow
Agreement contemplates that all proceeds from subscriptions for the initial
176,471 shares sold in the Offering will be deposited into an escrow account
maintained by the Escrow Agent. The purpose of the Amendment is to clarify that
subscription proceeds that are attributable to sales of shares effected through
Morgan Keegan, as placement agent, must be transmitted to the Escrow Agent by
noon of the next business day after receipt of such funds.
Item 7. Exhibits
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1.1 Standby Placement Agent and Financial Advisor Agreement, dated July
29, 1998, by and between the Company and Morgan Keegan.
10.13 First Amendment to Escrow Agreement, dated July 29, 1998, by and
between the Company and the Escrow Agent.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COMMUNITY TRUST FINANCIAL SERVICES CORPORATION
August 4, 1998 /s/ Ronnie Austin
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Date By: Ronnie Austin
Title: President
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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1.1 Standby Placement Agent and Financial
Advisor Agreement, dated July 29,
1998, by and between the Company and
Morgan Keegan
10.13 First Amendment to Escrow Agreement,
dated July 29, 1998, by and between the
Company and the Escrow Agent
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EXHIBIT 1.1
COMMUNITY TRUST FINANCIAL SERVICES CORPORATION
176,471 SHARES OF COMMON STOCK
($2.50 PAR VALUE PER SHARE) (MINIMUM)
294,118 SHARES OF COMMON STOCK
($2.50 PAR VALUE PER SHARE) (MAXIMUM)
STANDBY PLACEMENT AGENT AND FINANCIAL ADVISOR AGREEMENT
DATED: July 29, 1998
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STANDBY PLACEMENT AGENT AND FINANCIAL ADVISOR AGREEMENT
MORGAN KEEGAN & COMPANY, INC.
50 Front Street
Memphis, Tennessee 38103
Attn: Randolph C. Coley
Ladies and Gentlemen:
Community Trust Financial Services Corporation, a Georgia corporation (the
"Company"), hereby engages Morgan Keegan & Company, Inc. ("Morgan Keegan") to
serve as financial advisor and standby placement agent for the Company in its
efforts to raise between $3 million (minimum) to $5 million (maximum) in equity
capital. The Company intends to offer up to 294,118 shares (the "Shares") of
its $2.50 par value Common Stock (the "Common Stock") to its existing
Shareholders during the period from May 12, 1998 to June 12, 1998 (the "Offer to
Shareholders"). Morgan Keegan has agreed to provide financial advisory services
in connection with the Offer to Shareholders and to act as placement agent for
any Shares not sold in the Offer to Shareholders on or before June 12, 1998
("Unsold Shares"), all subject to and in accordance with the terms and
conditions of this Agreement.
1. The Company hereby appoints Morgan Keegan to act as its (i) financial
advisor, and (ii) exclusive placement agent on a "best efforts" basis in
connection with the sale by the Company, with the assistance of Morgan Keegan,
of any Unsold Shares (the "Standby Offering"). The Standby Offering shall be at
a price per share of $17.00 and shall expire on November 6, 1998, or such later
date as may be agreed upon by Morgan Keegan and the Company (the "Expiration
Date"). The Company has determined that the Standby Offering of the Shares is
to be made directly by the Company with the investors pursuant to purchase
agreements entered into by the investors and the Company.
2. As compensation for Morgan Keegan's services hereunder, the Company
will pay Morgan Keegan in cash (i) an advisory fee of $23,000 payable at the
Closing, as hereinafter defined, and (ii) a placement agent's commission of
2.00% of the aggregate proceeds to the Company of the Shares sold, with Morgan
Keegan's assistance, in the Standby Offering, if any Shares are sold in the
Standby Offering, with Morgan Keegan's assistance, payable at the Closing or
upon acceptance by the Company after the Closing of any additional subscriptions
the Company receives. In addition, whether or not the sale of the Shares is
completed, upon presentation by Morgan Keegan to the Company of invoices or
other evidence of Morgan Keegan's reasonable out-of-pocket expenses (including
fees of counsel not to exceed $22,500 and counsel's reasonable out-of-pocket
expenses) incurred in connection with its services hereunder, the Company will
reimburse Morgan Keegan upon demand for such expenses.
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Section 1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with Morgan Keegan that:
(a) A registration statement on Form S-2 (File No.333-49463) with respect
to the Shares, including a preliminary form of prospectus, has been prepared by
the Company in conformity with the requirements of the Securities Act of 1933,
as amended (the "1933 Act"), and the applicable rules and regulations (the "1933
Act Regulations") of the Securities and Exchange Commission (the "Commission"),
and has been filed with the Commission; and such amendments to such registration
statement as may have been required prior to the date hereof have been filed
with the Commission, and such amendments have been similarly prepared. Copies
of such registration statement and amendment or amendments and of each related
preliminary prospectus, and the exhibits, financial statements and schedules, as
finally amended and revised, have been delivered to you. The Company has
prepared in the same manner, and has delivered to you, and has filed with the
Commission, a further amendment thereto, including the form of final prospectus
and the Registration Statement, as so amended, has become effective.
The term "Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement became effective
and, in the event any post-effective amendment thereto becomes effective prior
to the Closing Time (as hereinafter defined), shall also mean such registration
statement as so amended. The term "Preliminary Prospectus" as used in this
Agreement shall mean any preliminary prospectus referred to in the preceding
paragraph. The term "Prospectus" as used in this Agreement shall mean the
prospectus relating to the Shares in the form in which it is first filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations or, if no
filing pursuant to Rule 424(b) of the 1933 Act Regulations is required, shall
mean the form of final prospectus included in the Registration Statement at the
time such Registration Statement became effective. For purposes of this
Agreement, all references to the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement to the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its
Electronic Data Gathering Analysis and Retrieval system ("EDGAR").
(b) No order preventing or suspending the use of any Preliminary Prospectus
has been issued by the Commission, and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, threatened by the Commission or
the state securities or blue sky authority of any jurisdiction, and each
Preliminary Prospectus and any amendment or supplement thereto, 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 any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by Morgan Keegan expressly for use in the Registration
Statement, any Preliminary Prospectus or the Prospectus.
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(c) When the Registration Statement became effective, when the Prospectus
is first filed pursuant to Rule 424(b) of the 1933 Act Regulations, when any
amendment to the Registration Statement becomes effective, and when any
supplement to the Prospectus is filed with the Commission and at the Closing
Time and Date of Delivery (as hereinafter defined), (i) the Registration
Statement, the Prospectus and any amendments thereof and supplements thereto
will conform in all material respects with the applicable requirements of the
1933 Act and the 1933 Act Regulations, and (ii) neither the Registration
Statement, the Prospectus, nor any amendment or supplement thereto will contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by Morgan Keegan
expressly for use in the Registration Statement, any Preliminary Prospectus or
the Prospectus. The Prospectus delivered to Morgan Keegan for use in connection
with this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) The Company has been duly organized and is validly existing as a
corporation under the laws of the state of Georgia, with all requisite power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and the Prospectus. The Company is
duly qualified to transact business and is in good standing in each of the
jurisdictions in which the ownership or leasing of its properties or the nature
or conduct of its business as described in the Registration Statement and the
Prospectus requires such qualification, except where the failure to do so would
not have a material adverse effect on the condition (financial or other),
business, properties, net worth or results of operations of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a "Material Adverse
Effect").
