<PAGE> 1
As filed with the Securities and Exchange Commission on November 5, 1997.
Registration No. 333-_____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
GULF COAST BANCORP, INC.
(Name of Small Business Issuer as specified in its charter)
FLORIDA 6712 65-0772718
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code) Identification
Number)
4055 TAMIAMI TRAIL, SUITE A-6
PORT CHARLOTTE, FLORIDA 33952
(941) 625-1744
(Address and telephone number of principal place of business)
---------
LEWIS S. ALBERT
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
GULF COAST BANCORP, INC.
4055 TAMIAMI TRAIL, SUITE A-6
PORT CHARLOTTE, FLORIDA 33952
(941) 625-1744
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copy to:
JOHN P. GREELEY, ESQUIRE CHESTER E. BACHELLER, ESQUIRE
SMITH, MACKINNON, GREELEY, HOLLAND & KNIGHT LLP
BOWDOIN & EDWARDS, P.A. 400 NORTH ASHLEY DRIVE
255 SOUTH ORANGE AVENUE SUITE 2300
ORLANDO, FLORIDA 32801 TAMPA, FLORIDA 33602-4300
(407) 843-7300 (813) 227-8500
FACSIMILE (407) 843-2448 FACSIMILE (813) 229-0134
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APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable
after this Registration Statement becomes effective.
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act Registration Statement number of the earlier
effective Registration Statement for the same offering. [ ]
---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
Registration Statement number of the earlier effective Registration Statement
for the same offering. [ ]
-------------
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE (1) PRICE (1) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 1,150,000 shares (2) $10.00 $11,500,000 $3,485
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(2) Includes an aggregate of 150,000 to cover overallotments, if any, pursuant
to the overallotment option granted to the Underwriters.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 5, 1997
PROSPECTUS
1,000,000 Shares
GULF COAST BANCORP, INC.
(a holding company for Gulf Coast Community Bank, National Association)
Common Stock
All of the shares of common stock, par value $.01 per share (the "Common
Stock"), offered hereby are being sold by Gulf Coast Bancorp, Inc. (the
"Company"), a Florida corporation and a proposed bank holding company organized
to own all of the common stock of Gulf Coast Community Bank, National
Association, a national bank association (in organization) to be located in Port
Charlotte, Florida (the "Bank"). Neither the Company nor the Bank has ever
conducted any business operations other than matters related to their initial
organization and the raising of capital. See "Business." There has been no
public trading market for the Common Stock. The Underwriter has advised the
Company that it anticipates making a market in the Common Stock following
completion of this offering. See "Underwriting" for a discussion of the factors
considered in determining the initial offering price. The Company expects that
quotations for the Common Stock will be reported on the OTC Bulletin Board under
the symbol "____." Unless otherwise waived by the Underwriter, shares of Common
Stock will be sold only in minimum lots of 250 shares ($2,500) and any one
investor (together with the investor's affiliates) will be permitted to purchase
a maximum of 50,000 shares ($500,000).
--------------
THE COMMON STOCK OFFERED BY THIS PROSPECTUS INVOLVES A HIGH DEGREE OF
RISK. INVESTORS SHOULD NOT INVEST ANY FUNDS IN THIS OFFERING UNLESS THEY CAN
AFFORD TO LOSE THEIR ENTIRE INVESTMENT. SEE "RISK FACTORS" ON PAGE _.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMIS-
SION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
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Underwriting Discounts and
Price to Public Commissions (1)(2) Proceeds to Company (3)
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<S> <C> <C> <C>
Per Share $ 10.00 $ 0.825 $ 9.175
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Total (4) $10,000,000 $825,000 $9,175,000
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</TABLE>
(1) The Underwriter has agreed with the Company that there will be no
Underwriting Discounts and Commissions for sales to certain investors
identified to the Underwriter by the Company. See "Underwriting."
(2) The Company has agreed to indemnify the Underwriter against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended.
(3) Before deducting estimated offering expenses payable by the Company of
$_________, which amount does not include certain organizational expenses
which were $99,855 as of August 31, 1997, and which will continue to be
incurred until the Bank commences operations.
(4) The Company has granted the Underwriter a 30-day option to purchase up to
150,000 additional shares of its Common Stock solely to cover
over-allotments, if any. If the Underwriter exercises such option in full,
the total Price to Public, Underwriters Discounts and Commissions and
Proceeds to the Company will be $11,500,000, $948,750 and $10,551,250,
respectively.
-----------------
The shares of Common Stock are offered by the Underwriter, subject to
prior sale, when, as and if delivered to and accepted by it, and subject to the
right of the Underwriter to withdraw, cancel or modify such offer and to reject
orders in whole or in part. It is expected that delivery of the certificates
representing shares of Common Stock will be made on or about _________ through
The Depository Trust Company or at the offices of Robert W. Baird & Co.
Incorporated, Milwaukee, Wisconsin.
ROBERT W. BAIRD & CO.
INCORPORATED
THE DATE OF THIS PROSPECTUS IS ______________________.
<PAGE> 3
Insert a map depicting the proposed Bank's Primary Market Area and site
of its main office together with a proximity map of the southern portion of
Florida highlighting the counties comprising its Extended Market Area.
---------------------------
THE SHARES OF COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR
DEPOSITS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, ANY
OTHER GOVERNMENTAL AGENCY OR OTHERWISE.
-------------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE COMMON STOCK OF
THE COMPANY, INCLUDING OVER-ALLOTMENT, STABILIZING TRANSACTIONS, SYNDICATE
SHORT-COVERING TRANSACTIONS, AND PENALTY BIDS. ANY OF THE FOREGOING
TRANSACTIONS, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME WITHOUT NOTICE. FOR
A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
--------------------------
AVAILABLE INFORMATION
The Company is not currently a reporting company pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), but will file
the reports required to be filed thereunder for the Company's 1997 fiscal year
and for any other periods for which the Exchange Act's requirements apply to the
Company. The Company, which will use a December 31 fiscal year end, intends to
furnish its stockholders with annual reports containing audited financial
information and, for the first three quarters of each fiscal year, quarterly
reports containing unaudited financial information.
ii
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PROSPECTUS SUMMARY
The following Summary is qualified in its entirety by the more detailed
information and financial statements appearing elsewhere in this Prospectus.
Unless the context clearly suggests otherwise, references in this Prospectus to
the Company include the Bank. Except as otherwise indicated, all information in
this Prospectus assumes no exercise of the Underwriter's over-allotment options.
THE COMPANY
The Company is a proposed bank holding company organized in August, 1997
under Florida law to own all of the common stock of the Bank. The Bank is
organized as a national banking association with depository accounts to be
insured by the Federal Deposit Insurance Corporation (the "FDIC") to the extent
permitted by law. The Bank intends to offer a full range of commercial and
consumer banking services primarily in the communities of Port Charlotte and
Punta Gorda, Charlotte County; and North Port, Sarasota County, Florida as well
as the surrounding extended market in Charlotte and Sarasota Counties. The
Company and the Bank have filed applications with all necessary bank regulatory
agencies, and assuming timely approval of the applications and the successful
completion of this offering, currently anticipate commencing business in the
first quarter of 1998. The Company currently maintains its offices at 4055
Tamiami Trail, Suite A-6, Port Charlotte, Florida 33952. The Company has entered
into a contract to purchase the real estate on which it will construct its main
facility. Upon completion of this facility, the Bank's address will be 1490
Tamiami Trail, Port Charlotte, Florida 33948. The Company's phone number is
(941) 625-1744.
STRATEGY
The objective of the Bank's organizers and management is to create a
customer-driven financial institution focused on providing high value to clients
by delivering products and services matched directly to their needs. Management
of the Company believes that such a bank can attract those clients who prefer to
conduct business with a locally-managed institution that demonstrates an active
interest in their business and personal affairs.
With an experienced staff expected to provide a superior level of
personalized service, management believes it will be able to generate
competitively priced loans and deposits. The Company anticipates that this
experienced staff will have access to current data processing systems selected
to deliver high-quality products and provide responsive service to clients. The
Company anticipates the Bank will enter into agreements with third-party service
providers to provide customers with convenient electronic access to their
accounts and other bank products through debit cards, voice response and home
banking. The use of third-party service providers is intended to allow the Bank
to utilize current technology while minimizing the costs of delivery. This "high
touch-high tech" manner of operations is expected by management to be appealing
to clients who have been receiving banking services in the depersonalized
environment of the Bank's larger competitors. See "Business - Business
Strategy."
MARKET AREA
The Bank anticipates that the primary market area ("PMA") for its banking
services will be the northern part of Charlotte County, Florida (including the
communities of Port Charlotte and Punta Gorda) and the southeastern part of
Sarasota County, Florida (including the community of North Port). The Bank
anticipates that its extended market area ("Extended Market Area") will
encompass all of Charlotte and Sarasota Counties. The Bank's main office will be
located in Port Charlotte, Florida, which is bordered by the communities of
Punta Gorda and North Port, all of which surround Charlotte Harbor on the
southwest Florida coastline. According to the U.S. Department of Commerce, the
Punta Gorda Metropolitan Statistical Area ("MSA"), of which Port Charlotte is a
part, is named the
1
<PAGE> 5
"#1 fastest growing metropolitan area in the United States" for the period from
1993 through 2005. Punta Gorda has also been ranked by Money Magazine as one of
the top five places to live in the United States in each of the last two years,
ranking second in 1996 and fourth in 1997, and in each case, number one in the
Southern United States. For the period from 1990 through 1996, the rate of
growth in each of Port Charlotte, Punta Gorda, and North Port exceeded 15%.
The area's business economy is represented by the construction, real
estate, retail trade, business and personal services, tourism, health care,
government, and agriculture industries. Major employers include Charlotte
Regional Medical Center, Fawcett Memorial Hospital and St. Joseph Hospital, in
health services; WalMart, K-Mart, Target, Home Depot, Toys-R-US and Sears, among
others in the retail sector; and, Charlotte County Schools, Charlotte County
Government, and the cities of Punta Gorda and North Port in the public sector.
COMPETITION
The banking industry in the Bank's market area has experienced significant
consolidation in recent years principally as the result of the liberalization of
interstate banking and branching laws. Many of the area's former community banks
have been acquired by large regional organizations headquartered outside of the
Bank's market area. This consolidation has resulted in the repricing of products
and services, the elimination of local boards of directors, and changes in
management and branch personnel and, in the perception of the Company's
organizers, a decline in the level of customer service. Because of the recent
changes in interstate banking regulations, this type of consolidation is
expected to continue.
Management believes that this competitive situation, when coupled with the
area's household stability and growing economic business base, creates a
favorable opportunity for a new commercial bank. Management's experience
indicates that a locally-managed community bank can attract customers by
providing highly professional personalized attention, responding in a timely
manner to product and service requests and exhibiting an active interest in
customers' business and personal financial needs. Assuming the closing of a
pending acquisition, the Company expects the Bank will be the only independent
commercial bank headquartered in the PMA.
BANK PREMISES
The Company has entered into a real estate purchase contract to acquire
approximately 1.1 acres of commercially zoned land on which it will construct
its main banking facility. The site is located at the intersection of U.S.
Highway 41 and Murdock Circle, a major intersection in Charlotte County. The
surrounding area is composed of mixed use commercial and industrial properties
(including the regional Town Center Mall and the Port Charlotte Industrial Park)
and within one-half mile of the center of the area's residential development.
The banking facility is anticipated to consist of approximately 7,800
square feet of office space and a community meeting room/ board room. The
facility would have four inside teller stations, four customer service platform
stations, three drive through lanes and a drive up ATM lane. It is anticipated
that the land acquisition cost will be approximately $875,000; building
construction costs and improvements will be approximately $984,000; and the
costs to equip and furnish the facility will be approximately $278,000. It is
anticipated that the Bank will begin occupancy of the facility during the fourth
quarter of 1998.
The Bank expects to commence its operations in the first quarter of 1998
in a leased temporary modular facility to be located on the Bank's permanent
site during the period of construction of the Bank's permanent facility. The
temporary facility will consist of approximately 1,960 square feet and will
include a drive-up window. The rental costs, including equipment, will be
approximately $4,500 per month. Site work necessary to accommodate the temporary
facility will be approximately $44,000. See "Business - Bank Premises."
2
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MANAGEMENT
The Company has assembled an experienced senior management team and board
of directors with a shared vision and commitment to the success of the Bank.
Certain of the officers and directors of the Company and the Bank have
significant banking experience and familiarity with the Bank's primary service
area, having previously worked with banks serving the Southwest Florida
community. Lewis S. Albert, Chairman and Chief Executive Officer of the Company
and the Bank, has 20 years of experience serving the banking industry both in
executive management capacities and as a service professional. Mr. Albert most
recently served as Senior Vice President & Chief Financial Officer of Southwest
Banks, Inc., a multi-bank holding company headquartered in Southwest Florida
which grew from approximately $150 million in assets to over $500 million in
assets during his four year tenure until its sale to F.N.B. Corporation in 1997.
Mr. Albert was previously a partner with Deloitte & Touche, an international
public accounting and consulting firm, during which time his emphasis was
providing audit, tax and consulting services to the financial institutions
industry; including assisting in the organization a number of community banks on
behalf of his clients. Todd H. Katz, Vice Chairman, President and General
Counsel of the Company and the Bank, recently served as General Counsel and
managed the Shareholder Relations Department at Southwest Banks, Inc.
Previously, he served as outside counsel to financial institutions through his
association with Miller, Hamilton, Snider & Odom, a regional banking law firm
based in Mobile, Alabama. The Company also intends to hire two additional
experienced individuals to serve as Senior Vice Presidents of the Bank. One such
individual will serve as the Bank's Senior Lending Officer and have experience
in that capacity within the Bank's market area. The second such individual will
serve as the Bank's Senior Operations Officer and have experience in that
capacity with community banks in the Southwest Florida area. The Company's
directors believe that the many years of experience and existing contacts of the
senior officers offer the Bank a substantial opportunity to attract new
relationships for the Bank.
The remaining directors are business people that have lived in the
Charlotte County area for many years or have otherwise had significant business
interests in the community and have developed a number of business and personal
relationships which they believe will add to the success of the Company and the
Bank. The Company's directors believe that their long-standing ties to the
community, coupled with their combined business and banking experience, provide
them with the unique perspective of the area's needs and the desire for a new
independent bank under local control. They further believe that the community
will react favorably to this new enterprise.
3
<PAGE> 7
THE OFFERING
Securities offered................ 1,000,000 shares of Common Stock
Minimum purchase.................. 250 shares ($2,500)
Maximum purchase.................. 50,000 shares ($500,000)
Common Stock to be
outstanding after this
offering........................ 1,000,000 shares
Use of proceeds by the
Company......................... The net proceeds to the Company
from this offering (assuming no
exercise of the over-allotment
option) are estimated to be
$_________. The Company will
contribute $7.5 million of the net
proceeds of this offering to the
Bank to capitalize the Bank by
purchasing all of the Bank's common
stock to be issued. The Bank will
use approximately $875,000 to
purchase real estate for its main
banking facility site,
approximately $984,000 for the
construction of its main office
including land improvements, and
approximately $278,000 to purchase
furniture, fixtures and equipment
and other necessary assets for the
Bank's operations. The organizers
of the Company have advanced
approximately $366,000 to the
Company to cover expenses of
organizing the Bank. Under the
terms of these advances, on or
about the closing of the offering
organizers will receive shares of
the Common Stock at the Price to
Public to repay such advances. The
Company's organizers also have
indicated their present intention
to purchase Common Stock in this
offering. It is currently
anticipated that the balance of the
net proceeds by the Bank will be
used to fund investments in loans
and securities and for the payment
of operating expenses. The
remaining net proceeds (plus any
net proceeds as a result of the
exercise of the Underwriter's
over-allotment option) will
initially be invested by the
Company in an overnight repurchase
agreement with the Bank secured by
U.S. Treasury and Agency issues and
otherwise held by the Company as
working capital for general
corporate purposes and to pay
operating expenses, as well as for
possible future capital
contributions to the Bank. See "Use
of Proceeds."
Risk factors....................... The purchase of the securities
offered hereby involves a high
degree of risk and should be
considered only by persons who can
afford to sustain the total loss of
their investment. See "Risk
Factors."
4
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SUMMARY FINANCIAL DATA
<TABLE>
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AUGUST 31, 1997
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ACTUAL AS ADJUSTED (1)
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BALANCE SHEET DATA:
<S> <C> <C>
Cash.......................................... $ 179,874 $
Total assets.................................. $ 224,910 $
Total liabilities............................. $ 323,765 $
Shareholders' equity (deficit)................ $ (98,855) $
</TABLE>
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(1) Adjusted to reflect the application of the estimated net proceeds from the
shares offered hereby. See "Use of Proceeds."
5
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RISK FACTORS
The Common Stock offered hereby is speculative, involves a high degree of
risk and should be considered only by persons who can afford the loss of their
entire investment. The following constitute some of the potential risks of an
investment in the Common Stock and should be carefully considered by prospective
investors prior to purchasing shares of Common Stock. The order of the following
is not intended to be indicative of the relative importance of any described
risk nor is the following intended to be inclusive of all risks of investment in
the Common Stock. Because the Company is only recently formed and the Bank will
only obtain the necessary regulatory approvals in the future but will not have
commenced banking operations as of the date hereof, prospective investors do not
have access to all of the information that, in assessing their proposed
investment, is available to the purchasers of securities of a financial
institution with a history of operations. The Company's profitability will
depend primarily upon the Bank's operations and there is no assurance that the
Bank will ever operate profitably.
LACK OF OPERATING HISTORY; SIGNIFICANT INITIAL LOSSES EXPECTED
Neither the Company nor the Bank has any operating history. The business
of the Company and the Bank is subject to the risks inherent in the
establishment of a new business enterprise. Because the Company is only recently
formed, the Company and the Bank have only recently applied for the necessary
regulatory approvals and the Bank has not commenced banking operations as of the
date hereof, prospective investors do not have access to all of the information
that, in assessing their proposed investment, is available to the purchasers of
securities of a financial institution with a history of operations. The
Company's profitability will depend primarily upon the Bank's operations and
there is no assurance that the Bank will ever operate profitably. As a result of
the substantial start-up expenditures that must be incurred by a new bank, the
Company can be expected to incur significant operating losses during its initial
years of operations.
FAILURE TO COMMENCE OPERATIONS
Although the Company and the Bank expect to commence operations in its
leased temporary modular facility in the first quarter of 1998, there can be no
assurance as to when, if at all, this will occur. As of August 31, 1997, the
Company's accumulated deficit was $99,855 ($_______ as of ____________), and the
Company will continue to incur pre-opening expenses until the Bank commences
operations. Any delay in commencing operations will increase pre-opening
expenses and postpone realization by the Bank of potential revenues and income.
Absent the commencement of profitable operations, the Company's accumulated
deficit will continue to increase (and book value per share decrease) as
operating expenses such as rent on the Bank's proposed premises, salaries and
other administrative expenses continue to be incurred. After the offering and
prior to the time the Bank receives final approvals from the OCC and the FDIC
to commence banking operations, the proceeds from this offering will be
segregated, but will be available for certain organizational and pre-opening
expenses of the Company and the Bank. Although certain proceeds from this
offering may be segregated, these proceeds may still be subject to claims of
creditors of the Bank or the Company (including the claims of organizers who
have advanced proceeds to the Company in connection with the organization of
the Company and the Bank). On a liquidation basis, the Company is unlikely to
recover its full investment in furniture, fixtures and equipment. As a result,
if a liquidation of the Company were to occur, investors in this offering would
likely realize substantially less than the $10 per share public offering price
and would suffer a significant loss.
6
<PAGE> 10
POSSIBLE LOSS OF A PORTION OF INVESTMENT
If the Company satisfies the offering conditions and issues the shares of
Common Stock, but final approval to commence banking operations is not granted
within 18 months after the receipt of preliminary approval from the Office of
the Comptroller of the Currency (the "OCC"), the Company will solicit
shareholder approval for its dissolution and liquidation in which event, the
Company will return to shareholders their investment, less all expenses incurred
by the Company, including the expenses of the offering, the organizational and
pre-opening expenses of the Company and the Bank and claims of creditors
(including the claims of organizers who have advanced proceeds to the Company in
connection with the organization of the Company and the Bank). In the event of
dissolution and liquidation following the issuance of shares of Common Stock, it
is possible that shareholders will receive only a portion of their investment
due to the foregoing expenses.
REGULATORY APPROVALS
Although the Company and the Bank have applied for all regulatory
approvals required to commence operations (and have received certain preliminary
approvals), no assurances can be given that such required final approvals will
be granted in a timely manner if at all. The closing of this offering is not
conditioned upon the Company and the Bank receiving final approval to commence
business; however the closing will not take place until the Company and the
Bank have received preliminary approval. Management believes that all such
regulatory approvals will be obtained after a reasonable period, subject to the
satisfaction of certain conditions. Such conditions may include, among other
things that: (i) beginning paid-in capital of the Bank be not less than $7.5
million; (ii) the Tier 1 capital-to-total-assets ratio of the Bank be not less
than 8.0% for the first three years of operations; and (iii) without the prior
approval of the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"), no debt will be incurred by the Company for five years from the
date the Company acquires 100% of the Bank stock. The Company proposes to
satisfy the Bank's capital requirements by using $7.5 million of the proceeds
from this offering to purchase all of the capital stock of the Bank. See "Use of
Proceeds." While the organizers currently anticipate receiving bank and bank
holding company approvals during the first quarter of 1998, no assurance can be
given that these approvals will be granted in a timely manner, if at all. If
such regulatory approvals are substantially delayed, the Company's accumulated
deficit will continue to increase. If such regulatory approvals are not
obtained, the Company would not be able to commence its banking activities and
would probably be liquidated and dissolved. Upon liquidation, investors would
likely realize a substantial loss on their investment. See " Failure to Commence
Operations."
COMPETITION
The Company and the Bank will face strong competition for deposits, loans
and other financial services from numerous Florida and out-of-state banks,
thrifts, credit unions and other financial institutions as well as other
entities which provide financial services. Some of the financial institutions
and financial services organizations with which the Bank will compete are not
subject to the same degree of regulation as the Bank. As of June, 1997,
approximately 24 branch bank offices, five thrift offices and one credit union
office were located within the PMA. See "Business General" and "Business -
Market Area". Many of these financial institutions aggressively compete for
business in the PMA. Most of these competitors have been in business for many
years, have established customer bases, are larger, have substantially higher
lending limits than the Bank and will be able to offer certain services,
including multiple branches and international banking services, that the Bank
can offer only through correspondents, if at all. In addition, most of these
entities have greater capital resources than the Bank, which, among other
things, may allow them to price their services at levels more favorable to the
customer and to provide larger credit facilities than could the Bank. See
"Business - Market Area" and "Business - Competition." Additionally, recently
enacted federal and Florida legislation regarding interstate branching and
banking may act to increase competition in the future from larger out-of-state
banks. See "Supervision and Regulation - Recent Regulatory Developments."