(e) All of the Company's subsidiaries are named on an exhibit to the
Registration Statement (each a "Subsidiary" and collectively the
"Subsidiaries"). Each of the Subsidiaries has been duly organized and is
validly existing and in good standing under the laws of the state of its
organization, with all requisite power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus. Each such entity is duly qualified to do business
and is in good standing in each other jurisdiction in which the ownership or
leasing of its properties or the nature or conduct of its business as described
in the Registration Statement and the Prospectus requires such qualification,
except where the failure to do so would not have a Material Adverse Effect.
(f) The Company has full right, power and authority to enter into this
Agreement, to issue, sell and deliver the Shares as provided herein and to
consummate the transactions contemplated herein. This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except to the extent that enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other laws of general applicability
relating to or
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affecting creditors' rights, or by general principles of equity whether
considered at law or at equity and except to the extent enforcement of the
indemnification provisions set forth in Section 6 of this Agreement may be
limited by federal or state securities laws or the public policy underlying such
laws (collectively, the "Remedies Exceptions").
(g) Each consent, approval, authorization, order, license, certificate,
permit, registration, designation or filing by or with any governmental agency
or body necessary for the valid authorization, issuance, sale and delivery of
the Shares, the execution, delivery and performance of this Agreement and the
consummation by the Company of the transactions contemplated hereby has been
made or obtained and is in full force and effect, except as may be required
under applicable state securities laws.
(h) Neither the issuance, sale and delivery by the Company of the Shares,
nor the execution, delivery and performance of this Agreement, nor the
consummation of the transactions contemplated hereby will conflict with or
result in a breach or violation of any of the terms and provisions of, or (with
or without the giving of notice or the passage of time or both) constitute a
default under, the organizational documents or bylaws of the Company or any of
the Subsidiaries, or under any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or to which the Company or any of the
Subsidiaries or any of their respective properties or other assets is subject;
or any applicable statute, judgment, decree, order, rule or regulation of any
court or governmental agency or body applicable to any of the foregoing or any
of their respective properties; or result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of the Company or
any of the Subsidiaries.
(i) The Shares to be issued and sold in the Standby Offering hereunder have
been validly authorized by the Company. When issued and delivered against
payment therefor as provided in this Agreement, the Shares will be duly and
validly issued, fully paid and nonassessable. Upon payment of the purchase
price and delivery of the Shares in accordance herewith, each purchaser of
Shares in the Standby Offering will receive good, valid and marketable title to
the Shares, free and clear of all liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting trusts, equities or
claims of any nature whatsoever, other than such encumbrances as may be created
by such purchaser. No preemptive rights of shareholders exist with respect to
any of the Shares which have not been satisfied or waived. No person or entity
holds a right to require or participate in the registration under the 1933 Act
of the Shares pursuant to the Registration Statement which has not been
satisfied or waived; and, except as set forth in the Prospectus, no person holds
a right to require registration under the 1933 Act of any Common Stock of the
Company at any other time which has not been satisfied or waived.
(j) The Company's authorized, issued and outstanding shares of Common Stock
are as disclosed in the Prospectus as of the date thereof, and have not changed
materially since that date. All of the issued and outstanding shares of Common
Stock of the Company have been duly authorized and validly issued, are fully
paid and nonassessable and conform to the description of the Company's Common
Stock contained in the Prospectus. No shares of Common Stock of the
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Company are reserved for any purpose except for Common Stock reserved for
issuance pursuant to the Company's incentive compensation plans, in each case as
described in the Prospectus, and, except for such reserved shares, no person has
any right or option to acquire any shares of Common Stock or any other ownership
interest in the Company.
(k) All of the issued shares of capital stock or other ownership interests
of each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and, except as otherwise disclosed in the
Prospectus, are owned directly, or indirectly through another Subsidiary, by the
Company (in the amounts described in the Prospectus), and, except for the
Shareholders Agreement, with respect to the shares of Community Loan Company,
and the Operating Agreement, with respect to the membership interests of Cash
Transactions, LLC, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting trusts,
equities or claims of any nature whatsoever. No shares of capital stock or
other ownership interests of any Subsidiary are reserved for any purpose, and
except with respect to the shares of Cash Transactions, LLC and Community Loan
Company, no person has any right or option to acquire any such shares or other
ownership interests. Other than the Subsidiaries and as described in the
Prospectus, the Company does not own, directly or indirectly, any capital stock
or other equity securities of any other corporation or any ownership interest in
any partnership, joint venture or other association.
(l) Except as disclosed in the Prospectus, there are no outstanding (i)
securities or obligations of the Company or any of the Subsidiaries convertible
into or exchangeable for any shares of beneficial interest of the Company or
capital stock or other ownership interests of any such Subsidiary, (ii)
warrants, rights or options to subscribe for or purchase from the Company any
shares of Common Stock or other ownership interest in the Company or from any
such Subsidiary any such capital stock or other ownership interests or any such
convertible or exchangeable securities or obligations, or (iii) obligations of
the Company to issue any shares of Common Stock (except pursuant to employment
agreements with Ronnie Austin and Pat Higham) or of any such Subsidiary to issue
any shares of capital stock or other ownership interests, any such convertible
or exchangeable securities or obligation, or any such warrants, rights or
options. None of the outstanding shares of Common Stock or other securities of
the Company or any Subsidiary were issued in violation of the 1933 Act, or any
other federal, state, local, municipal, foreign, international, multinational,
or other administrative order, constitution, law, ordinance, principle of common
law, regulation, statute, or treaty (each, a "Legal Requirement").
(m) The financial statements of the Company and its consolidated
Subsidiaries included in the Registration Statement and Prospectus present
fairly the financial position of the Company and its consolidated Subsidiaries
as of the dates indicated and the results of operations and cash flows for the
Company and its consolidated Subsidiaries for the periods specified, all in
conformity with generally accepted accounting principles applied on a consistent
basis. The financial statements and schedules included in the Registration
Statement and the amounts in the Prospectus under the captions "Prospectus
Summary Selected Consolidated Financial Data" and "Selected Consolidated
Financial Data" fairly present the information shown therein and have been
compiled on a basis consistent with the financial statements included in the
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Registration Statement and the Prospectus. No other financial statements or
schedules of the Company and its consolidated Subsidiaries are required to be
included in the Registration Statement or Prospectus other than those that are
included or incorporated by reference therein. Except as reflected or disclosed
in the financial statements included in the Registration Statement and the
Prospectus, or otherwise set forth in the Prospectus, neither the Company nor
any of the Subsidiaries are subject to any material indebtedness, obligation or
liability, contingent or otherwise.
(n) Porter Keadle Moore LLP, who have examined and are reporting upon the
audited financial statements and schedules included in the Registration
Statement, are, and were during the periods covered by their reports included in
the Registration Statement and the Prospectus, independent public accountants
within the meaning of the 1933 Act and the rules and regulations of the
Commission thereunder.
(o) None of the Company or the Subsidiaries has sustained, since December
31, 1997, any material loss or interference with its business from fire,
explosion, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or arbitrators' or court or governmental
action, order or decree; and, since the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except as
otherwise stated in the Registration Statement and Prospectus, there has not
been (i) any material change in the shares of Common Stock, other equity
securities, long-term debt, obligations under capital leases or short-term
borrowings of the Company or the Subsidiaries, (ii) any repurchase of shares of
Common Stock or other equity securities of the Company by the Company (other
than the surrender of 2000 shares upon exercise of a stock option) or any
declaration or payment of any dividend or distribution of any kind on its shares
of capital stock, or (iii) any material adverse change, or any development which
could reasonably be expected to have a Material Adverse Effect.