7
<PAGE> 11
NEED FOR CAPITAL
Although the Company does not currently anticipate the need for additional
capital in the next 12 months to commence its planned business activities,
additional capital beyond that which will be provided by this offering and any
amounts likely to be generated by the Bank's operations over the next four years
would probably be necessary before the Company could undertake any significant
acquisitions or other expansion of its operations. There can be no assurance
that any funds necessary to finance such acquisitions or expansion will be
available. Regulatory capital requirements and borrowing restrictions which will
apply to the Bank and the Company may have the effect of constraining future
growth. To the extent the Company relies upon the sale of additional equity
securities to finance future expansion, such sale could result in significant
dilution to the interests of investors purchasing shares in this offering.
GOVERNMENT REGULATION AND MONETARY POLICY
The Company and the Bank will be subject to extensive federal and state
government supervision and regulation. Existing federal and state banking laws
will subject the Bank to substantial limitations with respect to loans, purchase
of securities, payment of dividends and many other aspects of its banking
business. There can be no assurance that future legislation or government policy
will not adversely affect the banking industry or the operations of the Bank.
Federal economic and monetary policy may affect the Bank's ability to attract
deposits, make loans and achieve satisfactory interest spreads. See "Supervision
and Regulation."
DEPENDENCE ON MANAGEMENT
The Company and the Bank are, and for the foreseeable future will be,
dependent upon the services of Lewis S. Albert, the Chairman of the Board and
Chief Executive Officer of the Company and the Bank, and Todd H. Katz, Vice
Chairman, President and General Counsel of the Company and the Bank, as well as
other senior managers retained by the Company and the Bank. The loss of any of
these individuals could adversely affect the operations of the Company and the
Bank. The Company has entered into an employment agreements with Mr. Albert and
Mr. Katz, in an effort to assure the continued availability of their services to
the Bank and the Company, although these individuals are not precluded from
competing with the Bank upon termination of their employment with the Bank. In
light of the Company's dependence upon the banking expertise of its chief
executive officer and president, the Company has obtained a policy of key person
life insurance on both Mr. Albert and Mr. Katz in the amount of $1 million each
payable to the Company, although there is no assurance such amount will
adequately compensate the Company for the loss of service of either or both
individuals. See "Business - Employees" and "Management."
LENDING RISKS AND LENDING LIMITS
The risk of nonpayment of loans is inherent in commercial banking, and
such nonpayment, if it occurs, may have a material adverse effect on the
Company's earnings and overall financial condition as well as the value of the
Common Stock. Moreover, the Bank expects to focus on small-to-medium sized
businesses, which may result in a larger concentration by the Bank of loans to
such businesses. As a result, the Bank may assume greater lending risks than
banks which have a lesser concentration of such loans and tend to make loans to
larger companies. Management will attempt to minimize the Bank's credit exposure
by carefully monitoring the concentration of its loans within specific
industries and through prudent loan application and approval procedures, but
there can be no assurance that such monitoring and procedures will reduce such
lending risks.
Based upon capitalization of $7.5 million, the Bank will be subject to a
limit of $1,125,000 in loans that it may make to any one borrower. The Board of
Directors will establish an "in-house" limit that will be somewhat lower than
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<PAGE> 12
the Bank's legal lending limit. The Board may from time to time raise or lower
the "in-house" limit as it deems appropriate to comply with safe and sound
banking practices and respond to overall economic conditions. Accordingly, the
size of the loans which the Bank can offer to potential customers is less than
the size of loans that most of the Bank's competitors are able to offer.
Initially, this limit may adversely affect the ability of the Bank to seek
relationships with the area's larger businesses. The Bank expects to accommodate
loan volumes in excess of its lending limit through the sale of participations
in such loans to other banks. However, there can be no assurance that the Bank
will be successful in attracting or maintaining customers seeking larger loans
or that the Bank will be able to engage in the sale of participations in such
loans on terms favorable to the Bank.
IMPACT OF INTEREST RATES AND ECONOMIC CONDITIONS
The results of operations for financial institutions, including the Bank,
may be materially and adversely affected by changes in prevailing economic
conditions, including declines in real estate market values, rapid changes in
interest rates and the monetary and fiscal policies of the federal government.
See "Supervision and Regulation - General" and "Supervision and Regulation -
Recent Regulatory Developments." The Bank's profitability is in part a function
of the spread between the interest rates earned on investments and loans and the
interest rates paid on deposits and other interest-bearing liabilities. In the
early 1990s, many banking organizations experienced historically high interest
rate spreads. More recently, interest rate spreads have generally narrowed due
to changing market conditions and competitive pricing pressure, and there can be
no assurance that such factors will not continue to exert such pressure or that
such high interest rate spreads will return. Substantially all the Bank's loans
will be to businesses and individuals in the Southwest Florida area and any
decline in the economy of this area could have an adverse impact on the Bank.
Like most banking institutions, the Bank's net interest spread and margin will
be affected by general economic conditions and other factors that influence
market interest rates and the Bank's ability to respond to changes in such
rates. At any given time, the Bank's assets and liabilities will be such that
they are affected differently by a given change in interest rates. As a result,
an increase or decrease in rates, the length of loan terms or the mix of
adjustable and fixed rate loans in the Bank's portfolio could have a positive or
negative effect on the Bank's net income, capital and liquidity. There can be no
assurance that the positive trends or developments discussed in this Prospectus
will continue or that negative trends or developments will not have a material
adverse effect on the Bank.
NEED FOR TECHNOLOGICAL CHANGE
The banking industry is undergoing rapid technological changes with
frequent introductions of new technology-driven products and services. In
addition to better serving customers, the effective use of technology increases
efficiency and enables financial institutions to reduce costs. The Company's
future success will depend in part on its ability to address the needs of its
clients by using technology to provide products and services that will satisfy
client demands for convenience as well as to create additional efficiencies in
the Bank's operations. Many of the Bank's competitors have substantially greater
resources to invest in technological improvements. There can be no assurance
that the Bank will be able to effectively implement new technology-driven
products and services or be successful in marketing such products and services
to its clients. See "Business - Business Strategy."
ANTI-TAKEOVER PROVISIONS
Under the Federal Change in Bank Control Act (the "Control Act"), a notice
must be submitted to the Federal Reserve if any natural person or, generally, a
group of natural persons acting in concert seeks to acquire 10% or more of any
class of outstanding voting securities of a bank holding company, including the
Company, unless the Federal Reserve determines that the acquisition will not
result in a change of control of the Company. Under the Control Act, the Federal
Reserve reviews the acquisition to determine if it will result in a change of
control of the Company. Under the Control Act, the Federal Reserve has sixty
days within which to act on such notice, taking into
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<PAGE> 13
consideration certain factors, including the financial and managerial resources
of the acquirer, the convenience and needs of the community to be served by the
bank holding company and its subsidiary banks, and the antitrust effects of the
acquisition. Under the Bank Holding Company Act of 1956, as amended (the "BHC
Act"), a company generally is required to obtain prior approval of the Federal
Reserve before it may obtain control of a bank holding company. "Control" is
generally described as the beneficial ownership of 25% or more of all
outstanding voting securities of a bank holding company, but may be as low as 5%
under certain circumstances. See "Supervision and Regulation."
Florida law contains certain provisions which may have the effect of
deterring unsolicited attempts to acquire the Company. Further, the Company's
Articles of Incorporation divide the Board of Directors into three classes with
the term of office of one class expiring each year, and also authorize the Board
of Directors to issue shares of preferred stock, with such rights as the
directors may determine upon issuance. These provisions may have the effect of
delaying or preventing a change in control of the Company without action by the
shareholders. These provisions also could result in the Company being less
attractive to a potential acquiror or result in shareholders receiving less for
their shares than otherwise might be available in the event of a change in
control of the Company. See "Description of Capital Stock - Certain
Anti-Takeover, Indemnification and Limited Liability Provisions."
NO ASSURANCE OF DIVIDENDS
It is anticipated that no dividends will be paid on the Common Stock for
the immediately foreseeable future. It is likely that the Company will be
largely dependent upon dividends paid by the Bank for funds to pay dividends on
the Common Stock, if and when such dividends are declared. The Bank does not
anticipate paying dividends during at least the first three years of its
operations. No assurance can be given that future earnings of the Bank, and any
resulting dividends to the Company, will be sufficient to permit the legal
payment of dividends to Company stockholders at any time in the future. Even if
the Company may legally declare dividends, the amount and timing of such
dividends will be at the discretion of the Company's Board of Directors. The
Board may in its sole discretion decide not to declare dividends. For a more
detailed discussion of other regulatory limitations on the payment of cash
dividends by the Company. See "Dividend Policy."
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation and Bylaws provide for the
indemnification of its officers and directors and insulate its officers and
directors from liability for certain breaches of the duty of care. It is
possible that the indemnification obligations imposed under these provisions
could result in a charge against the Company's earnings and thereby affect the
availability of funds for payment of dividends to the Company's stockholders.
The Bank's bylaws will contain similar provisions. See "Description of Common
Stock - Anti-Takeover, Indemnification and Limited Liability Provisions."
DETERMINATION OF OFFERING PRICE
The initial public offering price of $10.00 per share was determined by
negotiations between the Company and Robert W. Baird & Co. Incorporated, the
underwriter of this offering (the "Underwriter"). This price is not based upon
earnings or any history of operations and should not be construed as indicative
of the present or anticipated future value of the Common Stock. See
"Underwriting."
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<PAGE> 14
CONTROL BY MANAGEMENT
Although the combined ownership and control over the Company's Common
Stock by the Company's officers and directors is likely to be less than 10%
after this offering, such individuals will be able to exert a significant
measure of control over the affairs and policies of the Company. Such control
could be used, for example, to help prevent an acquisition of the Company,
thereby precluding shareholders from possibly realizing any premium which may be
offered for the Company's Common Stock by a potential acquiror. See "Principal
Stockholders."
NO PRIOR PUBLIC MARKET; LIMITED TRADING MARKET EXPECTED
Prior to this offering, there has been no public trading market for the
Common Stock. The offering price of $10 per share has been determined by
negotiations between the Company and the Underwriter and may be greater than the
market price for the Common Stock following this offering. The Company expects
that the quotations for the Common Stock will be reported on the OTC Bulletin
Board under the symbol "____." The Underwriter has also advised the Company
that, upon completion of this offering, it presently intends to act as a market
maker in the Common Stock, subject to applicable laws and regulatory
requirements. Making a market in securities involves maintaining bid and ask
quotations and being able, as principal, to effect transactions in reasonable
quantities at those quoted prices, subject to various securities laws and other
regulatory requirements. The development of a public trading market depends,
however, upon the existence of willing buyers and sellers, the presence of which
is not within the control of the Company, the Bank or any market maker. Even
with a market maker, factors such as the limited size of this offering, the lack
of earnings history for the Company and the absence of a reasonable expectation
of dividends within the near future mean that there can be no assurance of the
development in the foreseeable future of an active and liquid market for the
Common Stock. Even if a market develops, there can be no assurance that a market
will continue, or that shareholders will be able to sell their shares at or
above the offering price of $10 per share. Furthermore, the Underwriter has no
obligation to make a market in the Common Stock and, if commenced, may cease
market making activities at any time. The potential size of a secondary market
for the Common Stock might, at least initially, be limited to some extent by the
requirement of a $2,500 minimum investment imposed in connection with this
offering. The minimum investment requirement may act to restrict the number of
shareholders and make subsequent trading of small numbers of shares less likely.
Purchasers of Common Stock should carefully consider the potentially illiquid
and long-term nature of their investment in the shares being offered hereby.
RECENT DEVELOPMENTS
Since August 31, 1997, the date of the Company's most recent audited
financial statements, the Company has continued to incur pre-opening expenses.
As of _____________, the Company's accumulated deficit was $_______. The
additional expenses incurred related principally to legal and professional fees
incurred in the regulatory application process and in connection with this
offering, salaries and supplies.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the 1,000,000 shares of
Common Stock offered hereby are estimated to be $___________ ($__________) if
the Underwriter's over-allotment option is exercised in full), after deduction
of the underwriting discounts and commissions and estimated offering expenses.
Such net proceeds have not been reduced by the amount of the Company's
organizational and other operating expenses which were $_______ as of
____________. The net proceeds of this offering will be segregated until the
Bank's receipt of final approvals from the OCC and the FDIC to commence banking
operations, but will be available for certain organizational and pre-opening
expenses of the Company and the Bank.
Approximately $7.5 million of the net proceeds of this offering will be
invested by the Company in shares of Common Stock of the Bank to provide the
Bank's initial capitalization. The Bank expects to use approximately
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<PAGE> 15
$2,137,000 of these funds to acquire, construct, furnish and equip the permanent
premises in which it is anticipated that the Bank will be located, and
approximately $132,000 to cover occupancy expenses and necessary furniture,
fixtures and equipment expense for the Bank's temporary offices during the
period of construction of its main facility. It is currently anticipated that
the remaining amount will be used by the Bank to fund investments in loans and
U.S. government and agency securities, federal funds sold and for payment of
operating expenses.
The balance of the net proceeds of this offering, after capitalizing the
Bank with $7.5 million, is estimated to be approximately $_________. A total of
approximately $366,000 has been advanced by the organizers to the Company to
cover expenses of organizing the Bank. Under the terms of these advances, the
organizers will receive repayment in full, on or about the closing of this
offering, in shares of Common Stock valued at the Price to Public. The Company's
organizers also have indicated their present intention to purchase shares of
Common Stock in this offering. See "Principal Stockholders." The remaining
amount of net proceeds (plus any net proceeds as a result of the exercise of the
Underwriter's over-allotment option) will be held by the Company as working
capital for general corporate purposes as well as for possible future capital
contributions to the Bank to support asset growth. The Company believes that the
net proceeds of the offering will satisfy the Company's cash requirements for at
least the first 12 month period following the opening of the Bank.
DIVIDEND POLICY
The Company initially expects that all Company and Bank earnings, if any,
will be retained to finance the growth of the Company and the Bank and that no
cash dividends will be paid for the foreseeable future. If and when dividends
are declared, the Company will probably be largely dependent upon dividends paid
by the Bank for funds to pay dividends on the Common Stock. It is also possible,
however, that the Company will pay dividends in the future generated from
investment income and other activities of the Company. Under Federal regulation,
the Bank will be restricted as to the maximum amount of dividends it may pay on
its common stock. Moreover, the approval of the OCC is required for the payment
of any dividend if the aggregate amount of all dividends paid by the Bank during
such calendar year would exceed the sum of: (i) the total net profits of the
Bank for that year; and (ii) the retained net profits of the Bank for the
previous two years less any required transfer to surplus. The OCC and the FDIC
are also authorized under certain circumstances to prohibit the payment of
dividends by the Bank. Under federal law and Federal Reserve policy, a bank
holding company is required to serve as a source of financial strength to its
subsidiary bank and to commit resources to support the bank. Consistent with
this requirement the Federal Reserve has stated that, as a matter of prudent
banking, a bank holding company generally should not pay cash dividends unless
the available net income of the bank holding company is sufficient to fully fund
the dividends, and the prospective rate of earnings retention appears to be
consistent with the company's needs, asset quality and overall financial
condition. For additional information regarding restrictions on payment of
dividends, see "Supervision and Regulation Dividends."
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<PAGE> 16
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
August 31, 1997, and as adjusted to reflect the sale of the shares of Common
Stock offered hereby:
<TABLE>
<CAPTION>
August 31, 1997
-----------------------------
Actual As Adjusted
------------ ------------
<S> <C> <C>
Long-term and short-term debt............................ $ 323,765 $ ---
============ ============
Stockholders' equity:
Preferred Stock; no stated par; 2,000,000
shares authorized; no shares
issued or outstanding..............................
Common Stock; $.01 par value, 10,000,000
shares authorized; 100 shares issued
and outstanding (1,000,000 shares as adjusted)..... 1 10,000
Additional paid-in capital............................... 999
-------------
Accumulated deficit (2).................................. (99,855) (99,855)
------------ ------------
Total stockholders' equity............................... $ (98,855) $
============ ============
</TABLE>
(1) Does not include 60,000 shares of Common Stock issuable upon exercise of
outstanding options under the Company's incentive stock option plan and
20,400 shares of Common Stock issuable under certain warrants granted to
the Company's organizers. See "Management - Incentive Stock Option Plan"
and "Management - Organizers' Warrants."
(2) The accumulated deficit as of August 31, 1997, is comprised primarily of
pre-opening expenses related principally to legal and professional fees
incurred in the regulatory application process, creation of the holding
company, office occupancy costs and supplies. In addition, Lewis S. Albert
and Todd H. Katz have been receiving consulting fees from the Company
since June 15, 1997. The accumulated deficit will continue to increase
prior to the Bank's commencement of operations, and will then increase
further as expected initial operating losses are incurred. Additional
employees will be hired prior to the opening of the Bank and further
salary expenses and training costs will be incurred at such time.
Additional professional fees will also be incurred in connection with this
offering and other corporate matters.
BUSINESS
GENERAL
The Company was incorporated under the laws of the State of Florida on
August 7, 1997. The Company was formed to own all of the common stock of the
Bank and to engage in the business of a bank holding company under the BHC Act.
The Bank is organizing as a national banking association with depository
accounts to be insured by the FDIC to the extent permitted by law. The Bank
intends to offer a full range of commercial and consumer banking services
primarily within the Bank's designated PMA. The PMA includes the northern part
of Charlotte County, Florida (including the communities of Port Charlotte and
Punta Gorda) and the southeastern part of Sarasota County (including the
community of North Port). The Bank's Extended Market Area encompasses all of
Charlotte and Sarasota Counties. The Company and the Bank have applied for all
necessary regulatory approvals. Assuming such regulatory approvals are received
and the successful completion of this offering, the Company and the Bank
anticipate commencing business in a leased temporary modular facility in the
first quarter of 1998 to be located in Port Charlotte. This date is only an
estimate and is subject to many factors inherent in the regulatory approval
process. The Bank intends to commence business as soon as reasonably possible
upon completion of the offering and
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<PAGE> 17
satisfaction of conditions to which certain of its regulatory approvals is
subject. See "Risk Factors - Governmental Regulation and Monetary Policy". The
Company currently maintains its offices at 4055 Tamiami Trail, Suite A-6, Port
Charlotte, Florida 33952. Upon completion of the Bank's facility, the address
will be 1490 Tamiami Trail, Port Charlotte, Florida 33948. The Company's
telephone number is (941) 625-1744.
BACKGROUND
The liberalization of Federal and State of Florida interstate banking
laws in recent years has led to substantial consolidation of the banking
industry in Florida and the Southwest Florida area. Since the early 1980s,
several of the area's locally owned or locally managed financial institutions
have been acquired by large regional bank holding companies. Members of the
Board, all of whom have been participants or observers of the local banking
scene for many years, have noticed the need for a locally owned, highly
service-oriented banking organization to fill a void created by this
consolidation in the banking industry. Specifically, the Board believes that the
area could greatly benefit from a financial institution whose focus would be to
serve the business and personal banking needs of local entrepreneurs and local
business owners. The Board also believes that this niche is currently being
under-served by other banks.
In the opinion of the Company's management, this situation has created a
favorable opportunity for a new commercial bank with headquarters in the Port
Charlotte area. Management of the Company believes that such a bank can attract
those clients who prefer to conduct business with a locally-managed institution
that demonstrates an active interest in their businesses and personal financial
affairs. The Company believes that a locally managed institution will be better
able to deliver more timely responses to client requests, provide customized
financial products or services addressing out-of-the-ordinary matters and offer
the personal attention of senior banking officers. The Bank will seek to take
advantage of this opportunity by emphasizing in its marketing plan the Bank's
local management and the Bank's ties and commitment to the local community.
The Company and the Bank to date have conducted no business other than
matters incidental to their organization, including negotiations with additional
prospective executive officers. Following completion of this offering and before
commencement of operations, the Bank intends to occupy and furnish its temporary
office, hire and train staff, purchase or lease and install equipment necessary
to transact business, establish correspondent banking relationships and make
other arrangements for necessary services
BUSINESS STRATEGY
The Bank intends to concentrate on the financial services needs of
individuals and local businesses. A cornerstone of the Bank's business strategy
will be to emphasize the Bank's local management and its commitment to the
Bank's market area. Lewis S. Albert, the Chairman of the Board and Chief
Executive Officer of the Company and the Bank, has 20 years of experience
serving the banking industry both in executive management capacities and as a
service professional. Mr. Albert most recently served as Senior Vice President
and Chief Financial Officer of Southwest Banks, Inc. a community multi-bank
holding company headquartered in Southwest Florida until its acquisition by
F.N.B. Corporation in 1997. Todd H. Katz, Vice Chairman, President and General
Counsel of the Company and the Bank, recently served as General Counsel and
managed the Shareholder Relations Department at Southwest Banks, Inc. The
directors of the Company believe that the officers of the Company represent a
range of business, banking and investment knowledge and expertise. The Company
directors believe that the years of experience and existing contacts of the
senior officers offer the Bank a substantial opportunity to attract new
relationships for the Bank.
In addition, the Company intends to hire two additional experienced
individuals to serve as Senior Vice Presidents of the Bank. One such individual
will serve as the Bank's Senior Lending Officer and have experience in
14
<PAGE> 18
that capacity within the Bank's market area. The second such individual will
serve as the Bank's Senior Operations Officer and have experience in that
capacity with community banks in the Southwest Florida area.
The Bank intends to encourage its employees to be active in the civic,
charitable and social organizations located in the local communities. Most of
the Company's directors currently hold, and have held in the past, leadership
positions in a number of community organizations, and intend to continue this
active involvement in future years. Other members of the management team will
also be encouraged to volunteer for such positions.