(p) Neither the Company nor any of the Subsidiaries is in violation of its
respective organizational documents or bylaws, and no default exists, and no
event has occurred, nor state of facts exists, which, with notice or after the
lapse of time to cure or both, would constitute a default in the due performance
and observance of any obligation, agreement, term, covenant, consideration or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
note, lease or other agreement or instrument to which any such entity is a party
or to which any such entity or any of its properties is subject which could
reasonably be expected to have a Material Adverse Effect. None of the Company
or the Subsidiaries is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as may be properly
disclosed in the Prospectus or such as individually or in the aggregate do not
now have and will not in the future have a Material Adverse Effect.
(q) There is not pending or, to the knowledge of the Company, threatened
any action, suit, proceeding, inquiry or investigation against the Company, any
of the Subsidiaries or any of their respective officers or directors or to which
the properties, assets or rights of any such entity may be subject, before or
brought by any court or governmental agency or body or board of arbitrators that
is required to be described in the Registration Statement or the Prospectus but
is
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not described as required or that, considered in the aggregate, is material to
the business, prospects, properties, assets, results of operations or condition
(financial or other) of the Company or the Subsidiaries.
(r) The descriptions contained or incorporated by reference in the
Registration Statement and the Prospectus of the contracts, leases and other
legal documents therein described present fairly the information required to be
shown, and there are no contracts, leases, or other documents of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which are not described or
filed as required.
(s) No labor dispute with the employees of the Company or any Subsidiary
exists or, to the knowledge of the Company, is imminent.
(t) The Company and each of the Subsidiaries owns, possesses or has
obtained all material permits, licenses, franchises, certificates, consents,
orders, approvals and other authorizations of governmental or regulatory
authorities or other entities as are necessary to own or lease, as the case may
be, and to operate its properties and to carry on its business as presently
conducted, or as contemplated in the Prospectus to be conducted, and neither the
Company nor any Subsidiary has received any notice of proceedings relating to
revocation or modification of any such licenses, permits, franchises,
certificates, consents, orders, approvals or authorizations.
(u) The Company owns or possesses adequate license or other rights to use
all patents, trademarks, service marks, trade names, copyrights, software and
design licenses, trade secrets, manufacturing processes, other intangible
property rights and know-how (collectively "Intangibles") necessary to entitle
the Company to conduct its business as described in the Prospectus, and the
Company has not received notice of infringement of or conflict with (and knows
of no such infringement of or conflict with) asserted rights of others with
respect to any Intangibles which could have a Material Adverse Effect.
(v) Each of the Company's and the Subsidiaries' respective systems of
internal accounting controls taken as a whole is sufficient to meet the broad
objectives of internal accounting control insofar as those objectives pertain to
the prevention or detection of errors or irregularities in amounts that would be
material in relation to the Company's or the Subsidiaries' financial statements;
and none of the Company, the Subsidiaries, or any employee or agent thereof, has
made any payment of funds of the Company or the Subsidiaries, or received or
retained any funds and no funds of the Company or the Subsidiaries, have been
set aside to be used for any payment, in each case in violation of any law, rule
or regulation.
(w) Each of the Company and the Subsidiaries has filed on a timely basis
all necessary federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof and have paid all taxes shown as
due thereon; and no tax deficiency has been asserted against any such entity,
nor does any such entity know of any tax deficiency which is likely to be
asserted against any such entity which if determined adversely to any such
entity, could have a
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Material Adverse Effect. All material tax liabilities are adequately provided
for on the respective books of such entities.
(x) Each of the Company and the Subsidiaries maintain insurance (issued by
insurers of recognized financial responsibility) of the types and in the amounts
generally deemed adequate for their respective businesses and consistent with
insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering real and personal property
owned or leased and to be owned by the Company and its Subsidiaries against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect.
(y) Each of the Company, the Subsidiaries, and their officers, or directors
or affiliates has not taken and will not take, directly or indirectly, any
action designed to, or that might reasonably be expected to, cause or result in
or constitute the stabilization or manipulation of any security of the Company
or to facilitate the sale or resale of the Shares.
(z) The Company is not, will not become as a result of the transactions
contemplated hereby, or will not conduct its respective businesses in a manner
in which the Company would become, "an investment company," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
(aa) None of the Subsidiaries which is majority-owned by the Company
currently is prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such Subsidiary's capital
stock or other ownership interests, from repaying to the Company any loans or
advances to such Subsidiary from the Company or from transferring any of such
Subsidiary's property or assets to the Company or any of the other Subsidiaries,
except as disclosed in the Prospectus and except Community Loan Company because
of its insolvency.
Section 2. Sale and Delivery of the Shares in Standby Offering.
(a) On the basis of the representations and warranties herein contained,
and subject to the terms and conditions herein set forth, Morgan Keegan agrees
to use its commercially reasonable best efforts to identify and refer to the
Company persons interested in purchasing the Unsold Shares in the Standby
Offering, and the Company agrees to issue and sell to the investors thereof so
identified, whose subscriptions it accepts, the Unsold Shares, at a purchase
price of $17.00 per share.
(b) Payment of the purchase price for and delivery of certificates in
definitive form representing at least the minimum number of Shares (176,471) to
be sold in the Offer to Shareholders and the Standby Offering (the "Minimum
Shares") shall be made in accordance with the purchase agreements between the
Company and such investor at the offices of Rowe, Foltz & Martin, P.C., Five
Piedmont Center, Suite 750, Atlanta, Georgia 30305 or at such other place as
shall be agreed upon by the Company and you, at 10:00 a.m. on the sixth full
business day after the Company notifies Morgan Keegan that the Escrow Agent (as
defined in the
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Prospectus) has received subscriptions acceptable to the Company and payment in
full for the Minimum Shares, or at such other time not later than ten business
days after such date as shall be agreed upon by you and the Company (such date
and time of payment and delivery being herein called the "Closing Time"). After
the Closing Time, sales of Shares pursuant to any additional subscriptions
received in the Standby Offering may be consummated as such subscriptions are
accepted by the Company (each such sale constituting a "Subsequent Closing"
hereunder), provided that the Company shall provide Morgan Keegan with a weekly
report of any such Subsequent Closing within five (5) business days after the
end of each calendar week following the Closing accompanied by payment in full
of any placement agent's commissions due hereunder with respect to such
Subsequent Closings.
Section 3. Certain Covenants of the Company. The Company covenants and
agrees with Morgan Keegan as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective (if not yet effective at the date and time that
this Agreement executed and delivered by the parties hereto). The Company will
notify you immediately, and confirm the notice in writing (or provide you with a
copy of any correspondence from the Commission), (i) when the Registration
Statement, or any post-effective amendment to the Registration Statement, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission to amend the Registration
Statement or amend or supplement the Prospectus or for additional information,
and (iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of the
institution or threatening of any proceeding for any such purposes. The Company
will use every reasonable effort to prevent the issuance of any such stop order
or of any order preventing or suspending such use and, if any such order is
issued, to obtain the withdrawal thereof at the earliest possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement, or any amendment or supplement (i) to the Prospectus, if
the Company has not elected to rely upon Rule 430A, or (ii) if the Company has
elected to rely upon Rule 430A, to either the Prospectus included in the
Registration Statement at the time it becomes effective or to the Prospectus
filed in accordance with Rule 424(b), if you or counsel for Morgan Keegan shall
reasonably object to such amendment or supplement.
(c) The Company has furnished or will furnish to you, at its expense, as
soon as available, three copies of the Registration Statement as originally
filed and of all amendments thereto, whether filed before or after the
Registration Statement becomes effective, copies of all exhibits and documents
filed therewith and signed copies of all consents and certificates of experts,
as you may reasonably request, and has furnished or will furnish to Morgan
Keegan one conformed copy of the Registration Statement as originally filed and
of each amendment thereto. The copies of the Registration Statement and each
amendment thereto furnished to you will be
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identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) The Company will deliver to Morgan Keegan, at the Company's expense,
from time to time, as many copies of each Preliminary Prospectus as Morgan
Keegan may reasonably request, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will deliver to
Morgan Keegan, at the Company's expense, as soon as the Registration Statement
shall have become effective and thereafter from time to time as requested during
the period when the Prospectus is required to be delivered under the 1933 Act,
such number of copies of the Prospectus (as supplemented or amended) as Morgan
Keegan may reasonably request. The Company will comply to the best of its
ability with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Shares as contemplated in this Agreement
and in the Prospectus. If the delivery of a prospectus is required at any time
prior to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at such time any
events shall have occurred as a result of which the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made when such Prospectus is
delivered not misleading, or if for any reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with the
1933 Act or the rules and regulations thereunder, the Company will notify you
and upon your request prepare and furnish without charge to you as many copies
as you may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus or an amendment or supplement to any such
incorporated document which will correct such statement or omission or effect
such compliance, and in case Morgan Keegan is required to deliver a prospectus
in connection with sales of any of the Shares at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the expense
of Morgan Keegan, the Company will prepare and deliver to Morgan Keegan as many
copies as you may reasonably request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the 1933 Act.
(e) The Company will use commercially reasonable efforts to qualify the
Shares for offering and sale under the securities laws of Georgia and Florida
and to maintain such qualifications in effect for as long as may be necessary to
complete the distribution of the Shares. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which the
Shares have been qualified as above provided.
(f) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 45 days after the end of
the first fiscal quarter, beginning after the first anniversary of the
"effective date of the Registration Statement" (as defined in Rule 158(c) of the
1933 Act Regulations), an earnings statement (in reasonable detail but which
need not be audited) complying with the provisions of Section 11(a) of the 1933
Act and Rule 158 thereunder and covering a period of at least 12 months
beginning after the effective date of the Registration Statement.
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(g) The Company will use the net proceeds received by it from the sale of
the Shares substantially in the manner specified in the Prospectus under the
caption "Use of Proceeds."
(h) The Company will furnish to its securityholders, as soon as practicable
after the end of each fiscal year, annual reports (including financial
statements audited by independent public accountants). With respect to any
fiscal period ending on or before December 31, 1999, the Company will furnish to
you: (i) concurrently with furnishing any such reports to its securityholders,
statements of operations of the Company for each of the first three quarters in
the form furnished to the Company's securityholders; (ii) concurrently with
furnishing to its securityholders, a balance sheet of the Company as of the end
of such fiscal year, together with statements of operations, of cash flows and
of securityholders' equity of the Company for such fiscal year, accompanied by a
copy of the certificate or report thereon of independent public accountants;
(iii) as soon as they are available, copies of all reports (financial or
otherwise) mailed to securityholders; (iv) as soon as they are available, copies
of all reports and financial statements furnished to or filed with the
Commission, any securities exchange or the National Association of Securities
Dealers, Inc. (the "NASD"); (v) every material press release in respect of the
Company or its affairs which is released by the Company; and (vi) any additional
information of a public nature concerning the Company or its business that you
may reasonably request. During such period, the foregoing financial statements
shall be on a consolidated basis to the extent that the accounts of the Company
are consolidated with any subsidiaries, and shall be accompanied by similar
financial statements for any significant subsidiary that is not so consolidated.
(i) During the period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, the Company will
not, without the prior written consent of Morgan Keegan, offer, pledge, issue,
sell, contract to sell, grant any option for the sale of, or otherwise dispose
of, or announce any offer, pledge, sale, grant of any option to purchase or
other disposition, directly or indirectly, any Common Shares or securities
convertible into, exercisable or exchangeable for, Common Shares, except as
provided in Section 2 of this Agreement and other than pursuant to the Company's
stock option plans ("Option Plans").
(j) The Company will maintain a transfer agent and, if necessary under the
jurisdiction of organization of the Company, a registrar (which may be the same
entity as the transfer agent) for its Common Shares.
(k) The Company is familiar with the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder, and has in the past conducted
its affairs, and will in the future conduct its affairs, in such a manner so as
to ensure that the Company was not and will not be an "investment company" or an
entity "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(l) During the period that Morgan Keegan is required to deliver the
Prospectus to investors pursuant to this Offering, the Company will not, and
will use commercially reasonable efforts to cause its officers and affiliates
not to, (i) take, directly or indirectly, any action designed to stabilize or
manipulate the price of any security of the Company, or which may cause or
result
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in, or which might in the future reasonably be expected to cause or result in,
the stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of any of the Shares, (ii) sell, bid for, or
pay anyone (other than Morgan Keegan) any compensation for soliciting purchases
of the Shares or (iii) pay or agree to pay to any person (other than Morgan
Keegan) any compensation for soliciting any order to purchase any other
securities of the Company.
(m) If at any time during the 60-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Common Shares has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus) and after written
notice from you advising the Company to the effect set forth above, the Company
agrees to forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably satisfactory
to you, responding to or commenting on such rumor, publication or event.
(n) The Company will timely and accurately report the use of proceeds
received by it from the sale of the Shares in accordance with Rule 463 of the
Commission under the 1933 Act or any successor provision.
Section 4. Payment of Expenses. The Company will pay and bear all costs,
fees and expenses incident to the performance of its obligations under this
Agreement (including fees and expenses of counsel for Morgan Keegan, such fees
of counsel not to exceed $17,500, except as specifically set forth below),
including (a) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits), as originally filed and as
amended, the Preliminary Prospectuses, the Prospectus and any amendments or
supplements thereto, and the cost of furnishing copies thereof to Morgan Keegan,
(b) the preparation, printing and distribution of this Agreement, the
certificates representing the Shares, the Blue Sky Memoranda and any instruments
relating to any of the foregoing, (c) the issuance and delivery of the Shares to
the investors, including any transfer taxes payable upon the sale of the Shares
to the investors (other than transfer taxes on resales by the investors), (d)
the fees and disbursements of the Company's counsel and accountants, (e) the
qualification of the Shares under the applicable securities laws in accordance
with the terms of this Agreement, including filing fees and fees and
disbursements of counsel for Morgan Keegan in connection therewith and in
connection with the Blue Sky Memoranda (which fees of counsel shall not exceed
$5,000), (f) filing fees relating to the review of the offering by the NASD, (g)
the transfer agent's and registrar's fees and all miscellaneous expenses
referred to in Part II of the Registration Statement, (h) costs related to
travel and lodging incurred by the Company and its representatives relating to
meetings with and presentations to prospective purchasers of the Shares
reasonably determined by Morgan Keegan to be necessary or desirable to effect
the sale of the Shares in the Standby Offering, and (i) all other costs and
expenses incident to the performance of the Company's obligations hereunder that
are not otherwise specifically provided for in this section. The Company, upon
your request, will provide funds in advance for filing fees in connection with
"blue sky" qualifications and NASD review.