The Company's goal is to create a "customer-driven" organization focused
on providing high value to clients by promptly delivering products and services
matched directly to their needs. The Bank will strive to establish a high
standard of quality in each service it provides and the employees of the Bank
will be expected to emphasize service in their dealings with clients. Because
the Bank intends to commence operations with a staff of fewer than 15 full time
employees, these employees will need to be flexible in the duties they perform
in an effort to satisfy clients. However, management believes that the use of
current technology will permit each employee to devote more time and attention
to personal service, respond more quickly to a client's requests and deliver
services in the most timely manner possible. Management expects this "high
touch-high tech" manner of operations to be appealing to clients.
Upon its opening, the Bank is planning to undertake a marketing campaign
utilizing an officer calling program and community-based promotions. The
campaign will emphasize the Bank's independence, local management and special
focus on client service. All employees will be expected to actively market the
Bank's services.
The Bank's initial legal lending limit will be approximately $1,125,000.
The Board of Directors will establish an "in-house" limit that will be somewhat
lower than the Bank's legal lending limit. The Board may from time to time raise
or lower the "in-house" limit as it deems appropriate to comply with safe and
sound banking practices and respond to overall economic conditions. Initially,
this limit will affect to a degree the ability of the Bank to seek relationships
with the area's larger businesses. However, in light of senior management's
previous experience and the relationships with a number of the region's other
financial institutions, the Bank may originate loan volumes in excess of its
lending limit and sell participations in such loans to other banks. Likewise, it
is quite possible that the Bank will purchase participations from other area
institutions. See "Risk Factors - Lending Risks and Lending Limits".
PRODUCTS AND SERVICES
It is anticipated that the Bank's hours of operation will initially be
8:30 a.m. to 6:00 p.m., Monday through Friday and from 8:30 to 12:30 on
Saturday. In addition, the Bank's employees will be available to clients wishing
to make appointments outside traditional banking hours, either at the Bank or at
the clients' homes or businesses. By providing "appointment banking," the Bank
intends to demonstrate its high level of responsiveness and service to its
clients.
The Bank intends to offer a range of deposit services, including checking
accounts, NOW accounts, savings accounts and time deposits of various types. The
transaction accounts and time certificates will be tailored to the principal
market area at rates competitive with those offered in the area. All deposit
accounts will be insured by the FDIC up to the maximum amount permitted by law.
The Bank intends to solicit these accounts from individuals, businesses,
associations, organizations, financial institutions and government authorities.
It does not intend to accept brokered deposits. The Bank may also use
alternative funding sources as needed, including advances from Federal Home Loan
Banks, conduit financing and the packaging of loans for securitization and sale.
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<PAGE> 19
The Bank will offer a range of short to intermediate term personal and
commercial loans. The Bank intends to make personal loans directly to
individuals for various purposes, including purchases of automobiles, mobile
homes, boats and other recreational vehicles, home improvements, education and
personal investments. The Bank anticipates that it will retain substantially all
of such loans. The Bank intends initially to offer only balloon payment and
adjustable rate mortgages. It does not anticipate offering long-term fixed rate
mortgage products, except through an arrangement with outside providers. The
Bank expects that any fixed rate residential mortgage loans it generates will be
sold to third party investors, though with respect to some of such loans, the
Bank may continue to service the loans for a fee. Commercial loans are expected
to be made primarily to small and mid-sized businesses. These loans will be both
secured and unsecured and will be available for general operating purposes,
acquisition of fixed assets, including real estate, purchases of equipment and
machinery, financing of inventory and accounts receivable as well as any other
purpose considered appropriate.
The Bank currently plans to offer other services, including credit cards,
money orders, traveler's checks, automated teller services with access to one or
more regional or national automated teller networks and safe deposit services.
Although the Bank has been involved in discussions with a number of vendors
regarding the provision of such services, the Bank does not expect to make final
decisions with respect to the providers of such services until approximately 60
days before its commencement of business. The Bank also intends to establish
relationships with correspondent banks and other financial institutions to
provide other services for its clients, including requesting correspondent banks
to participate in loans where the loan amount exceeds the Bank's policies or
legal lending limit.
Many of the data processing services, including on-line teller service,
will be purchased on a contract basis, reducing the number of persons otherwise
required to handle the operational functions of the Bank. The Bank is in the
process of discussing arrangements with potential data processing companies.
ASSET/LIABILITY MANAGEMENT
It will be the objective of the Company and the Bank to manage assets and
liabilities to provide a satisfactory, consistent level of profitability within
the framework of established cash, loan, investment, borrowing and capital
policies. Certain of the officers of the Bank will be responsible for monitoring
policies and procedures that are designed to insure acceptable composition of
the asset/liability mix, and stability and leverage of all sources of funds
while adhering to prudent banking practices. It also will be the overall
philosophy of management to support asset growth primarily through growth of
deposits, which include deposits of all categories made by individuals,
partnerships and corporations. Management of the Bank will seek to invest the
largest portion of its assets in commercial, consumer and real estate loans.
Bank management also will view the Bank's investment portfolio as a source of
liquidity and as a means to balance its asset/liability mix. The Bank will
invest primarily in obligations of the United States or obligations guaranteed
as to principal and interest by the United States, or other taxable securities
and in certain obligations of states and municipalities. The Bank also will
enter into Federal Funds transactions with its principal correspondent banks,
which represent a short term (generally overnight) loan from one bank to
another, to balance its liquidity needs.
The Bank intends to monitor its asset/liability mix on a daily basis and a
quarterly report reflecting interest-sensitive assets and interest-sensitive
liabilities will be prepared and presented to the Bank's Asset and Liability
Management Committee. The objective of this policy will be to manage liquidity
and control interest-sensitive assets and liabilities so as to minimize the
impact of substantial movements in interest rates on the Bank's earnings.
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<PAGE> 20
MARKET AREA
Overview
The Bank anticipates that the PMA for its services will be the Northern
part of Charlotte County, Florida and the Southeastern part of Sarasota County,
Florida. The communities of Port Charlotte and North Port are located in
Charlotte County and Sarasota County, respectively, on the Southwest coast of
Florida. Port Charlotte is part of the Punta Gorda MSA and North Port is part of
the Sarasota-Brandenton MSA. However, the Port Charlotte and North Port areas
are contiguous and form one market area, which the Bank considers its PMA. The
PMA is located approximately 40 miles south of Sarasota and 40 miles north of
Ft. Myers. Port Charlotte is unincorporated and North Port is incorporated. Both
communities were created and developed in the late 1950s. The PMA encompasses an
area of approximately 120 square miles.
The population of Charlotte County (which is also in the Punta Gorda MSA)
was 132,000 in 1996 and the population of Port Charlotte, at 48,000, comprised
36% of the County and the MSA. The population of North Port was 15,000, or 5% of
Sarasota County's population and 3% of the population of the Sarasota-Brandenton
MSA. The total population of the PMA in 1996 was 63,000, with 76% of the
population in Port Charlotte and 24% in North Port. The Bank's Extended Market
Area encompasses all of Charlotte and Sarasota Counties.
The Primary and Extended Market Areas offer recreational facilities,
cultural events, resorts, commercial office parks, residential developments,
major transportation routes, shopping centers, and entertainment areas. Access
to the area is by Interstate 75 and U.S. 41. Air service is through the
Sarasota/Brandenton International Airport and the Southwest Florida
International Airport in Ft. Myers, both less than an hour's drive from the
area. The area's annual average temperature of 75(0) provides comfortable
year-round living.
Population
For 1993 - 2005 the U.S. Department of Commerce named the Punta Gorda MSA,
of which Port Charlotte is a part, the "#1 Fastest Growing Metropolitan Area in
the United States." Seasonal population, which includes part-time residents who
may live for several months in Charlotte County while maintaining another
residence elsewhere, increases from January through April, thereby increasing
the population of the PMA during that time.
The historical growth rate for the past five years was 15.3% in Port
Charlotte and 28.3% in North Port. These growth rates are higher than the
historic growth rates during the past five years of 6.6% for the United States
and 10.8% for Florida. In Charlotte County approximately 48% of the population
is over 55. This is reflective of the populations in the PMA. However, low
taxes, a below average cost of living, and a healthy business environment are
attracting young professionals to the area, as well as retirees.
Industry and Employment
Port Charlotte and North Port are part of one of the fastest growing areas
of the country. Business and entertainment service industries, retail trade,
government, construction, real estate, finance/ insurance, and
transportation/communication/ utility form the basis for the area's business
economy. Commercial construction of
17
<PAGE> 21
small shopping centers and small office parks are in progress throughout the
area (and throughout the Extended Market Area). Until the late 1950s and early
1960s, agriculture was a major economic basis for the area. Although not as
important as it once was, agriculture remains a part of the area's industry,
with citrus crops, nurseries, and vegetables making up the bulk of the
agriculture business.
The largest employers in Charlotte County are the Charlotte County
Schools, the Charlotte Regional Medical Center, Fawcett Memorial Hospital,
Publix Super Market, the Charlotte Corrections Institute, and St. Joseph
Hospital. Other large employers include WalMart, K-Mart, and Sears. The
Charlotte County Government and the City of Punta Gorda also employ a
significant number of people. Many North Port residents work in Charlotte
County. However, North Port's major business areas include Trott Circle, a small
business park, and North Port Industrial Park, a 150+ acre complex anchored by
Florida Power & Light.
Management believes that this diverse and growing commercial base provides
potential for business banking services, together with personal banking services
for owners and employees of these enterprises.
COMPETITION
The Bank's intended market area is competitive. There are currently 13
banks and thrifts with 29 offices in the PMA and 24 banks and thrifts
representing 151 offices in the Extended Market Area. The Bank will also face
competition from finance companies, insurance companies, mortgage companies,
securities brokerage firms, money market funds, loan production offices and
other providers of financial services. Most of the Bank's competitors have been
in business for many years, have established customer bases, are substantially
larger, have substantially larger lending limits than the Bank and can offer
certain services, including multiple branches and international banking
services, that the Bank will be able to offer only through correspondent banks,
if at all. In addition, most of these entities have greater capital resources
than the Bank, which among other things, may allow them to price their services
at levels more favorable to clients and to provide larger credit facilities than
could the Bank. The Company anticipates that the Bank's legal lending limit of
approximately $1,125,000 will be adequate to satisfy the credit needs of most of
its clients and that the needs of its clients in excess of this amount will be
met through loan participation arrangements with correspondent banks and others.
The Bank will compete for loans principally through the range and quality
of the services it will provide, interest rates and loan fees. The Company
believes that its personal service philosophy will enhance the Bank's ability to
compete favorably in attracting individuals and local businesses. The Bank will
actively solicit deposit related clients and will compete for deposits by
offering clients personal attention, professional service and competitive
interest rates.
BANK PREMISES
The Company currently leases its premises at 4055 Tamiami Trail, Port
Charlotte, Florida 33952. The Company has entered into a contract to purchase
approximately 1.1 acres of commercially zoned land on which it will build the
Bank's main facility, which will also serve as the Company's executive offices.
The site is located at 1490 Tamiami Trail, which is at the intersection of U.S.
Highway 41 and Murdock Circle, a major intersection in Charlotte County. The
surrounding area is mixed-use commercial and industrial properties, including
the regional Town Center Mall and Port Charlotte Industrial Park. The
intersection is within one-half mile of the center of the area's residential
development.
The banking facility is anticipated to consist of approximately 7,800
square feet of office space and will include a community meeting / board room.
The facility will have four inside teller stations, three drive-through lanes,
and one drive-up ATM lane.
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<PAGE> 22
A temporary banking facility comprising 1,960 square feet will be leased
and located on the site and will be utilized during the construction of the
permanent facility. This facility will be leased for a period of one year with
monthly lease payments, including equipment, estimated at $4,500 per month,
together with a one time $3,700 charge to deliver, install and remove the
facility. Site work necessary to accommodate the temporary facility will cost
approximately $44,000.
It is anticipated that the estimated land acquisition cost and
improvements will total approximately $875,000; building construction costs will
total approximately $984,000; and total costs for equipment and furnishings for
the building will total approximately $278,000. The Company has not entered into
any agreement with respect to the foregoing expenditures and, accordingly, there
is no insurance that the amounts actually incurred by the Company in connection
with the foregoing will not exceed the foregoing estimates.
EMPLOYEES
The Bank intends to commence operations with a staff of fewer than 15
full-time equivalent employees. Lewis S. Albert will serve as the Chairman of
the Board and Chief Executive Officer of the Company and the Bank. Todd H. Katz
will serve as Vice Chairman, President and General Counsel of the Company and
the Bank. The Bank has also identified and obtained employment commitments with
its remaining executive officers which comprise a Senior Vice President-Senior
Lending Officer and a Senior Vice President-Cashier. At present, Messrs. Albert
and Katz are the only employees actively involved in the organization of the
Company and the Bank and, commencing in June 1997, have each been receiving a
monthly consulting fee of $7,000. This fee will be continued until such time as
the Bank is authorized to enter into employment agreements. See "Management -
Employment Agreements."
The Company will hire additional officers and employees prior to
commencement of the Bank's operations. Company management anticipates that the
Company will increase its staff from 15 to 21 full-time equivalent employees
during the second year of its operations in order to provide for anticipated
growth. The Company plans to employ as officers and employees of the Bank
primarily persons from the Bank's market areas who have experience in banking.
The Company intends to pay competitive salaries to attract and retain such
officers and employees.
MANAGEMENT
DIRECTORS AND OFFICERS
The directors and officers of the Company as of the date hereof, are as
follows:
<TABLE>
<CAPTION>
Positions Positions
Name Age with the Company with the Bank
- ---- --- ---------------- -------------
<S> <C> <C> <C>
Lewis S. Albert... .............. 45 Chairman of the Board, Chairman of the Board,
Treasurer, and Chief and Chief Executive Officer
Executive Officer
Todd H. Katz..................... 32 Vice Chairman, President, Vice Chairman, President,
Secretary and General Counsel Secretary and General Counsel
Mark O. Asperilla, M.D........... 43 Director Director
</TABLE>
19
<PAGE> 23
<TABLE>
<S> <C> <C> <C>
James R. Baker................. 60 Director Director
Billie A. Barger............... 69 Director Director
James C. Brown................. 58 Director Director
Gerald P. Flagel .............. 61 Director Director
Gina D. Hahn................... 65 Director Director
Larry A. Tenbusch.............. 40 Director Director
</TABLE>
The Company has a classified board of directors, with directors serving
staggered three-year terms. The terms of Mr. Brown, Mrs. Hahn and Mr. Tenbusch,
as Class I directors, expire in April, 1998, the terms of Messrs. Albert,
Asperilla and Flagel, as Class II directors, expire in April, 1999, and the
terms of Messrs. Baker, Barger and Katz, as Class III directors, expire in
April, 2000. There are no family relationships among any of the Company'
directors, officers or key personnel, except that Gina D. Hahn is the
mother-in-law of Todd H. Katz . Officers of the Company and the Bank will be
elected annually by their respective Boards of Directors.
COMMITTEES OF THE BANK
The Board of Directors will establish various working committees of its
members. Committees will meet routinely and will report directly to the entire
Board of Directors. The Board Committees will include:
Asset - Liability Management Committee - Responsible for (i) overall
investment strategy, including liquidity and risk management, (ii) monitoring
deposit level trends and pricing, (iii) monitoring asset level trends and
pricing, and (iv) portfolio investment decisions, and (v) establishing
appropriate levels of insurance.
Audit, Compliance and CRA Committee - Responsible for (i) insuring the
Board receives objective information regarding policies, procedures and controls
of the Bank including auditing, accounting, internal accounting controls,
financial reporting, (ii) recommending the appointment of an independent auditor
on an annual basis, (iii) reviewing independent auditor's report and
management's response, (iv) reviewing all reports from regulatory authorities
and management's response, (v) establishing independent reviews and audits (vi)
insuring the Bank is in full compliance with all pertinent regulations and laws;
(vii) establishing an appropriate and independent testing program for
compliance, (viii) developing a proactive CRA program, (ix) developing programs
to insure compliance with Fair Lending Laws, and (x) establishing appropriate
levels of insurance.
Compensation Committee - Responsible for (i) establishing appropriate
levels of compensation throughout the Bank, (ii) analyzing compensation levels
on an annual basis, (iii) recommending overall compensation increases and
changes in benefits to the Board for approval, (iv) establishing policies with
regard to compensation and benefits at the Bank; and (v) recommending all
compensation increases, benefit changes and bonuses for senior officers to the
Board for approval.
Loan Committee - Responsible for (i) establishing, in conjunction with
management, and approving all major policies and procedures pertaining to
credit, (ii) establishing a loan approval system, (iii) reviewing all loans in
excess of specific amounts determined in policies and procedures, (iv) reviewing
all past due reports, rated loan reports, real estate owned, non-accrual
reports, and other indicators of overall loan portfolio quality, (v) assuring
adequate funding
20
<PAGE> 24
of the loan loss reserve exists, and (v) handling other matters pertaining to
the credit function, such as yields and loan concentrations.
EXPERIENCE OF DIRECTORS AND OFFICERS
The experience and backgrounds of the directors and executive officers of
the Company and the Bank are summarized below.
DIRECTOR, CHAIRMAN AND CHIEF EXECUTIVE OFFICER - LEWIS S. ALBERT
Mr. Albert will be the Chairman, Treasurer and CEO for the Company and the
Bank. He is a Certified Public Accountant with 17 years experience at Deloitte
and Touche. From 1993 until May 1997, Mr. Albert was the Senior Vice President
and Chief Financial Officer for a $750 million multi-bank holding company in
Florida, Southwest Banks, Inc., that was acquired by an out-of-state holding
company. At Southwest Banks, Mr. Albert was responsible for financial and
regulatory reporting, tax planning and compliance, strategic financial planning,
investor relations, merger and acquisition analysis and implementation, capital
formation, budget management, and supervision of all affiliate financial,
corporate legal, compliance and internal audit functions. Mr. Albert also was
involved with retail and support functions at Southwest Banks, including product
selection and pricing, systems development and modification, employee benefit
plan issues and executive compensation matters. From 1992 until 1993, Mr. Albert
was President of Trebla Sales, Inc., a distributor of medical diagnostic
equipment and supplies. Mr. Albert has been actively involved in the South
Florida business community, having served as Secretary/Treasurer of the Board
for the South Florida Manufacturers Association, a member of the Fort Lauderdale
Chamber of Commerce, a member of the South Florida Business Council, and as
Chairman of the Chamber's Florida Industry Appreciation Week Committee.
DIRECTOR, VICE CHAIRMAN AND PRESIDENT - TODD H. KATZ
Mr. Katz, a banking attorney with both private practice and in-house
experience, will be the Vice Chairman, President, Secretary and General Counsel
of the Company and the Bank. He served as General Counsel of Southwest Banks,
Inc. from February 1993 to May 1997, with oversight of the holding company's and
its subsidiaries' legal and regulatory affairs, while directing the holding
company's shareholder relations and services departments. While at Southwest
Banks, Inc., Mr. Katz was involved in various financial, retail and planning
aspects for the holding company and its banks, including extensive involvement
in structuring the holding company's acquisition and branching objectives. From
January through December 1992, Mr. Katz directed the political campaign for Rob
Quartel, a candidate vying to represent Florida in the U.S. Senate. Prior to
organizing the campaign, Mr. Katz was an attorney with the banking firm of
Miller, Hamilton, Snider, and Odom. Mr. Katz has been active in the Southwest
Florida community through his service as a board member of the Collier County
Humane Society and the Youth Development Board and as an active member of the
Collier County Bar Association and the Florida Bar.
DIRECTORS
MARK O. ASPERILLA, M.D. - Born in Manila, Philippines, Dr. Asperilla is a
U.S. citizen who has lived in Charlotte County since 1991, when he formed his
current medical practice. Dr. Asperilla attended the University of St. Thomas,
Manila, Phillippines for his undergraduate and medical degrees. In addition to
managing his own medical practice, where he specializes in infectious disease
and internal medicine, Dr. Asperilla serves on the Executive Boards of St.
Joseph's Hospital and Fawcett Medical Center Hospital and is presently the
Secretary of the Charlotte County Medical Society. In addition to serving as a
Fellow of the American Board of Internal Medicine,
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<PAGE> 25
Dr. Asperilla is the President of two commercial citrus growing entities located
in the area, Emerald Groves and A&M Groves.
JAMES R. BAKER - Mr. Baker moved to Charlotte County in 1969 and
established his bio-solids management operations company, J&J Baker Enterprises
in 1984. J&J Baker Enterprises is one of the largest privately owned
corporations of its type in Florida, with offices and divisions throughout the
State. Mr. Baker has served as President of that concern since its inception and
is actively involved in community and business associations, including the
Florida Cattleman's Association, the Charlotte County Chamber of Commerce, the
Charlotte County Economic Development Council, Charlotte County Pop Warner
Football Program, and the Charlotte County Fair Association Livestock and Cattle
Sale.
BILLIE A. BARGER - Mr. Barger has spent over 30 years in the banking and
thrift industries, most recently serving as Director, President and Chief
Executive Officer of Murdock Florida Bank in Charlotte County, Florida. He has
served in various Board of Director capacities for two other institutions in
Southwest Florida, having participated in the organization of Seminole Savings
Bank in St. Petersburg, Florida in 1983. Mr. Barger has also held Executive
Management positions with four institutions since 1974. Since 1989, Mr. Barger
has served as President of Bar-ton of Pinellas, Inc. d/b/a Northwest Mobile
Marts. He has been active in area civic groups including the Rotary Club of
Charlotte County as a member of the Board of Directors, and the Charlotte County
Chamber of Commerce and Economic Development Committee. He has also served as
past president for a number of civic groups including the Greater Seminole Area
Chamber of Commerce and the Southwest Florida Council, Boy Scouts of America.
JAMES C. BROWN - Mr. Brown moved to Charlotte County in 1982 from his home
state of Ohio to expand his concrete manufacturing company, Miami-Valley
Concrete, for which he has served as President since 1975. The company has
plants in Ohio and Florida and is a supplier of concrete products to
construction and real estate development concerns. Mr. Brown is an active member
of the North Port Builders Association, the Charlotte Building Contractors
Association, and the Florida Independent Concrete and Associated Products, Inc.
GERALD P. FLAGEL - Mr. Flagel graduated from Northwestern University and
the Ohio State University College of Law. He is an attorney and CPA specializing
in tax matters. He was the managing partner of a regional CPA firm in Dayton,
Ohio, his native state, until 1989 when he relocated to Naples, Florida, where
he has since practiced under Gerald P. Flagel, P.A., a tax and accounting firm.
Mr. Flagel helped found the Jewish Federation of Collier County and was that
organization's first president, and he currently sits on its board. He is active
in Temple Shalom and the Naples Philharmonic Center for the Arts.