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Section 5. Conditions of Morgan Keegan's Obligations. The obligations of
Morgan Keegan to exercise its commercially reasonable best efforts to place the
Unsold Shares are subject to the accuracy of the representations and warranties
of the Company contained herein at all times after the date hereof up to and
including the Closing Time and the time of each Subsequent Closing and to the
accuracy of the representations and warranties of the Company contained in
certificates of any officer of the Company delivered pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder, and to
the following further conditions:
(a) The Registration Statement shall have become effective not later than
5:30 p.m. on the date of this Agreement or, with your consent, at a later time
and date not later, however, than 5:30 p.m. on the first business day following
the date hereof, or at such later time or on such later date as you may agree to
in writing; and at the Closing Time no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your knowledge or the knowledge of the Company, shall be contemplated by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the satisfaction of counsel for
Morgan Keegan. If the Company has elected to rely upon Rule 430A, a Prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) At the Closing Time, you shall have received a favorable opinion of
Rowe, Foltz & Martin, P.C. counsel for the Company, dated as of the Closing
Time, in form and substance reasonably satisfactory to counsel for Morgan
Keegan, to the effect that:
(i) The Company has been duly organized and is validly existing as a
corporation under the laws of the State of Georgia. The Company has the
power and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement and the Prospectus.
The Company is qualified to transact business and is in good standing in
each of the jurisdictions in which the ownership or leasing of the
Company's properties or the nature or conduct of its business requires such
qualification, except where the failure to do so would not have a Material
Adverse Effect.
(ii) Each of the Subsidiaries has been duly organized and is validly
existing and in good standing as a corporation under the laws of the state
of its organization. Each such entity has all requisite power and
authority to own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus. Each such
entity (other than Cash Transactions LLC) is duly qualified to do business
and is in good standing in each other jurisdiction in which the ownership
or leasing of its properties or the nature or conduct of its business
requires such qualification, except where the failure to do so would not
have a Material Adverse Effect.
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(iii) The Company has the power and authority to enter into this
Agreement, to issue, sell and deliver the Shares as provided herein and to
consummate the transactions contemplated herein. This Agreement has been
duly authorized, executed and delivered by the Company. Assuming due
authorization, execution and delivery by Morgan Keegan, this Agreement
constitutes a valid and binding agreement of the Company, enforceable in
accordance with its terms, except to the extent enforceability may be
limited by the Remedies Exceptions.
(iv) Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid authorization,
issuance, sale and delivery of the Shares, the execution, delivery and
performance of this Agreement and the consummation by the Company of the
transactions contemplated hereby has been made or obtained and is in full
force and effect, except such as may be necessary under state securities
laws or required by the NASD in connection with the offer and sale of the
Shares in the Offer to Shareholders and the Standby Offering, as to which
such counsel need express no opinion.
(v) Neither the issuance, sale and delivery by the Company of the
Shares, nor the execution, delivery and performance of this Agreement nor
the consummation of the transactions contemplated hereby will conflict with
or result in a breach or violation of any of the terms and provisions of,
or (with or the giving notice or the passage of time or both) constitute a
default under, the organizational documents or bylaws of Company or the
Subsidiaries or under any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument listed on Schedule
1 hereto which the Company or any of the Subsidiaries is a party or to
which the Company or any of the Subsidiaries or any of their respective
properties or other assets is subject; or, to such counsel's knowledge, any
applicable statute judgment, decree, order, rule or regulation of any court
or governmental agency or body; or to such counsel's knowledge, result in
the creation or imposition of any lien, charge, claim or encumbrance upon
any property or asset of the Company or any of the Subsidiaries.
(vi) The Shares conform in all material respects as to legal matters
to the description thereof contained in the Registration Statement and the
Prospectus under the heading "Description of Common Stock."
(vii) The Shares to be issued and sold hereunder have been validly
authorized by the Company. When issued and delivered against payment
therefor as provided in this Agreement, such shares will be validly issued,
fully paid and nonassessable. Upon payment of the purchase price and
delivery of the Shares in accordance herewith, the purchasers of the Shares
offered hereunder will receive valid legal title to the Shares, free and
clear of all liens, security interests, pledges, charges, encumbrances,
defects, shareholders' agreements, voting trusts, equities or claims of any
nature whatsoever, other than those created by such purchasers. To such
counsel's knowledge, no preemptive rights of shareholders exist with
respect to any of the Shares which have not been satisfied or waived. To
such counsel's knowledge, no person or entity holds a right to
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require or participate in the registration under the 1933 Act of the Stock
pursuant to the Registration Statement which has not been satisfied or
waived; and, except as set forth in the Prospectus, to such counsel's
knowledge no person holds a right to require registration under the 1933
Act of any Common Stock of the Company at any other time which has not been
satisfied or waived. The form of certificates evidencing the Shares
complies with all applicable requirements of Georgia law.
(viii) The Company has an authorized capital stock as set forth in
the Prospectus under the caption "Capitalization." All of the issued shares
of capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. None of the issued shares of
capital stock of the Company has been issued in violation of any preemptive
rights of shareholders under the Company's charter or Georgia Law or, to
the knowledge of such counsel, otherwise.
(ix) All of the issued shares of capital stock or other ownership
interests of each of the Subsidiaries have been duly authorized and validly
issued, are to such counsel's knowledge fully paid and nonassessable,
except as otherwise disclosed in the Prospectus, and are owned directly,
or indirectly through another Subsidiary, by the Company (in the amounts
described in the Prospectus), and, except for the Shareholders Agreement,
with respect to the shares of Community Loan Company, and the Operating
Agreement, with respect to the membership interests of Cash Transactions,
LLC, free and clear of all liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting trusts, equities or
claims of any nature whatsoever. Other than the Subsidiaries and as
described in the Prospectus, to such counsel's knowledge, the Company does
not own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association.
(x) Except as disclosed in the Prospectus, to such counsel's
knowledge, there are no outstanding (i) securities or obligations of the
Company or any of the Subsidiaries convertible into or exchangeable for any
shares of capital stock of the Company or capital stock or other ownership
interests of any such Subsidiary, (ii) warrants, rights or options to
subscribe for or purchase from the Company any shares of capital stock or
from any such Subsidiary any such capital stock or other ownership
interests or any such convertible or exchangeable securities or
obligations, or (iii) obligations of the Company to issue any shares of
capital stock of the Company (except pursuant to employment agreements with
Ronnie Austin and Pat Higham) or of any such Subsidiary to issue any shares
of capital stock or other ownership interests, any such convertible or
exchangeable securities or obligation, or any such warrants, rights.
(xi) To such counsel's knowledge, there is not pending or threatened
any action, suit, proceeding, inquiry or investigation against the Company,
the Subsidiaries or any of their respective officers or directors or to
which the properties, assets or rights of any such entity are subject,
before or brought by any court or governmental agency or body or board of
arbitrators, that is required be described in the Registration Statement or
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the Prospectus but is not described as required that, considered in the
aggregate, is material to the business, prospects, properties, assets,
results of operations or condition (financial or other) of the Company or
the Subsidiaries.
(xii) The descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents therein
described present fairly the information required to be shown and there are
no contracts, leases or other documents known to such counsel of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement which
are not described or filed as required.
(xiii) The Registration Statement has become effective under the 1933
Act and, to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or is pending or
contemplated under the 1933 Act. Other than financial statements and other
financial and operating data and schedules contained therein, as to which
counsel need express no opinion, the Registration Statement, all
Preliminary Prospectuses, the Prospectus and any amendment or supplement
thereto, appear on their face to conform as to form in all material
respects with requirements of the 1933 Act and the rules and regulations
thereunder.
(xiv) The Company is not, or solely as a result of the consummation
of the transactions contemplated hereby will not become, an "investment
company," or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended.
(xv) The descriptions in the Prospectus of statutes, regulations,
legal or governmental proceedings are accurate and present fairly a summary
of the information required to be shown under the 1933 Act and the 1933 Act
Regulations.
(xvi) Except as disclosed in the Prospectus, none of the Subsidiaries
which is majority-owned by the Company currently is prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock or other ownership
interests, from repaying to the Company any loans or advances to such
Subsidiary from the Company or from transferring any of such Subsidiary's
property or assets to the Company or any of the other Subsidiaries.
Such counsel also shall state that they have no reason to believe that the
Registration Statement or any further amendment thereto made prior to the
Closing Time or on its effective date and as of the Closing Time or the
contained or contains any untrue statement of a material fact or omitted or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, or any
amendment or supplement thereto made prior to the Closing Time, as of its issue
date and as of the Closing Time contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances
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under which they were made, not misleading (provided that such counsel need
express no belief regarding the financial statements and related schedules and
other financial data contained in the Registration Statement, any amendment
thereto, or the Prospectus, or any amendment or supplement thereto).
In rendering the opinions set forth above, such counsel may rely on the
following:
(A) as to matters involving the application of laws other than the
laws of the United States and jurisdictions in which they are admitted, to
the extent such counsel deems proper and to the extent specified in such
opinion, upon an opinion or opinions (in form and substance reasonably
satisfactory to Morgan Keegan's counsel) of other counsel familiar with the
applicable laws, and
(B) as to matters of fact and as to matters set forth in the second
sentence of clause (viii) above, to the extent they deem proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officers or departments of various
jurisdictions, having custody of documents respecting the existence or good
standing of the Company, provided that copies of all such opinions,
statements or certificates shall be delivered to Morgan Keegan's counsel.
The opinion of counsel for the Company shall state that the opinion of any
other counsel, or certificate or written statement, on which such counsel
is relying is in form satisfactory to such counsel and that you and they
are justified in relying thereon.
(c) At the Closing Time and at the time of each Subsequent Closing, (i) the
Registration Statement and the Prospectus, as they may then be amended or
supplemented, shall contain all statements that are required to be stated
therein under the 1933 Act and the 1933 Act Regulations and in all material
respects shall conform to the requirements of the 1933 Act and the 1933 Act
Regulations; the Company shall have complied in all material respects with Rule
430A (if it shall have elected to rely thereon) and neither the Registration
Statement, nor the Prospectus, as they may then be amended or supplemented,
shall contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (ii) there shall not have been, since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the business, prospects, properties, assets, results of operations or
condition (financial or otherwise) of the Company, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the best of Company's knowledge, threatened
against the Company that would be required to be set forth in the Prospectus
other than as set forth therein and no proceedings shall be pending or, to the
best knowledge of the Company, threatened against the Company before or by any
federal, state or other commission, board or administrative agency wherein an
unfavorable decision, ruling or finding could materially adversely affect the
business, prospects, assets, results of operations or condition (financial or
otherwise) of the Company, other than as set forth in the Prospectus, (iv) the
Company shall have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Time, and (v)
the representations and warranties of the Company set forth in Section 1 shall
be accurate as though expressly made at and as of the
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Closing Time. At the Closing Time, you shall have received a certificate
executed by the President and Chief Financial Officer of the Company dated as of
the Closing Time, to such effect and with respect to the following additional
matters: (A) the Registration Statement has become effective under the 1933 Act
and no stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Prospectus has been issued, and no
proceedings for that purpose have been instituted or are pending or, to the best
of their knowledge, threatened under the 1933 Act; and (B) they have reviewed
the Registration Statement and the Prospectus and, when the Registration
Statement became effective and at all times subsequent thereto up to the
delivery of such certificate, the Registration Statement and the Prospectus and
any amendments or supplements thereto contained all statements and information
required to be included therein or necessary to make the statements therein not
misleading and neither the Registration Statement, nor the Prospectus nor any
amendment or supplement thereto included any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and, since the effective date of
the Registration Statement, there has occurred no event required to be set forth
in an amended or supplemented Prospectus that has not been so set forth.
(d) You shall have received from Porter Keadle Moore LLP letters dated,
respectively, the date hereof and the Closing Time in form and substance
satisfactory to you, stating that they are independent public accountants with
respect to the Company within the meaning of the Securities Act and the
applicable Rules and Regulations, and containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information of
the Company contained in the Registration Statement and the Prospectus. In the
event that the letters to be delivered referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of Morgan Keegan that Morgan Keegan shall have determined, after
discussions with officers of the Company responsible for financial and
accounting matters and with Porter Keadle Moore LLP, that such changes,
decreases or increases as are set forth in such letters do not reflect a
material adverse change in the total assets, stockholders' equity or long-term
debt of the Company as compared with the amounts shown in the latest balance
sheets of the Company included in the Prospectus, or a material adverse change
in revenues or net income of the Company, in each case as compared with the
corresponding period of the prior year.
(e) At the Closing Time, you shall have received from Porter Keadle Moore
LLP a letter, in form and substance satisfactory to you and dated as of the
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) above, except that the specified date
referred to shall be a date not more than five days prior to the Closing Time.
(f) At the Closing Time, counsel for Morgan Keegan shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Shares as contemplated in this Agreement and the matters
referred to in Section 5(c) and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements of the
Company, the
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performance of any of the covenants of the Company, or the fulfillment of any of
the conditions herein contained; and all proceedings taken by the Company at or
prior to the Closing Time in connection with the authorization, issuance and
sale of the Shares as contemplated in this Agreement shall be reasonably
satisfactory in form and substance to you and to counsel for Morgan Keegan. The
Company will furnish you with such number of conformed copies of such opinions,
certificates, letters and documents as you shall reasonably request.
(g) You should have received from each person who is an executive officer
or director of the Company an agreement to the effect that during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, such person will not, without the prior
written consent of Morgan Keegan, offer, pledge, issue, sell, contract to sell,
grant any option for the sale of, or otherwise dispose of, or announce any
offer, pledge, sale, grant of any option to purchase or other disposition,
directly or indirectly, any Common Shares or securities convertible into,
exercisable or exchangeable for, Common Shares.
(h) The NASD, upon review of the terms of the public offering of the
Shares, shall not have objected to such offering, such terms or Morgan Keegan's
participation in the same.