GINA D. HAHN - A New Jersey native and a seasonal visitor to Southwest
Florida since 1969, Ms. Hahn relocated to Naples, Florida, in 1978. With her
husband, she founded Jewel Equities Corporation, a real estate development and
operating company located in upstate New York that recently purchased
substantial acreage in North Port. Ms. Hahn has overseen Jewel Equities
Corporation's operations as Vice President since 1968. Ms. Hahn served as the
Republican Party's Chairman of the 14th Congressional District from 1995 through
1996 and served two terms as the President of the 200 member Women's Republican
Club of Naples. She has served as the Second Vice President of the Florida
Federation of Republican Women since January 1997 and has been re-elected to
four-year terms as Republican State Committeewoman from Collier County since
1982.
LARRY A. TENBUSCH - Born in Michigan, Mr. Tenbusch moved to North Port in
1975 and, with his father, founded Tenbusch Construction. He has served as
President of the company since 1983, which is a high quality custom homebuilder.
He also served as the founding President of the North Port Contractors
Association. Mr. Tenbusch currently serves as Chairman of both the Certificate
Licensing Board and the Building and Construction Advisory Board for the City of
North Port.
22
<PAGE> 26
EXECUTIVE OFFICERS OF THE BANK
In addition to Messrs. Albert and Katz, the Company also anticipates that
the Bank will hire two additional experienced individuals to serve as Senior
Vice Presidents of the Bank. One such individual will serve as the Bank's Senior
Lending Officer and have experience in that capacity within the Bank's PMA. The
second such individual will serve as the Bank's Senior Operations Officer and
will have experience in that capacity with community banks in the Southwest
Florida area.
EMPLOYMENT AGREEMENTS
The Company intends to enter into employment agreements with Messrs.
Albert and Katz. Each contract will be for a term effective upon the date
employment commences and run through the second anniversary from the date the
Bank receives its charter from the OCC. Unless renewed prior to the end of the
term, the contracts will provide that they be treated as a termination "without
cause" requiring severance benefits as discussed in the paragraph that follows.
The agreements further will provide for participation in the Company's health,
life, disability and retirement plans and the payment of club membership dues.
The agreements also will provide for the grant of options to purchase shares of
Common Stock under the Company's stock option plan. See " Incentive Stock Option
Plan."
The employment agreements will be terminable at any time by the Company's
Board of Directors. The agreements will provide severance benefits in the event
the executive is terminated "without cause" or his employment contract is not
renewed at the end of its term, including severance compensation equal to 100%
of his then current annual salary (including any incentive compensation) paid
during the full year preceding the notice of termination, together with the
value (if any) of stock options held by the executive whether or not vested. The
Company may terminate the agreements at any time for "cause" without incurring
any post-termination obligations. Upon a change in control, as defined, each
executive may, at his option, be paid severance benefits on the same basis as
discussed above. The agreements also will provide for the issuance of Incentive
Stock Options to the Executive Officers of the Company and the Bank at an
exercise price equal to that in this offering of Common Stock of $10 per share.
See "Incentive Stock Option Plan."
INCENTIVE STOCK OPTION PLAN
The Company's Board of Directors and initial stockholders have adopted an
Incentive Stock Option Plan to promote equity ownership of the Company by
selected officers and employees of the Company and the Bank, to increase their
proprietary interest in the success of the Company and to encourage them to
remain in the employ of the Company.
ADMINISTRATION. The Stock Incentive Plan will be administered by the
Company's Compensation Committee (the "Committee"), which is comprised of at
least two non-employee directors appointed by the Company's Board of Directors.
The Committee will have the authority to select the officers and employees to
whom awards may be granted, to determine the terms of each award, to interpret
the provisions of the Incentive Stock Option Plan and to make all other
determinations that it may deem necessary or advisable for the administration of
the Incentive Stock Option Plan.
The Stock Incentive Plan provides for the grant of "incentive stock
options," as defined under Section 422(b) of the Internal Revenue Code of 1986,
as amended. The Board of Directors has reserved 125,000 shares of Common Stock
for issuance under the Stock Incentive Plan. In general, if any award granted
under the Stock Incentive Plan expires, terminates, is forfeited or is canceled
for any reason, the shares of Common Stock allocable to such award may again be
made subject to an award granted under the Incentive Stock Option Plan.
23
<PAGE> 27
AWARDS. Officers and policy-making employees of the Company and the Bank
are eligible to receive grants under the Incentive Stock Option Plan. Awards may
be granted subject to a vesting requirement and in any event will become fully
vested upon a merger or change of control of the Company. The exercise price of
incentive stock options must at least equal the fair market value of the Common
Stock subject to the option (determined as provided in the plan) on the date the
option is granted.
An incentive stock option granted under the Incentive Stock Option Plan to
an employee owning more than 10% of the total combined voting power of all
classes of capital stock of the Company is subject to the further restriction
that such option must have an exercise price of at least 110% of the fair market
value of the shares of Common Stock, issuable upon exercise of the option
(determined as of the date the option is granted) and may not have an exercise
term of more than five years. Incentive stock options are also subject to the
further restriction that the aggregate fair market value (determined as of the
date of grant) of Common Stock as to which any such incentive stock option first
becomes exercisable in any calendar year, is limited to $100,000. To the extent
options covering more than $100,000 worth of Common Stock first become
exercisable in any one calendar year, the excess will be nonstatutory options.
For purposes of determining which, if any, options have been granted in excess
of the $100,000 limit, options will be considered to become exercisable in the
order granted.
Each officer and key employee eligible to participate in the Incentive
Stock Option Plan will be notified by the Committee. To receive an award under
the Incentive Stock Option Plan, an award agreement must be executed which
specifies the type of award to be granted, the number of shares of Common Stock
to which the award relates, the terms and conditions of the award and the date
granted. In the case of an award of options, the award agreement will also
specify the price at which the shares of Common Stock subject to the option may
be purchased, and the date(s) on which the option becomes exercisable.
The full exercise price for all shares of Common Stock purchased upon the
exercise of options granted under the Incentive Stock Option Plan must be paid
by cash, personal check, personal note, award surrender or Common Stock owned at
the time of exercise. Incentive stock options granted to employees under the
Incentive Stock Option Plan may remain outstanding and exercisable for 10 years
from the date of grant or until the expiration of 90 days (or such lesser period
as the Committee may determine) from the date on which the person to whom they
were granted ceases to be employed by the Company. Options granted under the
Plan are exercisable in increments of 10% per year commencing on the date of
grant.
INCOME TAX. Incentive stock options granted under the Stock Incentive Plan
have certain advantageous tax attributes to the recipient under the income tax
laws. No taxable income is recognized by the option holder for income tax
purposes at the time of the grant or exercise of an incentive stock option,
although neither is there any income tax deduction available to the Company as a
result of such a grant or exercise. Any gain or loss recognized by an option
holder on the later disposition of shares of Common Stock acquired pursuant to
the exercise of an incentive stock option generally will be treated as capital
gain or loss if such disposition does not occur prior to one year after the date
of exercise of the option.
AMENDMENT AND TERMINATION. The Incentive Stock Option Plan expires 10
years after its adoption, unless sooner terminated by the Board of Directors.
The Board of Directors has authority to amend the Plan in such manner as it
deems advisable. The Plan provides for appropriate adjustment, as determined by
the Committee, in the number and kind of shares subject to unexercised options,
in the event of any change in the outstanding shares of Common Stock by reason
of a stock split, stock dividend, combination or reclassification of shares,
recapitalization, merger or similar event.
24
<PAGE> 28
ORGANIZERS' WARRANTS
The Company's Board of Directors and its initial stockholders have adopted
a warrant plan to compensate its non-employee organizers for their efforts in
and funding of the organization of the Company and the Bank. The Company intends
to issue warrants to purchase 0.34 shares of Common Stock for each share of
Common Stock purchased by such organizers prior to commencement by the Bank of
its banking business. The exercise price will be $10 per share, the offering
price of the Common Stock being offered herein. The warrants will vest over a
four year period (25% per year) commencing at the date of issuance and will have
a term of 10 years from the issuance date at which time they will expire. The
warrant agreement further provides for a call provision in the event the Bank is
determined to require additional capitalization under supervisory order, and if
not honored when called, will terminate at that time. The Company has reserved
96,443 shares of its Common Stock for issuance thereunder.
CERTAIN TRANSACTIONS
ORGANIZATIONAL ADVANCES
The organizers of the Company and the Bank have advanced to the Company an
aggregate of $366,000 for use in connection with organizational and capital
raising expenses. All such amounts advanced to the Company from its organizers
do not bear interest. Such advances will be repaid in the form of shares of
Common Stock sold in this offering, valued at the offering price of $10 per
share. In compensation for their efforts in and funding of the organization of
the Company and the Bank, the Company will grant certain warrants to the
non-employee organizers to purchase Common Stock of the Company for $10 per
share. See "Principal Shareholders" and "Management - Organizers' Warrants."
BANKING TRANSACTIONS
It is anticipated that the directors and officers of the Company and the
Bank and the companies with which they are associated will have banking and
other transactions with the Company and the Bank in the ordinary course of
business. All transactions between the Company and affiliated persons, including
5% stockholders, will be on terms no less favorable to the Company than could be
obtained from independent third parties. Any loans and commitments to lend to
such affiliated persons or entities included in such transactions will be made
in accordance with all applicable laws and regulations and on substantially the
same terms, including interest rates and collateral, as those prevailing at the
time for comparable transactions with unaffiliated parties of similar
creditworthiness.
INDEMNIFICATION
The Articles of Incorporation and Bylaws of the Company provide for the
indemnification of directors and officers of the Company and the Bank, including
reasonable legal fees, incurred by such directors and officers while acting for
or on behalf of the Company or the Bank as a director, officer, employee or
agent, subject to certain limitations. See "Description of Capital Stock -
Certain Anti-Takeover, Indemnification and Limited Liability Provisions." The
Company expects to purchase directors' and officers' liability insurance for
directors and officers of the Company and the Bank.
25
<PAGE> 29
PRINCIPAL SHAREHOLDERS
Except for 100 shares issued to Lewis S. Albert and Todd H. Katz for the
sole purpose of incorporating the Company and electing its directors, the
Company has not yet issued any Common Stock. These organizational shares will be
repurchased by the Company at their $1,000 cost concurrently with the closing of
this offering. See "Description of Capital Stock - Common Stock." The following
table sets forth certain information with respect to the anticipated beneficial
ownership of Common Stock after the sale of shares offered hereby, by: (i) each
person expected by the Company to beneficially own more than 5% of the
outstanding Common Stock; (ii) each of the current directors and executive
officers of the Company and the contemplated directors and executive officers of
the Bank; and (iii) all such directors and executive officers of the Company and
the Bank as a group. All share numbers are provided based upon estimates,
supplied to the Company by the persons listed below, of the number of shares of
Common Stock expected to be purchased in this offering by such persons,
including shares which may be issued to certain directors in full or partial
satisfaction of advances made to the Company. See "Certain Transactions -
Organizational Advances." Depending upon their individual circumstances at the
time, each of such individuals may purchase a greater or fewer number of shares
than indicated in the following table.
<TABLE>
<CAPTION>
Number of shares
beneficially owned Percentage of outstanding
Name after this offering (1) shares owned after this offering
- ---- ----------------------- --------------------------------
<S> <C> <C>
DIRECTORS AND EXECUTIVE OFFICERS
Lewis S. Albert 4,500 0.45%
Mark O. Asperilla 13,017 1.30%
James R. Baker 10,847 1.08%
Billie A. Barger 1,084 0.11%
James C. Brown 10,847 1.08%
Gerald P. Flagel 21,695 2.17%
Gina D. Hahn 10,847 1.08%
Todd H. Katz 4,500 0.45%
Larry A. Tenbusch 6,508 0.65%
----- ----
Directors and executive officers as a group (9 83,845 8.30%
individuals)
</TABLE>
(1) The information contained in this column is based upon information
furnished to the Company by the persons named above and the members of the
designated group. The nature of beneficial ownership for shares shown in
this column is sole voting and investment power. Inclusion of shares shall
not constitute an admission of beneficial ownership or voting or
investment power over included shares. The shares set forth above also
include as to each director the number of shares listed below, which
represents shares the individual will have the right to acquire pursuant
to then presently exercisable options and warrants.
<TABLE>
<CAPTION>
Name of Individual Number of Shares
------------------ ----------------
<S> <C>
Lewis S. Albert 2,000
Mark O. Asperilla 1,017
James R. Baker 847
Billie A. Barger 84
James C. Brown 847
</TABLE>
26
<PAGE> 30
<TABLE>
<S> <C>
Gerald P. Flagel 1,695
Gina D. Hahn 847
Todd D. Katz 2,000
Larry A. Tenbusch 508
-----
9,845
</TABLE>
SUPERVISION AND REGULATION
Banks and their holding companies, and many of their affiliates, are
extensively regulated under both federal and state law. The following is a brief
summary of certain statutes, rules, and regulations affecting the Company and
the Bank. This summary is qualified in its entirety by reference to the
particular statutory and regulatory provisions referred to below and is not
intended to be an exhaustive description of the statutes or regulations
applicable to the business of the Company and the Bank. Any change in the
applicable law or regulation may have a material effect on the business and
prospects of the Company and the Bank. See "Risk Factors -- Government
Regulation and Monetary Policy." Supervision, regulation, and examination of
banks by regulatory agencies are intended primarily for the protection of
depositors, rather than shareholders.
Bank Holding Company Regulation. The Company is a bank holding company
registered with the Federal Reserve under the BHC Act. As such, the Company is
subject to the supervision, examination and reporting requirements of the BHC
Act and the regulations of the Federal Reserve. The Company is required to
furnish to the Federal Reserve an annual report of its operations at the end of
each fiscal year, and such additional information as the Federal Reserve may
require pursuant to the BHC Act. The BHC Act requires that a bank holding
company obtain the prior approval of the Federal Reserve before (i) acquiring
direct or indirect ownership or control of more than 5% of the voting shares of
any bank, (ii) taking any action that causes a bank to become a subsidiary of
the bank holding company, or (iii) merging or consolidating with any other bank
holding company.
The BHC Act further provides that the Federal Reserve may not approve any
transaction that would result in a monopoly or would be in furtherance of any
combination or conspiracy to monopolize or attempt to monopolize the business of
banking in any section of the United States, or the effect of which may be
substantially to lessen competition or to tend to create a monopoly in any
section of the country, or that in any other manner would be in restraint of
trade, unless the anticompetitive effects of the proposed transaction are
clearly outweighed by the public interest in meeting the convenience and needs
of the community to be served. The Federal Reserve is also required to consider
the financial and managerial resources and future prospects of the bank holding
companies and banks concerned and the convenience and needs of the community to
be served. Consideration of financial resources generally focuses on capital
adequacy and consideration of convenience and needs issues includes the parties'
performance under the Community Reinvestment Act of 1977 (the "CRA"), both of
which are discussed below.
The BHC Act generally prohibits a bank holding company from engaging in
activities other than banking, or managing or controlling banks or other
permissible subsidiaries, and from acquiring or retaining direct or indirect
control of any company engaged in any activities other than those activities
determined by the Federal Reserve to be so closely related to banking or
managing or controlling banks as to be a proper incident thereto. In determining
whether a particular activity is permissible, the Federal Reserve must consider
whether the performance of such an activity can reasonably be expected to
produce benefits to the public, such as greater convenience, increased
competition, or gains in efficiency that outweigh possible adverse effects, such
as undue concentration of resources, decreased or unfair competition, conflicts
of interest, or unsound banking practices. For example, factoring accounts
receivable, acquiring or servicing loans, leasing personal property, conducting
securities brokerage activities, performing certain data processing services,
acting as agent or broker in selling credit life insurance and certain other
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types of insurance in connection with credit transactions, and certain insurance
underwriting activities have all been determined by regulations of the Federal
Reserve to be permissible activities of bank holding companies. Despite prior
approval, the Federal Reserve has the power to order a holding company or its
subsidiaries to terminate any activity or terminate its ownership or control of
any subsidiary, when it has reasonable cause to believe that continuation of
such activity or such ownership or control constitutes a serious risk to the
financial safety, soundness, or stability of any bank subsidiary of that bank
holding company.
Banks are subject to the provisions of the CRA. Under the terms of the
CRA, the appropriate federal bank regulatory agency is required, in connection
with its examination of a bank, to assess such bank's record in meeting the
credit needs of the community served by that bank, including low- and
moderate-income neighborhoods. The regulatory agency's assessment of the bank's
record is made available to the public. Further, such assessment is required of
any bank which has applied to (i) charter a national bank, (ii) obtain deposit
insurance coverage for a newly chartered institution, (iii) establish a new
branch office that will accept deposits, (iv) relocate an office, or (v) merge
or consolidate with, or acquire the assets or assume the liabilities of, a
federally regulated financial institution. In the case of a bank holding company
applying for approval to acquire a bank or other bank holding company, the
Federal Reserve will assess the record of each subsidiary bank of the applicant
bank holding company, and such records may be the basis for denying the
application.
Bank Regulation. The Bank will be chartered by the OCC under the National
Banking Act. The Bank's deposits will be insured by the FDIC to the extent
provided by law. The Bank will be subject to comprehensive regulation,
examination and supervision by the OCC. The Bank also will be subject to other
laws and regulations applicable to banks. Such regulations include limitations
on loans to a single borrower and to its directors, officers and employees;
restrictions on the opening and closing of branch offices; the maintenance of
required capital and liquidity ratios; the granting of credit under equal and
fair conditions; and the disclosure of the costs and terms of such credit. The
Bank will be examined periodically by the OCC, to whom the Bank will submit
periodic reports regarding its financial condition and other matters. The OCC
has a broad range of powers to enforce regulations under its jurisdiction, and
to take discretionary actions determined to be for the protection and safety and
soundness of banks, including the institution of cease and desist orders and the
removal of directors and officers. The OCC also has the authority to approve or
disapprove mergers, consolidations, and similar corporate actions.
Under federal law, federally insured banks are subject, with certain
exceptions, to certain restrictions on any extension of credit to their parent
holding companies or other affiliates, on investment in the stock or other
securities of affiliates, and on the taking of such stock or securities as
collateral from any borrower. In addition, banks are prohibited from engaging in
certain tie-in arrangements in connection with any extension of credit or the
providing of any property or service.
In 1989, the Financial Institutions Reform, Recovery and Enforcement Act
of 1989 ("FIRREA") was enacted. FIRREA contains major regulatory reforms,
stronger capital standards for savings and loan associations and stronger civil
and criminal enforcement provisions. FIRREA also provides that a depository
institution insured by the FDIC can be held liable for any loss incurred by, or
reasonably expected to be incurred by, the FDIC after August 9, 1989 in
connection with (i) the default of a commonly controlled FDIC insured depository
institution, or (ii) any assistance provided by the FDIC to a commonly
controlled FDIC insured institution in danger of default.
In 1991, the FDIC Improvement Act of 1991 ("FDICIA") was enacted. FDICIA
made a number of reforms addressing the safety and soundness of deposit
insurance funds, supervision, accounting, and prompt regulatory action, and also
implemented other regulatory improvements. Annual full-scope, on-site
examinations are required of all insured depository institutions. The cost for
conducting an examination of an institution may be assessed to that institution,
with special consideration given to affiliates and any penalties imposed for
failure to provide information
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requested. Insured state banks also are precluded from engaging as principal in
any type of activity that is impermissible for a national bank, including
activities relating to insurance and equity investments. FDICIA also recodified
current law restricting extensions of credit to insiders under the Federal
Reserve Act.
Transactions with Affiliates. There are various legal restrictions on the
extent to which the Company and any future nonbank subsidiaries can borrow or
otherwise obtain credit from the Bank. There also are legal restrictions on the
Bank's purchase of or investments in the securities of and purchases of assets
from the Company and any of its future nonbank subsidiaries, the Bank's loans or
extensions of credit to third parties collateralized by the securities or
obligations of the Company and any of its future nonbank subsidiaries, the
issuance of guarantees, acceptances, and letters of credit on behalf of the
Company and any of its future nonbank subsidiaries, and certain bank
transactions with the Company and any of its future nonbank subsidiaries, or
with respect to which the Company and nonbank subsidiaries act as agent,
participate or have a financial interest. Subject to certain limited exceptions,
the Bank may not extend credit to the Company or to any other affiliate in an
amount which exceeds 10% of the Bank's capital stock and surplus and may not
extend credit in the aggregate to such affiliates in an amount which exceeds 20%
of its capital stock and surplus. Further, there are legal requirements as to
the type, amount and quality of collateral which must secure such extensions of
credit transactions between the Bank and the Company or such other affiliates,
and such transactions must be on terms and under circumstances, including credit
standards, that are substantially the same or at least as favorable to the Bank
as those prevailing at the time for comparable transactions with non-affiliated
companies. Also, the Company and its subsidiaries are prohibited from engaging
in certain tie-in arrangements in connection with any extension of credit, lease
or sale of property or furnishing of services.
Dividends. Dividends from the Bank constitute the primary source of funds
for dividends to be paid by the Company. For additional information, see " Risk
Factors - No Assurance of Dividends" and "Dividend Policy." There also are
various statutory and contractual limitations on the ability of the Bank to pay
dividends, extend credit, or otherwise supply funds to the Company. As a
national bank, the Bank may not pay dividends from its paid-in surplus. All
dividends must be paid out of undivided profits then on hand, after deducting
expenses, including reserves for losses and bad debts. In addition, a national
bank is prohibited from declaring a dividend on its shares of common stock until
its surplus equals its stated capital, unless there has been transferred to
surplus no less than one-tenth of the bank's net profits of the preceding two
consecutive half-year periods (in the case of an annual dividend). The approval
of the OCC is required if the total of all dividends declared by a national bank
in any calendar year exceeds the total of its net profits for that year combined
with its retained net profits for the preceding two years, less any required
transfers to surplus. Florida law applicable to companies (including the
Company) provides that dividends may be declared and paid only if, after giving
it effect, (i) the company is able to pay its debts as they become due in the
usual course of business, and (ii) the company's total assets would be greater
than the sum of its total liabilities plus the amount that would be needed if
the company were to be dissolved at the time of the dividend to satisfy the
preferential rights upon dissolution of shareholders whose preferential rights
are superior to those receiving the dividend.