(i) Subsequent to the date hereof, there shall not have occurred any of the
following: (i) if there has occurred or accelerated any outbreak of hostilities
or other national or international calamity or crisis or change in economic or
political conditions the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable to market the
Shares or enforce contracts for the sale of the Shares, or (ii) if trading in
any securities of the Company has been suspended by the Commission, or
limitations on prices for trading (other than limitations on hours or numbers of
days of trading) have been fixed, or maximum ranges for prices for securities
have been required, by such exchange or the NASD or by order of the Commission
or any other governmental authority, or (iii) if there has been any downgrading
in the rating of any of the Company's debt securities or preferred stock by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the 1933 Act), or (iv) if a banking moratorium has been
declared by federal or Georgia authorities, or (v) any federal or state statute,
regulation, rule or order of any court or other governmental authority has been
enacted, published, decreed or otherwise promulgated which in your reasonable
opinion materially adversely affects or will materially adversely affect the
business or operations of the Company and its Subsidiaries, taken as a whole, or
(vi) any action has been taken by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in your reasonable
opinion has a material adverse effect on the securities markets in the United
States.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this Agreement
may be terminated by you on notice to the Company at any time at or prior to the
Closing Time or the time of any Subsequent Closing, and such termination shall
be without liability of any party to any other party, except as provided in
Section 4. Notwithstanding any such termination, the provisions of Section 6
shall remain in effect.
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Section 6. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless Morgan Keegan against any
losses, claims, damages or liabilities, joint or several, to which Morgan Keegan
may become subject under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise out of
or are based upon any breach of any warranty or covenant of the Company herein
contained, (ii) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in (A) any Preliminary Prospectus,
the Registration Statement, or the Prospectus, or any amendment or supplement
thereto, or (B) any application or other document, or any amendment or
supplement thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order to
qualify the Shares under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange (each an
"Application"), or (iii) arise out of or are based upon the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse Morgan Keegan for any legal or other
expenses reasonably incurred by Morgan Keegan in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, or the
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by Morgan Keegan
expressly for use therein. In addition to its other obligations under this
Section 6(a), the Company agrees that, as an interim measure during the pendency
of any such claim, action, investigation, inquiry or other proceeding arising
out of or based upon any statement or omission, or any alleged statement or
omission, described in this Section 6(a), it will reimburse Morgan Keegan on a
monthly basis for all reasonable legal and other expenses incurred in connection
with investigating or defending any such claim, action, investigation, inquiry
or other proceeding, notwithstanding the absence of a judicial determination as
to the propriety and enforceability of the Company's obligation to reimburse
Morgan Keegan for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. Any
such interim reimbursement payments that are not made to Morgan Keegan within 30
days of a request for reimbursement shall bear interest at the prime rate (or
reference rate or other commercial lending rate for borrowers of the highest
credit standing) published from time to time by The Wall Street Journal (the
"Prime Rate") from the date of such request. This indemnity agreement shall be
in addition to any liabilities that the Company may otherwise have. The Company
will not, without the prior written consent of Morgan Keegan, settle or
compromise or consent to the entry of any judgment in any pending or threatened
action or claim or related cause of action or portion of such cause of action in
respect of which indemnification may be sought hereunder (whether or not Morgan
Keegan is a party to such action or claim), unless such settlement, compromise
or consent includes an unconditional release of Morgan Keegan from all liability
arising out of such action or claim (or related cause of action or portion
thereof).
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The indemnity agreement in this Section 6(a) shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each person, if any,
who controls Morgan Keegan within the meaning of the 1933 Act to the same extent
as such agreement applies to Morgan Keegan.
(b) Morgan Keegan, will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any breach of any warranty or covenant by Morgan Keegan herein contained or
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, or the Prospectus, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or any such
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by Morgan Keegan expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
loss, claim, damage, liability or action. In addition to its other obligations
under this Section 6(b), Morgan Keegan agrees that, as an interim measure during
the pendency of any such claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 6(b), they will
reimburse the Company on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of their
obligation to reimburse the Company for such expenses and the possibility that
such payments might later be held to have been improper by a court of competent
jurisdiction. Any such interim reimbursement payments that are not made to the
Company within 30 days of a request for reimbursement shall bear interest at the
Prime Rate from the date of such request. This indemnity agreement shall be in
addition to any liabilities that Morgan Keegan may otherwise have. Morgan
Keegan will, without the prior written consent of the Company, settle or
compromise or consent to the entry of judgment in any pending or threatened
action or claim or related cause of action or portion of such cause of action in
respect of which indemnification may be sought hereunder (whether or not the
Company is a party to such action or claim), unless such settlement, compromise
or consent includes an unconditional release of the Company from all liability
arising out of such action or claim (or related cause of action or portion
thereof).
The indemnity agreement in this Section 6(b) shall extend upon the same
terms and conditions to, and shall inure to the benefit of, each officer and
director of the Company and each person, if any, who controls the Company within
the meaning of the 1933 Act to the same extent as such agreement applies to the
Company.
22
<PAGE>
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; no indemnification provided for in subsection (a) or (b)
shall be available to any party who shall fail to give notice as provided in
this subsection (c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by the
failure to give such notice, but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability that it may
have to any indemnified party otherwise than under Section 6. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation, except that if the indemnified party has been advised by
counsel in writing that there are one or more defenses available to the
indemnified party which are different from or additional to those available to
the indemnifying party, then the indemnified party shall have the right to
employ separate counsel and in that event the reasonable fees and expenses of
such separate counsel for the indemnified party shall be paid by the
indemnifying party; provided, however, that if the indemnifying party is the
Company, the Company shall be obligated to pay only the reasonable fees and
expenses of a single law firm (and any reasonably necessary local counsel)
employed by all of the indemnified parties. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
(d) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in Sections 6(a) and (b) hereof,
including the amounts of any requested reimbursement payments, the method of
determining such amounts and the basis on which such amounts shall be
apportioned among the indemnifying parties, shall be settled by arbitration
conducted pursuant to the Code of Arbitration Procedure of the National
Association of Securities Dealers, Inc. Any such arbitration must be commenced
by service of a written demand for arbitration or a written notice of intention
to arbitrate, therein electing the arbitration tribunal. In the event the party
demanding arbitration does not make such designation of an arbitration tribunal
in such demand or notice, then the party responding to said demand or notice is
authorized to do so. Any such arbitration will be limited to the operation of
the interim reimbursement provisions contained in Sections 6(a) and (b) hereof
and will not resolve the ultimate propriety or enforceability of the obligation
to indemnify for expenses that is created by the provisions of Sections 6(a) and
(b).
23
<PAGE>
(e) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 6 is for
any reason judicially determined (by the entry of a final judgment or decree by
a court of competent jurisdiction and the expiration of time to appeal or the
denial of the right of appeal) to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, on the one hand,
and Morgan Keegan on the other shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity incurred by the Company, and one or more of Morgan Keegan, as
incurred, in such proportions that (a) Morgan Keegan are responsible pro rata
for that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus bears to the public offering price
(before deducting expenses) appearing thereon, and (b) the Company is
responsible for the balance; provided, however, that no person guilty of
fraudulent misrepresentations (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; and provided, further, that if the allocation
provided above is not permitted by applicable law, the Company, on the one hand,
and Morgan Keegan, on the other, shall contribute to the aggregate losses in
such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, on the one hand,
and Morgan Keegan, on the other, in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. Relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company, on the one hand, or by Morgan Keegan, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and Morgan Keegan agree that it would not be just and equitable if contributions
pursuant to this Section 6(e) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 6(e). The amount paid or
payable by a party as a result of the losses, claims, damages or liabilities
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
such action or claim. Notwithstanding the provisions of this Section 6(e),
Morgan Keegan shall not be required to contribute any amount in excess of the
fees actually received by Morgan Keegan pursuant to this Agreement. For
purposes of this Section 6(e), each person, if any, who controls Morgan Keegan
within the meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as Morgan Keegan, and each executive officer of the Company, each
officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act shall have the same rights to contribution as the Company.