Capital Requirements. The federal bank regulatory authorities have adopted
risk-based capital guidelines for banks and bank holding companies that are
designed to make regulatory capital requirements more sensitive to differences
in risk profile among banks and bank holding companies. The resulting capital
ratios represent qualifying capital as a percentage of total risk-weighted
assets and off-balance sheet items. The guidelines are minimums, and the federal
regulators have noted that banks and bank holding companies contemplating
significant expansion programs should not allow expansion to diminish their
capital ratios and should maintain all ratios well in excess of the minimums.
The current guidelines require all bank holding companies and
federally-regulated banks to maintain a minimum risk-based total capital ratio
equal to 8%, of which at least 4% must be Tier 1 capital. Tier 1 capital
includes common stockholders' equity, qualifying perpetual preferred stock, and
minority interests in equity accounts of consolidated subsidiaries, but excludes
goodwill and most other intangibles and excludes the allowance for loan and
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lease losses. Tier 2 capital includes the excess of any preferred stock not
included in Tier 1 capital, mandatory convertible securities, hybrid capital
instruments, subordinated debt and intermediate term-preferred stock, and
general reserves for loan and lease losses up to 1.25% of risk-weighted assets.
FDICIA contains "prompt corrective action" provisions pursuant to which
banks are to be classified into one of five categories based upon capital
adequacy, ranging from "well capitalized" to "critically undercapitalized" and
which require (subject to certain exceptions) the appropriate federal banking
agency to take prompt corrective action with respect to an institution which
becomes "significantly undercapitalized" or "critically undercapitalized".
The OCC has issued final regulations to implement the "prompt corrective
action" provisions of FDICIA. In general, the regulations define the five
capital categories as follows: (i) an institution is "well capitalized" if it
has a total risk-based capital ratio of 10% or greater, has a Tier 1 risk-based
capital ratio of 6% or greater, has a leverage ratio of 5% or greater and is not
subject to any written capital order or directive to meet and maintain a
specific capital level for any capital measures; (ii) an institution is
"adequately capitalized" if it has a total risk-based capital ratio of 8% or
greater, has a Tier 1 risk-based capital ratio of 4% or greater, and has a
leverage ratio of 4% or greater; (iii) an institution is "undercapitalized" if
it has a total risk-based capital ratio of less than 8%, has a Tier 1 risk-based
capital ratio that is less than 4% or has a leverage ratio that is less than 4%;
(iv) an institution is "significantly undercapitalized" if it has a total
risk-based capital ratio that is less than 6%, a Tier 1 risk-based capital ratio
that is less than 3% or a leverage ratio that is less than 3%; and (v) an
institution is "critically undercapitalized" if its "tangible equity" is equal
to or less than 2% of its total assets. The OCC also, after an opportunity for a
hearing, has authority to downgrade an institution from "well capitalized" to
"adequately capitalized" or to subject an "adequately capitalized" or
"undercapitalized" institution to the supervisory actions applicable to the next
lower category, for supervisory concerns. The degree of regulatory scrutiny of a
financial institution will increase, and the permissible activities of the
institution will decrease, as it moves downward through the capital categories.
Institutions that fall into one of the three undercapitalized categories may be
required to (i) submit a capital restoration plan; (ii) raise additional
capital; (iii) restrict their growth, deposit interest rates, and other
activities; (iv) improve their management; (v) eliminate management fees; or
(vi) divest themselves of all or part of their operations. Bank holding
companies controlling financial institutions can be called upon to boost the
institutions' capital and to partially guarantee the institutions' performance
under their capital restoration plans. These capital guidelines can affect the
Company in several ways. After completion of this offering, the Company's
capital levels will be in excess of those required to be maintained by a "well
capitalized" financial institution. However, rapid growth, poor loan portfolio
performance, or poor earnings performance, or a combination of these factors,
could change the Company's capital position in a relatively short period of
time, making an additional capital infusion necessary.
Additionally, FDICIA requires, among other things, that (i) only a "well
capitalized" depository institution may accept brokered deposits without prior
regulatory approval and (ii) the appropriate federal banking agency annually
examine all insured depository institutions, with some exceptions for small,
"well capitalized" institutions and state-chartered institutions examined by
state regulators. FDICIA also contains a number of consumer banking provisions,
including disclosure requirements and substantiative contractual limitations
with respect to deposit accounts.
Enforcement Powers. Congress has provided the federal bank regulatory
agencies with an array of powers to enforce laws, rules, regulations and orders.
Among other things, the agencies may require that institutions cease and desist
from certain activities, may preclude persons from participating in the affairs
of insured depository institutions, may suspend or remove deposit insurance, and
may impose civil money penalties against institution-affiliated parties for
certain violations.
Maximum Legal Interest Rates. Like the laws of many states, Florida law
contains provisions on interest rates that may be charged by banks and other
lenders on certain types of loans. Numerous exceptions exist to the general
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interest limitations imposed by Florida law. The relative importance of these
interest limitation laws to the financial operations of the Bank will vary from
time to time, depending on a number of factors, including conditions in the
money markets, the costs and availability of funds, and prevailing interest
rates.
Bank Branching. Banks in Florida are permitted to branch state wide. Such
branch banking by national banks, however, is subject to prior approval by the
OCC. Any such approval would take into consideration several factors, including
the bank's level of capital, the prospects and economics of the proposed branch
office, and other conditions deemed relevant by the OCC for purposes of
determining whether approval should be granted to open a branch office. For
information regarding legislation on interstate branching in Florida, see "--
Interstate Banking" below.
Change of Control. Federal law restricts the amount of voting stock of a
bank holding company and a bank that a person may acquire without the prior
approval of banking regulators. The overall effect of such laws is to make it
more difficult to acquire a bank holding company and a bank by tender offer or
similar means than it might be to acquire control of another type of
corporation. Consequently, shareholders of the Company may be less likely to
benefit from the rapid increases in stock prices that may result from tender
offers or similar efforts to acquire control of other companies. Federal law
also imposes restrictions on acquisitions of stock in a bank holding company and
a state bank. Under the federal Change in Bank Control Act and the regulations
thereunder, a person or group must give advance notice to the Federal Reserve
before acquiring control of any bank holding company and the OCC before
acquiring control of any national bank (such as the Bank). Upon receipt of such
notice, the Federal Reserve or the OCC, as the case may be, may approve or
disapprove the acquisition. The Change in Bank Control Act creates a rebuttable
presumption of control if a member or group acquires a certain percentage or
more of a bank holding company's or state bank's voting stock, or if one or more
other control factors set forth in the Act are present.
Interstate Banking. The Riegle-Neal Interstate Banking and Branching
Efficiency Act of 1994, provides for nationwide interstate banking and
branching. Under the law, interstate acquisitions of banks or bank holding
companies in any state by bank holding companies in any other state are
permissible subject to certain limitations. Florida also has a law that allows
out-of-state bank holding companies (located in states that allow Florida bank
holding companies to acquire banks and bank holding companies in that state) to
acquire Florida banks and Florida bank holding companies. The law essentially
provides for out-of-state entry by acquisition only (and not by interstate
branching) and requires the acquired Florida bank to have been in existence for
at least three years. Interstate branching and consolidation of existing bank
subsidiaries in different states is permissible. A Florida bank also may
establish, maintain, and operate one or more branches in a state other than
Florida pursuant to an interstate merger transaction in which the Florida bank
is the resulting bank. An interstate merger transaction resulting in the
acquisition by an out-of-state bank of a Florida bank is not permitted unless
the Florida bank has been in existence and continuously operating, on the date
of the acquisition, for more than three years.
Effect of Governmental Policies. The earnings and businesses of the
Company and the Bank are affected by the policies of various regulatory
authorities of the United States, especially the Federal Reserve. The Federal
Reserve, among other things, regulates the supply of credit and deals with
general economic conditions within the United States. The instruments of
monetary policy employed by the Federal Reserve for those purposes influence in
various ways the overall level of investments, loans, other extensions of
credit, and deposits, and the interest rates paid on liabilities and received on
assets.
INDUSTRY RESTRUCTURING
For well over a decade, the banking industry has been undergoing a
restructuring process which is anticipated to continue. The restructuring has
been caused by product and technological innovations in the financial services
industry, deregulation of interest rates, and increased competition from foreign
and nontraditional banking
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competitors, and has been characterized principally by the gradual erosion of
geographic barriers to intrastate and interstate banking and the gradual
expansion of investment and lending authorities for bank institutions.
Members of Congress and the administration have indicated their intention
to consider additional legislation designed to institute reforms to promote the
viability of the industry. Certain of the proposals would revise the federal
regulatory structure for insured depository institutions; others would affect
the nature of products, services, and activities that bank holding companies and
their subsidiaries may offer or engage in, and the types of entities that may
control depository institutions. There can be no assurance as to whether or in
what form any such proposed legislation might be enacted, or what impact such
legislation might have upon the Company.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company presently consists of
10,000,000 shares of Common Stock, par value $.01 per share, and 2,000,000
shares of preferred stock, par value not stated (the "Preferred Stock").
COMMON STOCK
As of the date of this Prospectus, there were 100 shares of Common Stock
issued and outstanding of which Messrs. Albert And Katz held 50 shares each.
These shares were issued at a price of $10.00 per share for the sole purpose of
incorporating the Company, and for other organizational purposes, and they will
be redeemed at cost and canceled concurrently with the closing of this offering.
All outstanding shares of Common Stock offered hereby will be fully paid and
nonassessable. The holders of Common Stock are entitled to one vote for each
share held of record on all matters voted upon by stockholders. Subject to
preferences that may be applicable to any outstanding shares of Preferred Stock,
each share of outstanding Common Stock is entitled to participate equally in any
distribution of net assets made to the stockholders in liquidation, dissolution
or winding up the Company and is entitled to participate equally in dividends as
and when declared by the Company's Board of Directors. There are no redemption,
sinking fund, conversion or preemptive rights with respect to the shares of
Common Stock. All shares of Common Stock have equal rights and preferences. The
transfer agent and registrar for the Common Stock
is __________________________________________.
PREFERRED STOCK
As of the date of this Prospectus, no shares of Preferred Stock were
issued or outstanding. The Board of Directors is authorized to fix or alter the
rights, preferences, privileges and restrictions of any wholly unissued series
of Preferred Stock, including the dividend rights, original issue price,
conversion rights, voting rights, terms of redemption, liquidation preferences
and sinking fund terms thereof, and the number of shares constituting any such
series and the designation thereof and to increase or decrease the number of
shares of such series subsequent to the issuance of shares of such series (but
not below the number of shares then outstanding).
CERTAIN ANTI-TAKEOVER, INDEMNIFICATION AND LIMITED LIABILITY PROVISIONS
The Company's Board of Directors may authorize the issuance of additional
shares of Common Stock or Preferred Stock without further action by the Company
shareholders, unless such action is required in a particular case by applicable
laws or regulation. The authority to issue additional Common Stock or Preferred
Stock provides the Company with the flexibility necessary to meet its future
needs without the delay resulting from seeking shareholder approval. The
unissued Common Stock or Preferred Stock may be issued from time to time for any
corporate
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purposes, including without limitation, stock splits, stock dividends, employee
benefit and compensation plans, acquisitions and public and private sales for
cash as a means of raising capital. Such shares could be used to dilute the
stock ownership of persons seeking to obtain control of the Company. In
addition, the sale of a substantial number of shares of Common Stock or
Preferred Stock to persons who have an understanding with the Company concerning
the voting of such shares, or the distribution or dividend of Common Stock or
Preferred Stock (or right to receive such shares) to the Company's shareholders,
may have the effect of discouraging or otherwise increasing the cost of
unsolicited attempts to acquire control of the Company. Further, because the
Company's Board has the power to determine the voting, conversion or other
rights of the Preferred Stock, the issuance of a series of Preferred Stock to
persons friendly to management could effectively discourage or preclude
consummation of a change in control transaction or have the effect of
maintaining the position of the Company's incumbent management. The Company does
not currently have any plans or commitments to use its authority to effect any
such issuance, but reserves the right to take any action that the Board of
Directors deems to be in the best interests of the Company and its shareholders.
The Company's Bylaws also contain provisions that provide that the Board
of Directors shall be divided into three classes as nearly equal in number as
the then total number of directors constituting the Board permits, with the
total of office of one class expiring each year. The classification of directors
has the effect of making it more difficult to change the composition of the
Board of Directors. At least two shareholder meetings, instead of one, is
required to effect a change in a majority of the Board. The Board believes that
the longer time required to elect a majority of a classified Board will help to
assure the continuity and stability of the Company's directors and policies in
the future, since a majority of the directors at any given time will have prior
experience as directors of the Company. The classification provision applies for
every election of directors, regardless of whether a change in the Board might
arguably be beneficial to the Company and its shareholders and whether or not a
majority of the Company's shareholders believes that such a change would be
desirable.
The Company is subject to several provisions under Florida law which may
deter or frustrate unsolicited attempts to acquire certain Florida corporations.
These statutes, commonly referred to as the "Control Share Act" and the "Fair
Price Act," apply to most public corporations organized in Florida unless the
corporation has specifically elected to opt out of such provisions. The Company
has not elected to opt out of these provisions. The Fair Price Act generally
requires that certain transactions between a public corporation and an affiliate
must be approved by two-thirds of the disinterested directors or shareholders
(not including those shares beneficially owned by an "interested shareholder").
The Control Share Act generally provides that shares of a public corporation
acquired in excess of certain specified thresholds will not posses any voting
rights unless such voting rights are approved by a majority vote of the
corporation's disinterested shareholders. These anti-takeover provisions of
Florida law could result in the Company being less attractive to a potential
acquiror and/or result on shareholders receiving less for their shares than
might otherwise might be available in the event an unsolicited takeover attempt.
The Florida Business Corporation Act authorizes a company to indemnify its
directors and officers in certain instances against certain liabilities which
they may incur by virtue of their relationship with the company. A company may
indemnify any director, officer, employee or agent against judgments, fines,
penalties, amounts paid in settlement, and expenses incurred in any pending,
threatened or completed civil, criminal, administrative, or investigative
proceeding (except an action by the company) against him in his capacity as a
director, officer, employee, or agent of the company, or another company if
serving in such capacity at the company's request if he (i) acted in good faith;
(ii) acted in a manner which he reasonably believed to be in or not opposed to
the best interests of the company; and (iii) with respect to a criminal action,
had no reasonable cause to believe his conduct was unlawful. Furthermore, a
company may indemnify any director, officer, agent or employee against expenses
incurred in defense or settlement of any proceeding brought by the company
against him in his capacity as a director, officer, employee or agent of the
company, or another company if serving in such capacity at the company's
request, if he:
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(i) acted in good faith; (ii) acted in a manner which he reasonably believed to
be in or not opposed to the best interests of the company; and (iii) is not
adjudged to be liable to the company (unless the court finds that he is
nevertheless reasonably entitled to indemnity for expenses which the court deems
proper). A company must repay the expenses of any director, officer, employee or
agent who is successful on the merits of an action against him in his capacity
as such.
A Florida company is authorized to make any other or further
indemnification or advancement of expenses of any of its directors, officers,
employees, or agents, except for acts or omissions which constitute (i) a
violation of the criminal law (unless the individual had reasonable cause to
believe it was lawful); (ii) a transaction in which the individual derived an
improper personal benefit; (iii) in the case of a director, a circumstance under
which certain liability provisions of the Florida Business Corporation Act are
applicable (related to payment of dividends or other distributions or
repurchases of shares in violation of such Act); or (iv) willful misconduct or a
conscious disregard for the best interest of the company in a proceeding by the
company, or a company shareholder. A Florida company also is authorized to
purchase and maintain liability insurance for its directors, officers, employees
and agents.
The Company's Articles of Incorporation and Bylaws provide that the
Company shall indemnify each of its directors and officers to the fullest extent
permitted by law, and that the indemnity will include advances for expenses and
costs incurred by such director or officer related to any action in regard to
which indemnity is permitted. At present, the Company maintains directors' and
officers' liability insurance covering its directors and officers against
expenses and liabilities arising from certain actions to which they may become
subject by reason of having served in such role. Such insurance is subject to
the coverage amounts, exceptions, deductibles and other conditions set forth in
the policy. There is no assurance that the Company will maintain liability
insurance for its directors and officers.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to Directors, officers, or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in such Act and is therefore unenforceable.
SHARES ELIGIBLE FOR FUTURE SALE
Upon completion of this offering, the Company expects to have 1,000,000
shares of its Common Stock outstanding. The 1,000,000 shares of the Company's
Common Stock purchased in this offering (plus any additional shares sold upon
the Underwriter's exercise of its over-allotment option) have been registered
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), and may generally be
resold without registration under the Securities Act unless they were acquired
by directors, executive officers, or other affiliates of the Company or the Bank
(collectively, "Affiliates"). Affiliates of the Company may generally only sell
shares of the Common Stock pursuant to the Commission's Rule 144.
In general, under Rule 144 as currently in effect, an affiliate (as
defined in Rule 144) of the Company may sell shares of Common Stock within any
three-month period in an amount limited to the greater of 1% of the outstanding
shares of the Company's Common Stock (10,000 shares immediately after the
completion of this offering) or the average weekly trading volume in the
Company's Common Stock during the four calendar weeks preceding such sale. Sales
under Rule 144 are also subject to certain manner-of-sale provisions, notice
requirements and the availability of current public information about the
Company.
The Company and the directors and officers of the Company and the Bank
(who are expected to hold an aggregate of approximately 74,000 shares after this
offering), have agreed, or will agree, that they will not issue, offer
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for sale, sell, grant any options for the sale of or otherwise dispose of any
shares of Common Stock or any rights to purchase shares of Common Stock, in the
open market or otherwise, without the prior written consent of the Underwriter
for a period of 180 days from the date of this Prospectus. Prior to this
offering, there has been no public trading market for the Common Stock, and no
predictions can be made as to the effect, if any, that sales of shares or the
availability of shares for sale will have on the prevailing market price of the
Common Stock after completion of this offering. Nevertheless, sales of
substantial amounts of Common Stock in the public market could have an adverse
effect on prevailing market prices.
UNDERWRITING
Subject to the terms and conditions contained in an Underwriting
Agreement, Robert W. Baird & Co. Incorporated, as Underwriter, has agreed to
purchase from the Company an aggregate of up to 1,000,000 shares of Common Stock
at the Price to Public less the Underwriting Discounts and Commissions set forth
on the cover page of this Prospectus.
The Underwriting Agreement provides that the Underwriter's obligation
thereunder is subject to approval of certain legal matters by its counsel and
various other conditions. The Underwriter is obligated to purchase all such
shares, excluding shares covered by the over-allotment option granted to the
Underwriter, if any are purchased.
The Company has been advised by the Underwriter that it proposes to offer
the Common Stock to the public at the initial public offering price set forth on
the cover page of this Prospectus and to certain dealers at such price, less a
concession not in excess of $0.825 per share. However, no underwriting discounts
or commissions will be assessed with respect to sales to certain investors
identified by the Company to the Underwriter, in writing, prior to the
effectiveness of the registration statement, and that the Underwriter and such
dealers may reallow a concession not in excess of $_________ per share to other
dealers. The public offering price and concessions and reallowances to dealers
may be changed by the Underwriter after the initial public offering.
Unless waived by the Company, shares of Common Stock will be sold to the
public only in minimum lots of 250 shares ($2,500) and any one investor
(together with the investor's affiliates) will be permitted to purchase a
maximum of 50,000 shares ($500,000). The Company reserves the right to refuse,
in whole or in part, any purchase of Common Stock for any reason whatsoever and
to allocate a lesser number of shares to the purchaser.
The Underwriter has informed the Company that it does not intend to
confirm sales of the shares of Common Stock offered hereby to any accounts over
which it exercises discretionary authority.
The Company has granted the Underwriter an option exercisable for 30 days
after the date of this Prospectus to purchase up to an aggregate of 150,000
additional shares of Common Stock to cover over-allotments, if any, at the same
price per share to be paid by the Underwriter for the other shares of Common
Stock offered hereby. The Underwriter may exercise such option only for the
purpose of covering any over-allotments of the 1,000,000 shares of Common Stock
offered hereby.
The Company, its directors and executive officers and those of the Bank
agreed or will agree with the Underwriter, for a period of 180 days after the
date of this Prospectus, not to issue, sell, offer to sell, grant any options
for the sale of, or otherwise dispose of any shares of Common Stock or any
rights to purchase shares of Common Stock, in the open market or otherwise,
without the prior written consent of the Underwriter.
The Underwriter has advised the Company that it presently intends to make
a market in the Common Stock after the commencement of the offering, but no
assurance can be made as to the liquidity of the Common Stock or that an
35
<PAGE> 39
active and liquid trading market will develop or, if developed, that it will be
sustained. The Underwriter will have no obligation to make a market in the
Common Stock, however, and may cause market-making activities, if commenced, to
cease at any time.
The Company and the Underwriter have agreed to indemnify, or to contribute
to payments made by, each other against civil liabilities, including civil
liabilities under the Securities Act.
There has been no public trading market for the Common Stock. The offering
price of $10 per share was determined by negotiations between the Company and
the Underwriter. This price is not based upon earnings or any history of
operations and should not be construed as indicative of the present or
anticipated future value of the Common Stock. Several factors were considered in
determining the initial offering price of the Common Stock, among them the size
of the offering, the desire that the security being offered be attractive to
individuals and the Underwriter's experience in dealing with initial public
offerings for financial institutions.
William H. Elett, an employee of the Underwriter, is one of the Bank's
organizers. In connection with Mr. Elett's advancement of funds to the Bank for
organization expenses, as well as anticipated shares to be purchased by him in
the offering, he could receive warrants to purchase up to 14,577 shares of the
Common Stock having an exercise price of $10.00 per share.
In connection with the offering of the Common Stock, the Underwriter and
any selling group members and their respective affiliates may engage in
over-allotment, stabilizing transactions, syndicate covering transactions, and
penalty bids effected in accordance with Rule 104 of the SEC's Regulation M.
Over-allotment is a transaction in which the Underwriter creates a short
position for its own account by selling more Common Stock than it is committed
to purchase from the Company. To cover all or part of a short position, the
Underwriter may exercise the over-allotment option described above or may
purchase Common Stock in the open market following completion of the initial
offering of the Common Stock. In stabilizing transactions, the Underwriter may
bid for, and purchase, shares of the Common Stock at a level above that which
might otherwise prevail in the open market for the purpose of preventing or
retarding a decline in the market price of the Common Stock. Syndicate covering
transactions involve purchases of Common Stock in the open market after the
distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the Underwriter to reclaim a selling concession from a
syndicate member when the Common Stock originally sold by such syndicate member
is purchased in a syndicate covering transaction to cover syndicate short
positions. Such over-allotment, stabilizing transactions, syndicate covering
transactions, and penalty bids may cause the price of the Common Stock to be
higher than it would otherwise be in the absence of such a transaction. The
Underwriter is required to engage in any of the foregoing transactions, and, if
commenced, may be discontinued at any time.
LEGAL PROCEEDINGS
Neither the Bank nor the Company is a party to any pending legal
proceeding. Management believes there is no litigation threatened in which the
Company or the Bank faces potential loss or exposure or which will materially
affect stockholders' equity or the Company's business or financial condition
upon completion of this offering.
LEGAL OPINIONS
The legality of the shares of Common Stock being offered hereby will be
passed upon for the Company by Smith, Mackinnon, Greeley, Bowdoin & Edwards,
P.A., Orlando, Florida. Holland & Knight LLP, Tampa, Florida
36
<PAGE> 40
is acting as counsel for the Underwriter in connection with certain legal
matters relating to the shares of Common Stock offered hereby.
EXPERTS
The financial statements of the Company included in this Prospectus have
been audited by Hill, Barth & King, Inc., independent public accountants, as
indicated in their report with respect thereto. Such financial statements have
been included herein and in the Registration Statement in reliance upon the
authority of said firm as experts in accounting and auditing in giving said
report.
ADDITIONAL INFORMATION
The Company has filed a Registration Statement with the Commission in
accordance with the provisions of the Securities Act. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and regulations of
the Commission. For further information pertaining to the shares of Common Stock
offered hereby and to the Company, reference is made to the Registration
Statement, including the Exhibits filed as a part thereof, copies of which can
be inspected at and copied at the prescribed rates at the Public Reference
Section of the Commission Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following Commission's regional offices: Northeast Regional
Office, 7 World Trade Center, Suite 1300, New York, New York, 10048; and Midwest
Regional Office, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. In addition, the Company is required to file electronic versions of
these documents with the Commission through the Commission's Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system. The Commission maintains a
World Wide Web site at http://www.sec.gov that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission.
37
<PAGE> 41
FINANCIAL STATEMENTS
GULF COAST BANCORP, INC.
(A Development Stage Company)
August 31, 1997
<TABLE>
<CAPTION>
CONTENTS
<S> <C>
Independent Auditors' Report......................................F-2
Balance Sheet ....................................................F-3
Statement of Operations ..........................................F-4
Statement of Shareholders Deficit ................................F-5
Statement of Cash Flows ..........................................F-6
Notes to Financial Statements ....................................F-7-9
</TABLE>
F-1
<PAGE> 42
Board of Directors
Gulf Coast Bancorp, Inc.
Naples, Florida
Independent Auditors' Report
We have audited the accompanying balance sheet of Gulf Coast Bancorp, Inc.
(the Company) as of August 31, 1997 and the related statements of operations,
shareholders deficit and cash flows for the period from May 1, 1997 (date of
inception) to August 31, 1997. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the financial position of Gulf Coast Bancorp, Inc. as
of August 31, 1997, and the results of its operations and its cash flows for
the period from May 1, 1997 (date of inception) to August 31, 1997 in
conformity with generally accepted accounting principles.
Hill, Barth & King, Inc.
Certified Public Accountants
Naples, Florida
September 18, 1997
F-2
<PAGE> 43
GULF COAST BANCORP, INC.
(A Development Stage Company)
BALANCE SHEET
August 31, 1997
<TABLE>
<CAPTION>
<S> <C> <C>
A S S E T S
Cash and due from banks $ 179,874
------------
TOTAL CASH AND CASH EQUIVALENTS 179,874
------------
Equipment - NOTE B 10,666
Deferred offering costs 2,100
Prepaid expenses 7,095
Other assets 25,175
------------
$ 224,910
============
LIABILITIES AND SHAREHOLDERS DEFICIT
Liabilities:
Advances from organizers - Note C $ 307,000
Accrued expenses and other liabilities 16,765
------------
TOTAL LIABILITIES 323,765
------------
Shareholders Deficit:
Preferred stock, no stated par,
2,000,000 shares authorized;
no shares issued and outstanding -
Common stock, par value $.01 per share,
10,000,000 shares authorized; 100 shares issued
and outstanding 1
Additional paid-in capital 999
Deficit accumulated during the development stage (99,855)
------------
TOTAL SHAREHOLDERS DEFICIT (98,855)
------------
$ 224,910
============
</TABLE>
See accompanying notes to financial statements
F-3
<PAGE> 44
GULF COAST BANCORP, INC.
(A Development Stage Company)
STATEMENT OF OPERATIONS
Period from May 1, 1997 (date of inception) to August 31, 1997
<TABLE>
<CAPTION>
INCOME
<S> <C>
Interest income $ 0
EXPENSES
Consulting fees 42,000
Professional fees 44,890
Other expenses 12,965
-----------
TOTAL EXPENSES 99,855
-----------
NET LOSS $ (99,855)
===========
</TABLE>
See accompanying notes to financial statements
F-4
<PAGE> 45
GULF COAST BANCORP, INC.
(A Development Stage Company)
STATEMENT OF SHAREHOLDERS DEFICIT
Period from May 1, 1997 (date of inception) to August 31, 1997
<TABLE>
<CAPTION>
Deficit
Accumulated
Additional During the
Common Paid-in Development
Stock Capital Stage Total
------ ---------- ----------- -----
<S> <C> <C> <C> <C>
Balance
May 1, 1997 $ 0 $ 0 $ 0 $ 0
Proceeds from
issuance of
common stock 1 999 0 1,000
Net loss 0 0 (99,855) (99,855)
------- ---------- ---------- ---------
Balance (deficit)
August 31, 1997 $ 1 $ 999 $ (99,855) $ (98,855)
======= ========== ========== =========
</TABLE>
See accompanying notes to financial statements
F-5
<PAGE> 46
GULF COAST BANCORP, INC.
(A Development Stage Company)
STATEMENT OF CASH FLOWS
Period from May 1, 1997 (date of inception) to August 31, 1997
<TABLE>
<CAPTION>
<S> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (99,855)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation 288
Increase in prepaid expenses (7,095)
Increase in other assets (27,275)
Increase in accounts payable 16,765
----------
NET CASH USED IN OPERATING ACTIVITIES (117,172)
----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of equipment (10,954)
----------
NET CASH USED IN INVESTING ACTIVITIES (10,954)
----------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from issuance of common stock 1,000
Proceeds from organizer advances 307,000
----------
NET CASH PROVIDED BY FINANCING ACTIVITIES 308,000
----------
NET INCREASE IN CASH AND CASH EQUIVALENTS 179,874
CASH AND CASH EQUIVALENTS
Beginning of period 0
----------
End of period $ 179,874
==========
</TABLE>
See accompanying notes to financial statements
F-6
<PAGE> 47
GULF COAST BANCORP, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS
August 31, 1997
NOTE A - ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Organization:
Gulf Coast Bancorp, Inc. (the Company) was incorporated under the laws of
the state of Florida on August 7, 1997 with an initial capitalization of
$1,000. The company is the successor entity to Gulf Coast Community Partners,
organized on May 1, 1997 as a general partnership. The Company's activities to
date have been limited to the organization of Gulf Coast Community Bank,
National Association (the Bank), as well as preparation for a $10,000,000
common stock offering (the Offering). A substantial portion of the proceeds of
the Offering will be used by the Company to provide the initial capitalization
of the Bank. The start-up of the Bank is contingent upon receiving the approval
of various banking regulatory authorities and also a successful completion of
the Offering.
Nature of Business:
The Bank intends to offer a full range of commercial and consumer banking
services primarily within the Port Charlotte and Punta Gorda, Florida area.
Use of Estimates:
The preparation of financial statements, in conformity with generally
accepted accounting principles, requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Cash and Cash Equivalents:
Cash, demand balances due from banks and interest bearing deposits in
banks are considered cash and cash equivalents for cash flow reporting
purposes.
Deferred Offering Costs:
Deferred offering costs consist of legal and accounting fees related to
the initial public stock offering and will be offset against the offering
proceeds when received.
F-7
<PAGE> 48
GULF COAST BANCORP, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
August 31, 1997
<TABLE>
<CAPTION>
NOTE B - EQUIPMENT
<S> <C>
Equipment at August 31, 1997 consists of the following:
EDP equipment $ 9,393
Construction in progress 1,561
--------
10,954
Less accumulated depreciation 288
--------
TOTAL $ 10,666
========
</TABLE>
Depreciation is computed on the straight-line method over the estimated
useful lives of the depreciable assets. Depreciation expense was $288 for the
period ended August 31, 1997.
NOTE C - ADVANCES FROM ORGANIZERS
The Company arranged a series of advances from certain individual
organizers in the aggregate amount of $307,000 to pay organizational and
pre-opening expenses for the Bank and the Company. The foregoing advances bear
no interest and will be converted into the Company's common stock on the
closing date of the Offering. In the event that the Bank's charter is denied,
each Organizer will receive back only their pro rata share of monies remaining
in the organization expense account after all organizing expenses and expenses
related to closing down the organizational project are paid.
NOTE D - COMMITMENTS AND CONTINGENCIES
The Company has committed to lease a temporary facility to house its main
office location. The proposed lease has a term of one year with the option to
renew on a month-to-month basis at the current market rate; to begin on the
earlier of February 1, 1998 or 60 days from the date preliminary OCC approval
is obtained. The aggregate annual lease payment is $45,000 plus applicable
sales tax. The Company has also entered into a short-term lease for office
space to conduct its activities during the development stage. The lease has a
term of six months ending November 30, 1997 with the option for one 3-month
renewal period.
The Company has entered into a contract to purchase 1.09 acres of land for
$875,000 to be used to build the Banks permanent facility; closing to occur
within 15 days of receiving FDIC and OCC approval but in any event no later
than January 30, 1998.
F-8
<PAGE> 49
GULF COAST BANCORP, INC.
(A Development Stage Company)
NOTES TO FINANCIAL STATEMENTS (CONTINUED)
August 31, 1997
NOTE E - STOCK OPTIONS AND WARRANTS
The Board of Directors of the Company has reserved 125,000 shares of
common stock for issuance under an Incentive Stock Option Plan. The Board has
designated 60,000 of these shares for options to be granted to various
executive officers upon the execution of their respective employment
agreements. The shares are exercisable at $10.00 per share and in increments of
10% of the number of shares subject to the Option on each anniversary of the
date of grant until all shares subject to the Option have become exercisable,
with 10% of the shares becoming exercisable on the date of the grant.
The Board of Directors of the Company have also agreed to grant Stock
Purchase Warrants in consideration of the Organizers efforts in organizing the
Company and the Bank. The Company intends to issue warrants to purchase 0.34
shares of Common Stock for each share of Common Stock purchased by each
organizer from the Offering. The Warrants will vest in equal increments of 25%
commencing on the date of grant and on each anniversary date thereafter until
fully vested. Warrants may be exercised in whole or in part for $10.00 per
share beginning on the date of grant and expiring 10 years after the grant
date. The Company has reserved 96,443 shares of its Common Stock for issuance
thereunder.
NOTE F - SUBSEQUENT EVENT
Subsequent to the balance sheet date, the Company obtained additional
advances from certain organizers in the aggregate amount of $58,835 to pay
additional expenses for the Bank and the Company. Terms of these advances are
the same as those previously disclosed in Note C.
F-9
<PAGE> 50
===============================================================================
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE
INFORMATION OR MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFER MADE IN THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIEF UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THE
INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF THIS
PROSPECTUS.
--------------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Prospectus Summary.........................................
Risk Factors...............................................
Recent Developments .......................................
Use of Proceeds............................................
Dividend Policy............................................
Capitalization.............................................
Business...................................................
Management.................................................
Certain Transactions.......................................
Principal Stockholders.....................................
Supervision and Regulation.................................
Description of Capital Stock...............................
Shares Eligible for Future Sale............................
Underwriting...............................................
Legal Proceedings..........................................
Legal Opinions.............................................
Experts....................................................
Additional Information.....................................
Index to Financial Statements...........................F-1
</TABLE>
--------------------
UNTIL ___________, 199__, ALL DEALERS EFFECTING TRANSACTIONS IN THE COMMON
STOCK, WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO
DELIVER A PROSPECTUS. THIS DELIVERY REQUIREMENT IS IN ADDITION TO THE
OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS AND
WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
===============================================================================
1,000,000 SHARES
GULF COAST BANCORP, INC.
COMMON STOCK
--------------
PROSPECTUS
-------------
ROBERT W. BAIRD & CO.
INCORPORATED
______________, 199__
===============================================================================
<PAGE> 51
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0850, Florida Statutes, grants a corporation the power to
indemnify its directors, officers, employees, and agents for various expenses
incurred resulting from various actions taken by its directors, officers,
employees, or agents on behalf of the corporation. In general, if an individual
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the action
was unlawful, then the corporation has the power to indemnify said individual
who was or is a party to any proceeding (including, in the absence of an
adjudication of liability (unless the court otherwise determines), any
proceeding by or in the right of the corporation) against liability expenses,
including counsel fees, incurred in connection with such proceeding, including
any appeal thereof (and, as to actions by or in the right of the corporation,
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the proceeding
to conclusion, actually and reasonably incurred in connection with the defense
or settlement of such proceeding, including any appeal thereof). To the extent
that a director, officer, employee, or agent has been successful on the merits
or otherwise in defense of any proceeding, he shall be indemnified against
expenses actually and reasonably incurred by him in connection therewith. The
term "proceeding" includes any threatened, pending, or completed action, suit,
or other type of proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
Any indemnification in connection with the foregoing, unless pursuant to
a determination by a court, shall be made by the corporation upon a
determination that indemnification is proper in the circumstances because the
individual has met the applicable standard of conduct. The determination shall
be made (i) by the board of directors by a majority vote of a quorum consisting
of directors who are not parties to such proceeding; (ii) by majority vote of a
committee duly designated by the board of directors consisting solely of two or
more directors not at the time parties to the proceeding; (iii) by independent
legal counsel selected by the board of directors or such committee; or (iv) by
the shareholders by a majority vote of a quorum consisting of shareholders who
are not parties to such proceeding. Evaluation of the reasonableness of
expenses and authorization of indemnification shall be made in the same manner
as the determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel, then the
directors or the committee shall evaluate the reasonableness of expenses and
may authorize indemnification. Expenses incurred by an officer or director in
defending a civil or criminal proceeding may be paid by the corporation in
advance of the final disposition of the proceeding upon receipt of an
undertaking by or on behalf of the director or officer to repay such amount if
he is ultimately found not to be entitled to indemnification by the
corporation. Expenses incurred by other employees and agents may be paid in
advance upon such terms or conditions that the board of directors deems
appropriate.
Section 607.0850 also provides that the indemnification and advancement of
expenses provided pursuant to that Section are not exclusive, and a corporation
may make any other or further indemnification or advancement of expenses of any
of its directors, officers, employees, or agents, under any bylaw, agreement,
vote of shareholders or disinterested directors, or otherwise, both as to
action in his official capacity and as to action in another capacity while
holding such office. However, indemnification or advancement of expenses may
not be made if a judgment or other final adjudication established that the
individual's actions, or omissions to act, were material to the cause of action
so adjudicated and constitute (i) a violation of the criminal law (unless the
individual had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful); (ii) a transaction from
which the individual derived an improper personal benefit; (iii) in the case of
a director, a circumstance under which the liability provisions of Section
607.0834 are applicable; or (iv) willful misconduct or a conscious disregard
for the
II-1
<PAGE> 52
best interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor in a proceeding by or in the
right of a shareholder. Indemnification and advancement of expenses shall
continue as, unless otherwise provided when authorized or ratified, to a person
who has ceased to be a director, officer, employee, or agent and shall inure to
the benefit of the heirs, executors, and administrators of such person, unless
otherwise provided when authorized or ratified.
Section 607.0850 further provides that unless the corporation's articles
of incorporation provide otherwise, then notwithstanding the failure of a
corporation to provide indemnification, and despite any contrary determination
of the board or of the shareholders in the specific case, a director, officer,
employee, or agent of the corporation who is or was a party to a proceeding may
apply for indemnification or advancement of expenses, or both, to the court
conducting the proceeding, to the circuit court, or to another court of
competent jurisdiction. On receipt of an application, the court, after giving
any notice that it considers necessary, may order indemnification and
advancement of expenses, including expenses incurred in seeking court-ordered
indemnification or advancement of expenses, if it determines that (i) the
individual is entitled to mandatory indemnification under Section 607.0850 (in
which case the court shall also order the corporation to pay the director
reasonable expenses incurred in obtaining court-ordered indemnification or
advancement of expenses); (ii) the individual is entitled to indemnification or
advancement of expenses, or both, by virtue of the exercise by the corporation
of its power under Section 607.0850; or (iii) the individual is fairly and
reasonably entitled to indemnification or advancement of expenses, or both, in
view of all the relevant circumstances, regardless of whether the person met
the standard of conduct set forth in Section 607.0850. Further, a corporation
is granted the power to purchase and maintain indemnification insurance.
Article VI of the Company's Articles of Incorporation and Article VI of
the Company's Bylaws provide for indemnification of the Company's officers and
directors and advancement of expenses. The text of the indemnification
provisions contained in the Company's Articles and Bylaws is set forth in
Exhibits 3.1 and 3.2, respectively, to this Registration Statement. Among other
things, indemnification is granted to each person who is or was a director,
officer or employee of the Company and each person who is or was serving at the
request of the Company as a director, officer or employee of another
corporation to the full extent authorized by law. Article VI of the Company's
Bylaws also sets forth certain conditions in connection with any advancement of
expenses and provision by the Company of any other indemnification rights and
remedies. The Company also is authorized to purchase insurance on behalf of any
person against liability asserted whether or not the Company would have the
power to indemnify such person under the Bylaws. Pursuant to such authority,
the Company has purchased directors and officers liability insurance although
there is no assurance that the Company will maintain such insurance or, if so,
the amount of insurance that it will so maintain.
Pursuant to the Underwriting Agreement, the Company and the Underwriters
have agreed to indemnify each other under certain circumstances and conditions
against and from certain liabilities, including liabilities under the
Securities Act of 1933, as amended. Reference is made to Section ___ of the
Underwriting Agreement filed as Exhibit 1.1 hereto.
II-2
<PAGE> 53
<TABLE>
<CAPTION>
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<S> <C> <C>
SEC Registration Fee.............................. $ 3,485
NASD Filing Fee................................... 1,650
Transfer Agent and Registration Fees.............. 4,000
Printing and Engraving Expenses................... 45,000
Accounting Fees and Expenses...................... 15,000
*
Legal Fees and Expenses........................... -------
Blue Sky Fees and Expenses........................ 35,000
Miscellaneous..................................... =======
Total......................................... $
=======
</TABLE>
- ------------------------
* To be furnished by amendment
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
On August 8, 1997, the Company issued 100 shares of Common Stock to its
Chief Executive Officer and President solely to facilitate the organization of
the Company. The foregoing sale of Common Stock by the Company was exempt from
the registration requirements of the Securities Act by operation of Section
4(2) thereof, the provision which exempts private offerings. No underwriter or
independent selling agent was used and no compensation or commission were paid
in connection with the sale of Common Stock.
II-3
<PAGE> 54
<TABLE>
<CAPTION>
ITEM 27. EXHIBITS
EXHIBIT
(a) NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
<S> <C> <C> <C>
1.1 - Form of Underwriting Agreement*
3.1 - Articles of Incorporation
3.2 - Bylaws
4.1 - See Exhibits 3.1 and 3.2 for provisions of the Articles of
Incorporation and Bylaws of the Company defining rights of holders
of the Company's Common Shares.
4.2 - Specimen Common Stock Certificate
5 - Form of Legal Opinion of Smith, Mackinnon, Greeley, Bowdoin &
Edwards, P.A. with respect to the validity of the Common Stock
being offered hereby
10.1 - 1997 Stock Option Plan and Form of Stock Option Agreement
10.2 - Form of Employment Agreement to be entered into
between the Company and Lewis S. Albert
10.3 - Form of Employment Agreement to be entered into
between the Company and Todd H. Katz
10.4 - Financial Facilities Lease Agreement dated August 6, 1997 between
the Company and SON Corporation
10.5 - Form of Stock Purchase Warrant
10.6 - Real Estate Sales Agreement dated August 6, 1997 between GMRI,
Inc. and the Company
10.7 - Preorganization Agreement and Amendment thereto between Company
Organizers*
21 - List of subsidiaries of the Company
23.1 - Consent of Hill, Barth & King, Inc.
23.2 - Consent of Smith, Mackinnon, Greeley, Bowdoin & Edwards, P.A.
(included in Exhibit 5)
24 - Power of Attorney (contained in the Signature Section of the
Registration Statement)
27 - Financial Data Schedule (for SEC use only)
</TABLE>
- ---------------------------
* To be filed by Amendment
II-4
<PAGE> 55
ITEM 28. UNDERTAKINGS
The Registrant will provide to the Underwriter at the closing specified in
the underwriting agreement certificates in such denominations and registered in
such names as required by the underwriter to permit prompt delivery to each
purchaser.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any
action, suit, or proceeding) is asserted by such director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of prospectus filed as part of the
Registration Statement in reliance on Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Act shall be deemed part of the Registration Statement as of the time
it was declared effective; and
(2) For purposes of determining liability under the Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-5
<PAGE> 56
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form SB-2 and authorized this
Registration Statement to be signed in its behalf by the undersigned, in the
City of Port Charlotte, State of Florida, on November 3, 1997.
GULF COAST BANCORP, INC.
/s/ Lewis S. Albert
--------------------------------
Lewis S. Albert
Chairman and Chief Executive Officer
/s/ Todd H. Katz
--------------------------------
Todd H. Katz, Vice Chairman and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Lewis S. Albert and Todd H. Katz, and
each or any one of them, his true and lawful attorneys-in-fact and agents with
full power of substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents and each of them, full power and authority to do and perform each
and every act and thing, requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
II-6
<PAGE> 57
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Lewis S. Albert Chairman of the Board, Chief November 3, 1997
- ------------------------------ Executive Officer and Director
Lewis S. Albert (Principal Financial Officer and
Principal Accounting Officer)
/s/ Todd H. Katz Vice Chairman of the Board, November 3, 1997
- ------------------------------ President, and Director
/s/ Mark O. Asperilla, M.D. Director November 3, 1997
- ------------------------------
Mark O. Asperilla, M.D.