Section 7. Representations, Warranties and Agreements to Survive Delivery.
The representations, warranties, indemnities, agreements and other statements of
the Company or its officers set forth in or made pursuant to this Agreement will
remain operative and in full force and effect regardless of any investigation
made by or on behalf of Morgan Keegan or Morgan Keegan or controlling person,
and with respect to an Morgan Keegan or the Company will survive delivery of and
payment for the Shares or termination of this Agreement.
24
<PAGE>
Section 8. Termination.
(a) You may terminate this Agreement, by notice to the Company, at any time
at or prior to the Closing Time (i) in accordance with the last paragraph of
Section 5 of this Agreement, or (ii) if there has been since the respective
dates as of which information is given in the Registration Statement, any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, prospects, management, properties,
assets, results of operations or condition (financial or otherwise) of the
Company, whether or not arising in the ordinary course of business, or (iii) if
there has occurred or accelerated any material adverse change in the financial
markets in the United States, any outbreak of hostilities or escalation thereof
or other national or international calamity or crisis or change or development
involving a prospective change in national financial, economic or political
conditions, in each case the effect of which is such as to make it, in your
reasonable judgment, impracticable to market the Shares or enforce contracts for
the sale of the Shares, or (iv) if trading in any securities of the Company has
been suspended by the Commission or by the Nasdaq National Market System or if
trading generally on the New York Stock Exchange or the Nasdaq National Market
System or in the over-the-counter market has been suspended or materially
limited, or limitations on prices for trading (other than limitations on hours
or numbers of days of trading) have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by such system or the NASD or
by order of the Commission or any other governmental authority, or (v) if there
has been any downgrading in the rating of any of the Company's debt securities
or preferred shares of beneficial interest by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the 1933 Act), or (vi) if a banking moratorium has been declared by federal or
New York or Georgia authorities, or (vii) any federal or state statute,
regulation, rule or order of any court or other governmental authority has been
enacted, published, decreed or otherwise promulgated which in your reasonable
opinion materially adversely affects or will materially adversely affect the
business or operations of the Company, or (viii) any action has been taken by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your reasonable opinion has a material adverse effect on
the securities markets in the United States.
(b) If this Agreement is terminated pursuant to this Section 8, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Section 6 shall remain in effect.
Section 9. Information Furnished by Morgan Keegan. The Company
acknowledges that the statements set forth in footnote 1 on the cover page of
the Prospectus constitute the only information furnished by or on behalf of
Morgan Keegan expressly for use in the Registration Statement, any Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto as such
information is referred to in Section 6 hereof.
Section 10. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to Morgan Keegan shall be directed c/o Morgan Keegan & Company, Inc., 50
Front Street, Memphis, Tennessee 38103, Attention:
25
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Randolph C. Coley (with a copy sent in the same manner to Troutman Sanders LLP,
5200 NationsBank Plaza, 600 Peachtree Street, Atlanta, Georgia 30308-2216,
Attention: Thomas O. Powell, Esquire) and notices to the Company shall be
directed to it at 3844 Atlanta Highway, Hiram, Georgia 30141, Attention: Ronnie
L. Austin, President (with a copy sent in the same manner to Rowe, Foltz &
Martin, P.C., Five Piedmont Center, Suite 750, Atlanta, Georgia 30305, Paul R.
Shlanta, Esquire.
Section 11. Parties. This Agreement is made solely for the benefit of and
is binding upon Morgan Keegan and the Company and, to the extent provided in
Section 6, any person controlling the Company or Morgan Keegan, the officers and
directors of the Company, and their respective executors, administrators,
successors and assigns and subject to the provisions of Section 6, no other
person shall acquire or have any right under or by of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser, of
the Shares.
Section 12 Governing Law and Time. This Agreement shall be governed by
the laws of the State of Georgia. Specified time of the day refers to United
States Eastern Time. Time shall be of the essence of this Agreement.
Section 13. Counterparts. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
26
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, and upon the acceptance
hereof by Morgan Keegan this instrument will become a binding agreement among
the Company and Morgan Keegan in accordance with its terms.
Very truly yours,
COMMUNITY TRUST FINANCIAL
SERVICES CORPORATION
By: /s/ Ronnie L. Austin
-------------------------------------
Title: President
-------------------------------
The foregoing Agreement is hereby confirmed and accepted as of the date
first written above:
MORGAN KEEGAN & COMPANY, INC.
By: /s/ W.L.M. Knox, Jr.
-------------------------------------
(Authorized Representative)
Managing Director
<PAGE>
SCHEDULE 1
1. 1988 Stock Option Plan and related specimen copy of option.
2. 1993 Employee Stock Option Plan.
3. 1993 Directors Stock Option Plan.
4. Loan and Stock Pledge Agreement dated November 14, 1997, between the Company
and The Bankers Bank.
5. Employment Agreement dated January 1, 1998, between the Company and Ronnie
Austin.
6. Escrow Agreement between the Company and The Bankers Bank.
7. Form of Subscription Agreement.
<PAGE>
EXHIBIT 10.13
FIRST AMENDMENT TO ESCROW AGREEMENT
-----------------------------------
THIS FIRST AMENDMENT TO ESCROW AGREEMENT (this "First Amendment") is made
and entered into this 29th day of July, 1998, by and between Community Trust
Financial Services Corporation, a Georgia corporation (the "Company") and The
Bankers Bank (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Company and the Escrow Agent are parties to that certain
Escrow Agreement, dated May 11, 1998 (the "Escrow Agreement"); and
WHEREAS, the parties desire to amend the Escrow Agreement in order to
clarify the time period within which certain funds must be remitted by the
Company to the Escrow Agent;
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the covenants
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto, intending to
be legally bound, do hereby agree as follows:
1. General. Capitalized terms not otherwise defined herein shall have
-------
the respective meanings given to such terms in the Escrow Agreement. The
Escrow Agreement, as hereby amended, shall remain in full force and effect in
accordance with its terms as amended hereby. From and after the date of this
First Amendment, references to the Escrow Agreement shall be deemed to be
references to the Escrow Agreement as amended by this First Amendment.
2. Amendment to Escrow Agreement. Section 1 of the Escrow Agreement is
-----------------------------
hereby amended by adding thereto, the following:
Notwithstanding anything in this Escrow Agreement to the
contrary, all subscription funds that are attributable to sales
of Shares effected through Morgan Keegan & Company, Inc., in its
capacity as standby placement agent for the Offering, shall be
transmitted directly to the Escrow Agent by noon of the next
business day after receipt of such funds.
3. Governing Law. This First Amendment shall be governed by, and
-------------
construed in accordance with, the internal laws of the State of Georgia
applicable to agreements made and to be performed entirely within such state.
4. Counterparts. This First Amendment may be executed simultaneously
------------
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same agreement.
<PAGE>
IN WITNESS WHEREOF, the undersigned have set their hands and seals this
29th day of July, 1998.
COMPANY
COMMUNITY TRUST FINANCIAL SERVICES
CORPORATION
By: /s/ Ronnie Austin
------------------------
Ronnie Austin, President
ESCROW AGENT
THE BANKERS BANK
By: /s/ William R. Burkett
-------------------------------
William R. Burkett, Senior Vice
President