/s/ James R. Baker Director November 3, 1997
- ------------------------------
James R. Baker
/s/ Billie A. Barger Director November 3, 1997
- ------------------------------
Billie A. Barger
/s/ James C. Brown Director November 3, 1997
- ------------------------------
James C. Brown
/s/ Gerald P. Flagel, CPA, JD Director November 3, 1997
- ------------------------------
Gerald P. Flagel, CPA, JD
/s/ Gina D. Hahn Director November 3, 1997
- ------------------------------
Gina D. Hahn
/s/ Larry A. Tensbusch Director November 3, 1997
- ------------------------------
Larry A. Tensbusch
</TABLE>
II-7
<PAGE> 1
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
GULF COAST BANCORP, INC.
Pursuant to the provisions of Section 607, Florida Statutes, the corporation
adopts the following articles of incorporation:
ARTICLE I NAME
The name of this corporation shall be Gulf Coast Bancorp, Inc.
ARTICLE II COMMENCEMENT & DURATION
The commencement of this corporation's existence shall be at the time
of the filing of these Articles of Incorporation by the Florida Department of
State. This corporation's duration shall be perpetual.
ARTICLE III PURPOSES, POWERS & RIGHTS
The corporation may engage in any lawful acts or activities for which
corporations may be organized under the laws of the State of Florida.
In furtherance of its corporate purposes, this corporation shall have
all of the general and specific powers and rights granted to and conferred on a
corporation by the laws of the State of Florida, including the power and right:
A. To change the Articles of Incorporation at any time
pursuant to law and the By-Laws;
Articles of Incorporation of Gulf Coast Bancorp, Inc.
Page 1
<PAGE> 2
B. To change the principal office of the corporation
and establish, from time to time, other locations,
within or outside the State of Florida for corporate
operations, pursuant to the By-Laws, and without the
necessity of amending the Articles of Incorporation;
C. To invest the funds of this corporation in real
estate, mortgages, stocks, bonds, or any other type
of investment, and to own real and personal property
necessary for the conduct of its business;
D. To purchase and acquire, in accordance with law and
the By-Laws, any or all of its shares.
ARTICLE IV CAPITAL STOCK
A. This corporation shall have the authority to issue
TEN MILLION (10,000,000) shares of common stock par
value ONE CENT ($.01) per share. The designations,
voting powers, preferences and relative
participating options or other special rights,
qualifications, limitations or restrictions of the
above stock are as follows:
1. The holders of the common stock are
entitled to receive, to the extent
permitted by law, such dividends as may be
declared from time to time by the Board of
Directors.
2. In the event of the voluntary or
involuntary liquidation, dissolution,
distribution of assets or winding up of the
corporation, after distribution in full of
the preferential amounts, if any, to be
distributed to the creditors and holders of
shares of preferred stock, if any such
stock shall be authorized
Articles of Incorporation of Gulf Coast Bancorp, Inc.
Page 2
<PAGE> 3
herein and issued, the holders of common
stock shall be entitled to receive all of
the remaining assets of the corporation of
whatever kind available for distribution to
shareholders, ratably in proportion to the
number of shares of common stock held by
them respectively. The Board of Directors
may distribute in kind to the holders of
common stock such remaining assets of the
corporation or may sell, transfer or
otherwise dispose of all or any part of
such remaining assets to any other person,
corporation, trust or other entity and
receive payment therefore in cash, stock or
obligations of such other person,
corporation, trust or other entity, or any
combination thereof, and may sell all or
any part of the consideration so received
and distribute any balance thereof in kind
to holders of common stock. The merger or
consolidation of the corporation into or
with any other corporation, or the merger
of any other corporation into it, or any
purchase or redemption of shares of stock
of the corporation of any class, shall not
be deemed to be a dissolution, liquidation
nor winding up of the corporation for the
purposes of this paragraph.
3. Any person, upon becoming the owner or
holder of any shares of the common stock or
other securities having voting rights
issued by this corporation ("shareholder"),
does hereby consent and agree that all
rights, powers, privileges, obligations or
restrictions pertaining to such person or
such securities in any way may be altered,
amended, restricted, enlarged,
Articles of Incorporation of Gulf Coast Bancorp, Inc.
Page 3
<PAGE> 4
or repealed by legislative enactments of
the State of Florida, or of the United
States hereinafter adopted which have
reference to or affect corporations, such
securities, or such persons, if any, and
that the corporation reserves the right to
transact any business of the corporation,
to alter, amend or repeal these Articles of
Incorporation, or to do any other acts or
things as authorized, permitted or allowed
by such legislative enactments.
B. This corporation shall have the authority to issue
TWO MILLION (2,000,000) shares of preferred stock,
the par value of which, as well as the designations,
voting powers, preferences and relative
participating options or other special rights,
qualifications, limitations or restrictions of the
preferred stock to be determined by the Board of
Directors of this corporation at the time it
authorizes the issues of said preferred stock.
ARTICLE V BOARD OF DIRECTORS
The number of directors of this corporation shall be set from time to
time by this corporation's Board of Directors and shall be no less than two (2)
and no more than twenty-two (22).
The business and affairs of the Corporation shall be managed by the
Board of Directors. In addition to any powers conferred herein or in the
By-Laws, the Board of Directors may, subject to any express limitation
contained in these Articles of Incorporation or in the By-Laws, exercise the
full extent of powers conferred by the laws of the State of Florida upon
corporations or
Articles of Incorporation of Gulf Coast Bancorp, Inc.
Page 4
<PAGE> 5
directors thereof and the enumeration and definition of particular powers
herein or in the By-Laws shall in no way be deemed or restrict or otherwise
limit those lawfully conferred powers. In furtherance and without limitation of
the foregoing, the Board of Directors shall have the power to make, alter,
amend or repeal from time to time the By-Laws of the Corporation and to
authorize the issuance, on such terms and conditions as it may determine, any
or all shares of common or preferred stock authorized by these Articles of
Incorporation to be issued by this corporation.
ARTICLE VI INDEMNIFICATION
This corporation shall indemnify any officer, director, employee, or
agent, and any former officer, director, employee, or agent, to the full extend
permitted by law.
ARTICLE VII PRINCIPAL OFFICE &
REGISTERED OFFICE & AGENT
The address of this corporation's principal office shall be 4055
Tamiami Trail, Suite A-6, Port Charlotte, Florida 33952. The name and address
of this corporation's registered agent shall be: Todd H. Katz, 4055 Tamiami
Trail, Suite A-6, Port Charlotte, Florida 33952.
ARTICLE VIII AMENDMENT
This corporation reserves the right to amend or repeal any provisions
in these Articles of Incorporation, or any amendments hereto, in the manner now
or hereafter prescribed by statute. Any rights conferred upon the shareholders
are granted subject to this reservation.
Articles of Incorporation of Gulf Coast Bancorp, Inc.
Page 5
<PAGE> 6
IN WITNESS WHEREOF, THE UNDERSIGNED INCORPORATORS EXECUTE THESE
ARTICLES OF INCORPORATION ON THE DATE INDICATED:
August 1, 1997
- ------------------------------------------
Lewis S. Albert
August 1, 1997
- ------------------------------------------
Todd H. Katz
I hereby accept my designation as resident agent and agree to serve as
the resident agent of Gulf Coast Bancorp, Inc. I hereby state that I am
familiar with and accept the duties and responsibilities as registered agent
for Gulf Coast Bancorp, Inc.
- ------------------------------------------ August 1, 1997
Todd H. Katz, Registered Agent
Articles of Incorporation of Gulf Coast Bancorp, Inc.
Page 6
<PAGE> 1
EXHIBIT 3.2
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
BYLAWS
OF
GULF COAST BANCORP, INC.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Caption Page
- ------- ------- ----
<S> <C> <C>
ARTICLE I - Meeting of Shareholders............................................ 1
Section 1 Annual Meeting................................................................. 1
Section 2 Special Meetings............................................................... 1
Section 3 Place.......................................................................... 1
Section 4 Notice of Meeting.............................................................. 1
Section 5 Notice of Adjourned Meetings................................................... 2
Section 6 Waiver of Notice............................................................... 2
Section 7 Record Date.................................................................... 2
Section 8 Shareholders' List for Meeting................................................. 2
Section 9 Voting Entitlement of Shares................................................... 3
Section 10 Proxies........................................................................ 3
Section 11 Shareholder Quorum and Voting.................................................. 4
Section 12 Voting Trusts.................................................................. 4
Section 13 Shareholders' Agreements....................................................... 4
ARTICLE II - Directors......................................................... 5
Section 1 General Powers................................................................. 5
Section 2 Qualifications of Directors.................................................... 5
Section 3 Number......................................................................... 5
Section 4 Election and Term.............................................................. 5
Section 5 Vacancy on Board............................................................... 5
Section 6 Removal of Directors by Shareholders........................................... 5
Section 7 Compensation................................................................... 6
Section 8 Presumption of Assent.......................................................... 6
Section 9 Directors' Meetings............................................................ 6
Section 10 Notice of Meetings............................................................. 6
Section 11 Waiver of Notice............................................................... 6
Section 12 Quorum and Voting.............................................................. 6
Section 13 Action by Directors Without a Meeting.......................................... 6
Section 14 Adjournments................................................................... 7
Section 15 Participation by Conference Telephone.......................................... 7
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Section Caption Page
- ------- -------- ----
<S> <C> <C>
ARTICLE III - Committees....................................................... 7
Section 1 Standing Committees............................................................ 7
Section 2 Audit Committee................................................................ 7
Section 3 Compensation Committee......................................................... 7
Section 4 Other Committees............................................................... 7
Section 5 Alternate Member Vacancies..................................................... 8
Section 6 Prohibited Committee Actions................................................... 8
Section 7 Tenure........................................................................ 9
Section 8 Meetings...................................................................... 9
Section 9 Quorum........................................................................ 9
Section 10 Action Without a Meeting...................................................... 9
Section 11 Procedures.................................................................... 9
Section 12 Limitation.................................................................... 9
ARTICLE IV - Officers.......................................................... 10
Section 1 Officers, Election and Terms of Office......................................... 10
Section 2 Resignation and Removal of Officers............................................ 10
Section 3 Vacancies...................................................................... 10
Section 4 Chief Executive Officer........................................................ 10
Section 5 Chairman of the Board.......................................................... 11
Section 6 Vice Chairman.................................................................. 11
Section 7 President...................................................................... 11
Section 8 Vice President................................................................. 11
Section 9 Secretary...................................................................... 12
Section 10 Treasurer...................................................................... 12
Section 11 Delegation of Duties........................................................... 13
ARTICLE V - Stock Certificates................................................. 13
Section 1 Issuance....................................................................... 13
Section 2 Signatures; Form............................................................... 13
Section 3 Transfer of Stock.............................................................. 13
Section 4 Lost Certificates.............................................................. 14
ARTICLE VI - Indemnification................................................... 14
Section 1 Definitions.................................................................... 14
Section 2 Indemnification of Officers, Directors, Employees
and Agents................................................................. 15
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Section Caption Page
- ------- ------- ----
<S> <C>
ARTICLE VII - General Provisions............................................... 18
Section 1 Fiscal Year.................................................................... 18
Section 2 Seal........................................................................... 18
Section 3 Amendment of Bylaws............................................................ 18
CERTIFICATE OF ADOPTION...................................................... 19
</TABLE>
iii
<PAGE> 5
BYLAWS
OF
GULF COAST BANCORP, INC.
ARTICLE I
Meeting of Shareholders
Section 1. Annual Meeting. The annual meeting of the
shareholders of the Corporation shall be held following the end of the
Corporation's fiscal year at such time as shall be determined by the Board of
Directors. The annual meeting shall be held for the election of directors of
the Corporation and the transaction of any business which may be brought before
the meeting. The annual meeting of the shareholders for any year shall be held
no later than thirteen months after the last preceding annual meeting of
shareholders. The failure to hold the annual meeting at the time stated shall
not affect the validity of any corporate action and shall not work a forfeiture
of or dissolution of the Corporation. Annual meetings shall be held at the
Corporation's principal office unless stated otherwise in the notice of the
annual meeting.
Section 2. Special Meetings. Special meetings of the
shareholders shall be held when directed by the Chairman of the Board, the
President, or the Board of Directors, or when requested in writing by the
holders of not less than one-third of all the votes entitled to be cast on any
issue proposed to be considered at the proposed special meeting. Shareholders
should sign, date, and deliver to the Corporation's Secretary one or more
written demands for the meeting describing the purpose or purposes for which it
is to be held. A meeting requested by shareholders shall be called for a date
not less than ten nor more than sixty days after the request is made. The call
for the meeting shall be issued by the Secretary, unless the Chairman of the
Board, the President, the Board of Directors, or shareholders requesting the
calling of the meeting shall designate another person to do so.
Section 3. Place. Meetings of shareholders may be held either
within or without the State of Florida. Unless otherwise directed by the Board
of Directors, meetings of the shareholders shall be held at the principal
offices of the Corporation in the State of Florida.
Section 4. Notice of Meeting. The Corporation shall notify
shareholders in writing of the date, time, and place of each annual and special
shareholders' meeting no fewer than ten or more than sixty days before the
meeting date. Notice of a shareholders' meeting may be communicated or
delivered to any shareholder in person, or by teletype, telegraph or other form
of electronic communication, or by mail, by or at the direction of the Chairman
of the Board, the President, the Secretary, or the officer or persons calling
the meeting. If notice is mailed, it shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at his
address as it appears on the stock transfer books of the Corporation, with
postage thereon prepaid.
<PAGE> 6
Section 5. Notice of Adjourned Meetings. When an annual or
special shareholders' meeting is adjourned to a different date, time or place,
notice need not be given of the new date, time or place if the new date, time
or place is announced at the meeting before an adjournment is taken, and any
business may be transacted at the adjourned meeting that might have been
transacted on the original date of the meeting. If, however, after the
adjournment the Board of Directors fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting must be given to persons who are
shareholders as of the new record date who are entitled to notice of the
meeting.
Section 6. Waiver of Notice. A shareholder may waive any
notice required by the Articles of Incorporation or Bylaws before or after the
date and time stated in the notice. The waiver must be in writing, be signed by
the shareholder entitled to the notice, and be delivered to the Corporation for
inclusion in the minutes or filing with the corporate records. Attendance by a
shareholder at a meeting waives objection to lack of notice or defective notice
of the meeting, unless the shareholder at the beginning of the meeting objects
to holding the meeting or transacting business at the meeting.
Section 7. Record Date. For the purpose of determining the
shareholders entitled to notice of a shareholders' meeting, to demand a special
meeting, to vote, or to take any other action, the Board of Directors may fix
the record date for any such determination of shareholders.
The record date for determining shareholders entitled to
demand a special meeting is the date the first shareholder delivers his demand
to the Corporation. The record date for determining shareholders entitled to
take action without a meeting is the date the first signed written consent is
delivered to the Corporation under Section 4 of this Article. A record date for
purposes of this Section may not be more than seventy days before the meeting
or action requiring a determination of shareholders.
If the stock transfer books are not closed and no record date
is fixed for the determination of shareholders entitled to notice or to vote at
a meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
shareholders.
When a determination of shareholders entitled to vote at any
meeting of shareholders has been made as provided in this Section, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date for the adjourned meeting.
Section 8. Shareholders' List for Meeting. After fixing a
record date for a meeting, the Corporation shall prepare an alphabetical list
of the names of all its shareholders who are entitled to notice of a
shareholders' meeting, arranged by voting group with the address of,
2
<PAGE> 7
and the number and class and series, if any, of shares held by each. The
shareholders' list shall be available for inspection by any shareholder for a
period of ten days prior to the meeting or such shorter time as exists between
the record date and the meeting and continuing through the meeting at the
Corporation's principal office, at a place identified in the meeting notice in
the city where the meeting will be held, or at the office of the Corporation's
transfer agent or registrar. A shareholder or his agent or attorney is entitled
on written demand to inspect the list, during regular business hours and at the
shareholder's expense, during the period it is available for inspection.
The Corporation shall make the shareholders' list available
at the meeting, and any shareholder or his agent or attorney is entitled to
inspect the list at any time during the meeting or any adjournment.
Section 9. Voting Entitlement of Shares. Except as provided
otherwise in the Articles of Incorporation or herein, each outstanding share,
regardless of class, is entitled to one vote on each matter submitted to vote
at a meeting of the shareholders. Shares standing in the name of another
corporation, domestic or foreign, may be voted by such officer, agent, or proxy
as the bylaws of the corporate shareholder may prescribe or, in the absence of
any applicable provision, by such person as the board of directors of the
corporate shareholder may designate. In the absence of any such designation or
in case of conflicting designation by the corporate shareholder, the Chairman
of the Board, the President, any Vice President, the Secretary, and the
Treasurer of the corporate shareholder, in that order, shall be presumed to be
fully authorized to vote such shares.
Shares entitled to vote which are held by an administrator,
executor, guardian, personal representative, or conservator may be voted by
him, either in person or by proxy, without a transfer of such shares into his
name. Shares standing in the name of a trustee may be voted by him, either in
person or by proxy, but no trustee shall be entitled to vote shares held by him
without a transfer of such shares into his name or the name of his nominee.
Shares held by or under the control of a receiver, a trustee
in bankruptcy proceedings, or an assignee for the benefit of creditors may be
voted by him without the transfer thereof into his name.
Nothing herein contained shall prevent trustees or other
fiduciaries holding shares registered in the name of a nominee from causing
such shares to be voted by such nominee as the trustee or other fiduciary may
direct. Such nominee may vote shares as directed by a trustee or other
fiduciary without the necessity of transferring the shares to the name of the
trustee or other fiduciary.
Section 10. Proxies. A shareholder, other person entitled
to vote on behalf of a shareholder pursuant to law, or attorney in fact, may
vote the shareholder's shares in person or by proxy.
3
<PAGE> 8
A shareholder may appoint a proxy to vote or otherwise act
for him by signing an appointment form, either personally or by his attorney in
fact. An executed telegram or cablegram appearing to have been transmitted by
such person, or a photographic, photostatic, telecopy or equivalent
reproduction of an appointment form is a sufficient appointment form. An
appointment of a proxy is effective when received by the Secretary or other
officer authorized to tabulate votes and is valid for up to eleven months
unless a longer period is expressly provided in the appointment form.
The death or incapacity of a shareholder appointing a proxy
does not affect the right of the Corporation to accept the proxy's authority
unless notice of the death or incapacity is received by the Secretary or other
officer or agent authorized to tabulate votes before the proxy exercises his
authority under the appointment.
Section 11. Shareholder Quorum and Voting. A majority of the
votes entitled to be cast on the matter by the voting group, constitutes a
quorum of that voting group at a meeting of shareholders. If a quorum exists,
action on a matter (other than the election of directors) by a voting group is
approved if the votes cast within the voting group favoring the action exceed
the votes cast opposing the action, unless the Articles of Incorporation or
applicable law requires a greater number of affirmative votes. After a quorum
has been established at a shareholders' meeting, a subsequent withdrawal of
shareholders, so as to reduce the number of shares entitled to vote at the
meeting below the number required for a quorum, shall not affect the validity
of any action taken at the meeting or any adjournment thereof.
Section 12. Voting Trusts. One or more shareholders may
create a voting trust, conferring on a trustee the right to vote or otherwise
act for them, by signing an agreement setting out the provisions of the trust
(which may include anything consistent with its purpose) and transferring their
shares to the trustee. When a voting trust agreement is signed, the trustee
shall prepare a list of the names and addresses of all owners of beneficial
interests in the trust, together with the number and class of shares each
transferred to the trust, and deliver copies of the list and agreement to the
Corporation's principal office. After filing a copy of the list and agreement
in the Corporation's principal office, such copy shall be open to inspection by
any shareholder of the Corporation or any beneficiary of the trust under the
agreement during business hours.
A voting trust is valid for not more than ten years after its
effective date, provided that all or some of the parties to a voting trust may
extend it for additional terms of not more than ten years each by signing an
extension agreement and obtaining the voting trustee's written consent to the
extension. An extension is valid for the period set forth therein, up to ten
years, from the date the first shareholder signs the extension agreement. The
voting trustee must deliver copies of the extension agreement and list of
beneficial owners to the Corporation's principal office. An extension agreement
binds only those parties signing it.
Section 13. Shareholders' Agreements. Two or more
shareholders may provide for the manner in which they will vote their shares by
signing an agreement for that purpose.
4
<PAGE> 9
When a shareholders' agreement is signed, the shareholders parties thereto
shall deliver copies of the agreement to the Corporation's principal office.
After filing a copy of the agreement in the Corporation's principal office,
such copy shall be open to inspection by any shareholder of the Corporation, or
any party to the agreement during business hours.
ARTICLE II
Directors
Section 1. General Powers. All corporate powers shall be
exercised by or under the authority of, and the business and affairs of the
Corporation shall be managed under the direction of its Board of Directors.
Section 2. Qualifications of Directors. Directors must be
natural persons who are eighteen years of age or older but need not be
residents of this state or shareholders of the Corporation.
Section 3. Number. The Board of Directors of the Corporation
as of the date of adoption of these Bylaws shall consist of nine members. The
number of directors may be increased or decreased from time to time by action
of the Board of Directors, but no decrease shall have the effect of shortening
the terms of any incumbent director. Directors are elected at each annual
meeting of shareholders.
Section 4. Election and Term. The Board of Directors shall be
divided into three classes as nearly equal in number as possible with a term of
office of one class expiring each year. At the first annual meeting of
shareholders following the effective date of the Articles of Incorporation,
directors of the first class shall be elected to hold office for a term
expiring at the next succeeding annual meeting, directors of the second class
shall be elected to hold office for a term expiring at the second succeeding
annual meeting, and directors of the third class shall be elected to hold
office for a term expiring at the third succeeding annual meeting, and, with
respect to directors of each class, until their respective successors are
elected and qualified. At each subsequent annual meeting of shareholders,
directors elected to succeed those whose terms are expiring shall be elected
for a term of office to expire at the third succeeding annual meeting of
shareholders and when their respective successors are elected and qualified.
Section 5. Vacancy on Board. Any vacancy occurring on the
Board of Directors, including a vacancy from an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall hold office only until the next election of
directors by the shareholders.
Section 6. Removal of Directors by Shareholders. The
shareholders may remove one or more directors with or without cause. A director
may be so removed by the shareholders
5
<PAGE> 10
at a meeting of shareholders, provided the notice of the meeting states that
the purpose, or one of the purposes, of the meeting is removal of the director
with cause.
Section 7. Compensation. The Board of Directors shall have
authority to fix the compensation of directors.
Section 8. Presumption of Assent. A director of the
Corporation who is present at a meeting of the Board of Directors at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless such director votes against such action or abstains
from voting in respect thereto because of an asserted conflict of interest.
Section 9. Directors' Meetings. The Board of Directors may
hold regular or special meetings in or out of the state. Meetings of the Board
of Directors may be called at any time by the Chairman of the Board, by the
President, or by directors constituting at least one-fourth of the full Board
of Directors.
Section 10. Notice of Meetings. Regular meetings of the Board
of Directors may be held without notice of the date, time, place or purpose of
the meetings. Special meetings of the Board of Directors must be preceded by at
least two days' notice of the date, time and place of the meeting. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 11. Waiver of Notice. Notice of a meeting of the
Board of Directors need not be given to any director who signs a waiver of
notice either before or after the meeting. Attendance of a director at a
meeting shall constitute a waiver of notice of such meeting and waiver of any
and all objections to the place of the meeting, the time of the meeting, or the
manner in which it has been called or convened, except when a director states,
at the beginning of the meeting or promptly upon arrival at the meeting, any
objection to the transaction of business because the meeting is not lawfully
called or convened.
Section 12. Quorum and Voting. A majority of the number of
directors fixed by these Bylaws shall constitute a quorum for the transaction
of business. If a quorum is present when a vote is taken, the affirmative vote
of a majority of directors present is the act of the Board of Directors.
Section 13. Action by Directors Without a Meeting. Any action
required or permitted by law to be taken at a Board of Directors' meeting or
committee meeting may be taken without a meeting if action is taken by all
members of the Board or the committee. The action must be evidenced by one or
more written consents describing the action taken and signed by each director
or committee member. Action taken shall be effective when the last director
signs the consent, unless the consent specifies a different effective date. The
consent signed shall have the effect of a meeting vote and may be described as
such in any document.
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Section 14. Adjournments. A majority of the directors
present, whether or not a quorum exists, may adjourn any meeting of the Board
of Directors to another time and place. Notice of any such adjourned meeting
shall be given to the directors who were not present at the time of the
adjournment and, unless the time and place of the adjourned meeting are
announced at the time of the adjournment, to the other directors.
Section 15. Participation by Conference Telephone. Members of
the Board of Directors may participate in a meeting of such Board by means of a
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
ARTICLE III
Board Committees
Section 1. Standing Committees. The Board of Directors
shall have and maintain as standing committees of the Board an Audit Committee
and a Compensation Committee. The Board of Directors shall at the annual
meeting following the Corporation's annual meeting of shareholders and may at
such other times as the Board may determine, elect the members of each such
committee, all of whom shall be directors of the Corporation, designate one of
the members of each such committee as chairman of the committee, and prescribe
the duties of each committee, which duties shall be consistent with these
Bylaws.
Section 2. Audit Committee. The Audit Committee shall
consist of not less than four directors, none of whom shall be officers or
employees of the Corporation or any direct or indirect subsidiary or affiliate
of the Corporation. The Audit Committee shall select and approve the terms and
scope of engagement of the independent certified accountants of the Corporation
and shall have such other duties as may from time to time be prescribed by the
Board of Directors. The independent auditor of the Corporation, if any, shall
report directly to the Audit Committee.
Section 3. Compensation Committee. The Compensation
Committee shall consist of not less than four directors, none of whom shall be
officers or employees of the Corporation or any direct or indirect subsidiary
or affiliate of the Corporation. The Compensation Committee shall serve as the
Board committee responsible for administering any compensation and benefit
plans of the Corporation and shall have such other duties as may from time to
time be prescribed by the Board of Directors.
Section 4. Other Committees. The Board of Directors may by
resolution establish such other committees composed of directors as they may
determine to be necessary or appropriate for the conduct of the business of the
Corporation and may prescribe the composition, duties, and procedures thereof.
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Section 5. Alternate Member Vacancies. The Board
of Directors may designate one or more directors as alternate members of any
committee, and such alternate members may act in the place and stead of any
absent member or members at any meeting of such committee. The Board of
Directors may fill any vacancy or vacancies occurring in any committee.
Section 6. Prohibited Committee Actions.
Notwithstanding any other provision of these Bylaws, no committee of the Board
of Directors shall have the authority to:
(a) Approve or recommend to shareholders actions or
proposals required by law, the Articles of Incorporation, or these Bylaws to be
approved by the shareholders.
(b) Fill vacancies on the Board of Directors or any
committee thereof.
(c) Adopt, amend, or repeal the Bylaws.
(d) Authorize or approve the reacquisition of any
shares of capital stock of the Corporation unless pursuant to a general formula
or method specified by the Board of Directors.
(e) Authorize or approve the issuance or sale or
contract for the sale of shares of capital stock, or determine the designation
and relative rights, preferences, and limitations of a voting group except that
the Board of Directors may authorize a committee (or a senior executive officer
of the Corporation) to do so within limits specifically prescribed by the Board
of Directors.
(f) Declare any dividend or distribution on the
capital stock of the Corporation, whether in cash or in kind.
(g) Authorize or approve any stock split, reverse
stock split, or other recapitalization of any class of capital stock of the
Corporation.
(h) Authorize or approve any agreement or plan
providing for a merger, acquisition, consolidation, or other business
combination involving the Corporation.
(i) Authorize or approve the sale of all or
substantially all of the assets of the Corporation.
(j) Authorize or approve any transaction in which
any member of such committee has any material beneficial interest.
(k) Authorize or approve any action described in
Article II, Section 16, of these Bylaws. (l) Repeal or revoke any of the
foregoing.
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Section 7. Tenure. Each committee member shall
hold office until the next annual meeting of the Board of Directors following
his appointment and until a successor is designated, provided that any member
of a committee may be removed at any time with or without cause by resolution
adopted by a majority of the full Board of Directors. Any member of a committee
may resign from the committee at any time by giving written notice to the
Chairman of the Board or Secretary of the Corporation. Unless otherwise
specified therein, such resignation shall take effect upon receipt and
acceptance of such resignation shall not be necessary to make it effective.
Section 8. Meetings. Regular meetings of a committee
may be held without notice at such times and places as the committee or the
Board of Directors may fix from time to time by resolution. Special meetings of
a committee may be called by the Chairman of the Board, by the President, by
the Chairman of the Committee, or by a majority of the members of the
committee. Special meetings of a committee must be preceded by at least 24
hours notice of the date, time and place of the meeting. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
committee need be specified in the notice or waiver of notice of such meeting.
Notice of a meeting of a committee need not be given to any member who signs a
waiver of notice either before or after the meeting. Attendance of a member at
a committee meeting shall constitute a waiver of notice of such meeting and
waiver of any and all objections to the place of the meeting, the time of the
meeting, or the manner in which it has been called or convened, except when a
director states, at the beginning of the meeting or promptly upon arrival at
the meeting, any objection to the transaction of business because the meeting
is not lawfully called or convened.
Section 9. Quorum. A majority of the members of a
committee shall constitute a quorum for the transaction of business at any
meeting thereof, and action by the committee must be authorized by the
affirmative vote of a majority of the members at the meeting at which such
action is taken.
Section 10. Action Without a Meeting. Any action
required or permitted to be taken by a committee at a meeting may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the members of the committee.
Section 11. Procedures. Each committee may fix its
own rules of procedure which shall not be inconsistent with law or the Articles
of Incorporation or Bylaws of the Corporation, and shall keep regular minutes
of its proceedings and report the same to the Board of Directors at the Board
meeting next following the date the proceedings shall have occurred.
Section 12. Limitation. Neither the designation
of any committee of the Board of Directors, the delegation thereto of authority,
nor any action by such committee pursuant to such authority shall alone
constitute compliance by any member of the Board of Directors not
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a member of the committee in question with his responsibility to act in good
faith, in a manner he or she reasonably believes to be in the best interest of
the Corporation, and with such care as an ordinarily prudent person in a like
position would use under similar circumstances.
ARTICLE IV
Officers
Section 1. Officers, Election and Terms of Office.
The principal officers of the Corporation shall consist of a Chief Executive
Officer (who shall also be the Chairman of the Board of the Corporation), a
Chairman of the Board, one or more Vice Chairmen of the Board (one of whom
shall also be the President of the Corporation), a President, one or more Vice
Presidents, a Secretary, and a Treasurer, each of whom shall be elected by the
Board of Directors at the first meeting of directors immediately following the
annual meeting of shareholders of the Corporation, and shall hold his or her
respective office from the date of the meeting at which elected until the time
of the next succeeding meeting of the Board following the annual meeting of the
shareholders. The Board of Directors shall have the power to elect or appoint,
for such term as it may see fit, such other officers and assistant officers and
agents as it may deem necessary, and to prescribe such duties for them to
perform as it may deem advisable. Any two or more offices may be held by the
same person. Failure to elect a Chairman of the Board, Vice Chairman of the
Board, President, Vice President, Secretary or Treasurer shall not affect the
existence of the Corporation.
Section 2. Resignation and Removal of Officers. An
officer may resign at any time by delivering notice to the Corporation. A
resignation is effective when the notice is delivered unless the notice
specifies a later effective date. If a resignation is made effective at a later
date and the Corporation accepts the future effective date, the Board of
Directors may fill the pending vacancy before the effective date if the Board
of Directors provides that the successor does not take office until the
effective date.
The Board of Directors may remove any officer at any
time with or without cause. Any officer or assistant officer, if appointed by
another officer, may likewise be removed by such officer. Removal of any
officer shall be without prejudice to the contract rights, if any, of the
person so removed; however, election or appointment of an officer or agent
shall not of itself create contract rights.
Section 3. Vacancies. Any vacancy, however
occurring, in any office may be filled by the Board of Directors.
Section 4. Chief Executive Officer. The Board of
Directors shall designate the Chairman of the Board as its Chief Executive
Officer. The Chief Executive Officer shall preside at all meetings of the
shareholders of the Corporation. Such person shall serve as the
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Chief Executive Officer of the Corporation and, subject to the provisions of
these Bylaws and any limitations imposed by the Board of Directors, shall have
general charge of the business, affairs, and property of the Corporation and
general supervision over its other officers, agents, and employees. The Chief
Executive Officer shall have the power and authority to execute contracts,
deeds, notes, mortgages, bonds, and other instruments and documents in the name
of the Corporation and on its behalf, subject, however, to any limitations
imposed by the Board of Directors. The Chief Executive Officer shall report to
the Board of Directors. Unless otherwise expressly provided by the Board of
Directors, the Chief Executive Officer shall perform the duties and exercise
the powers of the Chairman of the Board and the President during any absence or
disability of such officer.
Section 5. Chairman of the Board. The Board of
Directors shall appoint, by the affirmative vote of at least two-thirds of the
full Board of Directors, one of its members to be Chairman of the Board. The
Chairman of the Board shall preside at all meetings of the Board of Directors
and shall generally have and perform such other duties as may from time to time
be conferred or assigned by the Board of Directors.
Section 6. Vice Chairman. The Board of Directors
shall appoint one or more of its members to be Vice Chairmen of the Board, one
of whom shall be the President. In the absence of the Chairman, the Vice
Chairman (in such order of seniority as may be determined by the Board of
Directors, if any) shall preside at any meeting of the shareholders and the
Board of Directors, unless the Board of Directors shall designate a Chairman
Pro Tem for such purposes. The Vice Chairman shall have the power and authority
to execute contracts, deeds, notes, mortgages, bonds, and other instruments and
documents in the name of the Corporation and on its behalf, subject, however,
to any limitations imposed by the Board of Directors. The Vice Chairman of the
Board shall also have and may exercise such further executive powers and duties
as from time to time may be conferred upon or assigned by the Board of
Directors or, in the absence of such action by the Board, by the Chief
Executive Officer. The Vice Chairman shall report to the Chief Executive
Officer.
Section 7. President. Subject to the provisions of
these Bylaws and any limitations imposed by the Board of Directors, the
President shall have such general executive powers as usually pertain to such
office or as may be properly required by the Board of Directors. The President
shall have the power and authority to sign certificates evidencing the capital
stock of the Corporation and execute contracts, deeds, notes, mortgages, bonds,
and other instruments and documents in the name of the Corporation and on its
behalf, subject, however, to any limitations imposed by the Board of Directors.
The President shall report to the Chief Executive Officer. The President shall,
unless otherwise expressly provided by the Board of Directors, perform the
duties and exercise the powers of the Chief Executive Officer during any
disability of the Chief Executive Officer.
Section 8. Vice President. One or more Vice
Presidents may be designated by that title or such additional title or titles
as the Board of Directors may determine. A Vice
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President shall have the powers and perform such duties as may be delegated to
such Vice President by the Board of Directors, or, in the absence of such
action by the Board, then by the Chief Executive Officer, the Chairman of the
Board or the President. Each Executive Vice President will report to the
President and Chief Executive Officer. A Vice President (in such order of
seniority as may be determined by the Board of Directors, if any) shall, except
as may be expressly limited by action of the Board of Directors, perform the
duties and exercise the powers of the President during the absence or
disability of the President. Each Vice President shall at all times have the
power to sign all certificates of stock, execute all contracts, deeds, notes,
mortgages, bonds and other instruments and documents in the name of the
Corporation and on its behalf, subject to any limitations imposed by the Board
of Directors. A Vice President also shall have such powers and perform such
duties as usually pertain to such office or as may be properly required by the
Board of Directors.
Section 9. Secretary. The Secretary shall keep the
minutes of all meetings of the shareholders and the Board of Directors in a
book or books to be kept for such purposes, and also, when so requested, the
minutes of all meetings of committees in a book or books to be kept for such
purposes. The Secretary shall attend to giving and serving of all notices, and
such Secretary shall have charge of all books and papers of the Corporation,
except those hereinafter directed to be in charge of the Treasurer, or except
as otherwise expressly directed by the Board of Directors. The Secretary shall
keep the stock certificate book or books. The Secretary shall be the custodian
of the seal of the Corporation. The Secretary shall sign with the Chief
Executive Officer all certificates of stock as the Secretary of the Corporation
and as Secretary affix or cause to be affixed thereto the seal of the
Corporation. The Secretary may sign as Secretary of the Corporation, with the
President in the name of the Corporation and on its behalf, all contracts,
deeds, mortgages, bonds, notes and other papers, instruments and documents,
except as otherwise expressly provided by the Board of Directors, and as such,
the Secretary shall affix the seal of the Corporation thereto when required
thereby. Under the direction of the Board of Directors, the Chairman of the
Board, any Vice Chairman of the Board, or the President, the Secretary shall
perform all the duties usually pertaining to the office of Secretary or the
Chief Executive Officer, and such Secretary shall perform such other duties as
may be prescribed by the Board of Directors. If at any time any person or
persons shall be designated as an Assistant Secretary of the Corporation, the
Secretary may delegate to such Assistant Secretary such duties and powers as
the Secretary may deem proper.
Section 10. Treasurer. The Treasurer shall have
the custody of all the funds and securities of the Corporation except as may be
otherwise provided by the Board of Directors, and the Treasurer shall make such
disposition of the funds and other assets of the Corporation as such Treasurer
may be directed by the Board of Directors. The Treasurer shall keep or cause to
be kept a record of all money received and paid out, and all vouchers and
receipts given therefor, and all other financial transactions of the
Corporation. The Treasurer shall have general charge of all financial books,
vouchers and papers belonging to the Corporation or pertaining to its business.
The Treasurer shall perform such other duties as are usually incident by law or
otherwise to the office of the Treasurer, and as such Treasurer may be directed
or
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required by the Board of Directors or the Chief Executive Officer. If at any
time any person shall be designated as Comptroller of the Corporation, the
Treasurer may delegate to such Comptroller such duties and powers as the
Treasurer may deem proper.
Section 10. Delegation of Duties. In the case of
the absence or disability of any officer of the Corporation, or in case of a
vacancy in any office or for any other reason that the Board of Directors may
deem sufficient, the Board of Directors, except as otherwise provided by law,
may delegate the powers or duties of any officer during the period of such
officer's absence or disability to any other officer or to any director.
ARTICLE V
Stock Certificates
Section 1. Issuance. Every holder of shares in the
Corporation shall be entitled to have a certificate, representing all shares to
which such holder is entitled. No certificate shall be issued for any share
until such share is fully paid.
Section 2. Signatures: Form. Certificates
representing shares in the Corporation shall be signed by the President or a
Vice President and the Secretary or an Assistant Secretary and may be sealed
with the seal of the Corporation or a facsimile thereof. The signatures of the
President and the Secretary may be facsimiles if the certificate is manually
signed on behalf of a transfer agent or a registrar, other than the Corporation
itself or an employee of the Corporation. In case any officer who signed or
whose facsimile signature has been placed upon such certificate shall have
ceased to be such officer before such certificate is issued, it may be issued
by the Corporation with the same effect as if such person were such officer at
the date of its issuance.
Every certificate representing shares which are
restricted as to the sale, disposition or other transfer of such shares shall
state that such shares are restricted as to transfer and shall set forth or
fairly summarize such restrictions upon the certificate. Alternatively, each
certificate may state conspicuously that the Corporation will furnish to any
shareholder upon request and without charge a full statement of such
restrictions.
Section 3. Transfer of Stock. Shares of stock of
the Corporation shall be transferred on the books of the Corporation only upon
surrender to the Corporation of the certificate or certificates representing
the shares to be transferred accompanied by an assignment in writing of such
shares properly executed by the shareholder of record or his duly authorized
attorney in fact and with all taxes on the transfer having been paid. The
Corporation may refuse any requested transfer until furnished evidence
satisfactory to it that such transfer is proper. Upon the surrender of a
certificate for transfer of stock, such certificate shall be marked on its face
"Canceled." The Board of Directors may make such additional rules concerning
the issuance, transfer and registration of stock as it deems appropriate.
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If any holder of any stock of the Corporation shall
have entered into an agreement with any other holder of any stock of the
Corporation or with the Corporation, or both, relating to a sale or sales or
transfer of any shares of stock of the Corporation, or wherein or whereby any
restriction or condition is imposed or placed upon or in connection with the
sale or transfer of any share of stock of the Corporation, and if a duly
executed or certified copy thereof shall have been filed with the Secretary of
the Corporation, none of the shares of stock covered by such agreement or to
which it relates, of any such contracting shareholder, shall be transferred
upon the books of the Corporation until there has been filed with the Secretary
of the Corporation evidence satisfactory to the Secretary of the Corporation of
compliance with such agreement, and any evidence of any kind or quality, of
compliance with the terms of such agreement which the Secretary deems
satisfactory or sufficient shall be conclusive upon all parties interested;
provided, however, that neither the Corporation nor any director, officer,
employee or transfer agent thereof shall be liable for transferring or
effecting or permitting the transfer of any such shares of stock contrary to or
inconsistent with the terms of any such agreement, in the absence of proof of
willful disregard thereof or fraud, bad faith or gross negligence on the part
of the party to be charged; provided, further, that the certificate of the
Secretary, under the seal of the Corporation, bearing the date of its issuance
by the Secretary, certifying that such an agreement is or is not on file with
the Secretary, shall be conclusive as to such fact so certified for a period of
five days from the date of such certificate, with respect to the rights of any
innocent purchaser or transferee for value of any such shares without actual
notice of the existence of any restrictive agreement.
Section 4. Lost Certificates. Any shareholder
claiming a certificate of stock to be lost or destroyed shall make affidavit or
affirmation of the fact and the fact that such shareholder is the owner and
holder thereof, and give notice of the loss or destruction of same in such
manner as the Board of Directors may require, and shall give the Corporation a
bond of indemnity in form, and with one or more sureties satisfactory to the
Board of Directors, payable as may be required by the Board of Directors to
protect the Corporation and any person injured by the issuance of the new
certificate from any liability or expense which it or they may incur by reason
of the original certificate remaining outstanding, whereupon the President or a
Vice President and the Secretary or an Assistant Secretary may cause to be
issued a new certificate in the same tenor as the one alleged to be lost or
destroyed, but always subject to approval of the Board of Directors.
ARTICLE VI
Indemnification
Section 1. Definitions. For purposes of this
Article VI, the following terms shall have the meanings hereafter ascribed to
them:
(a) "agent" includes a volunteer.
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(b) "Corporation" includes, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger, so that any person who
is or was a director, officer, employee, or agent of a constituent corporation,
or is or was serving at the request of a constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust or other enterprise, is in the same position with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(c) "expenses" includes counsel fees, including
those for appeal.
(d) "liability" includes obligations to pay a
judgment, settlement, penalty, fine (including an excise tax assessed with
respect to any employee benefit plan), and expenses actually and reasonably
incurred with respect to a proceeding.
(e) "proceeding" includes any threatened, pending,
or completed action, suit, or other type of proceeding, whether civil,
criminal, administrative, or investigative and whether formal or informal.
(f) "serving at the request of the Corporation"
includes any service as a director, officer, employee, or agent of the
Corporation that imposes duties on such persons, including duties relating to
an employee benefit plan and its participants or beneficiaries.
(f) "not opposed to the best interest of the
Corporation" describes the actions of a person who acts in good faith and in a
manner he reasonably believes to be in the best interests of the participants
and beneficiaries of an employee benefit plan.
(g) "other enterprises" includes employee benefit
plans.
Section 2. Indemnification of Officers, Directors,
Employees and Agents.
(a) The Corporation shall have power to indemnify
any person who was or is a party to any proceeding (other than an action by, or
in the right of, the Corporation), by reason of the fact that he is or was a
director, officer, employee, or agent of the Corporation or is or was serving
at the request of the Corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise
against liability incurred in connection with such proceeding, including any
appeal thereof, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Corporation
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any proceeding by
judgment, order, settlement, or conviction or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in, or
not opposed to, the best interests of the Corporation or, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
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(b) The Corporation shall have power to indemnify
any person, who was or is a party to any proceeding by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise, against expenses and amounts paid in settlement not exceeding, in
the judgment of the Board of Directors, the estimated expense of litigating the
proceeding to conclusion, actually and reasonably incurred in connection with
the defense or settlement of such proceeding, including any appeal thereof.
Such indemnification shall be authorized if such person acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, except that no indemnification shall be made in
respect of any claim, issue, or matter as to which such person shall have been
adjudged to be liable unless, and only to the extent that, the court in which
such proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability
but in view of all circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
(c) To the extent that a director, officer,
employee, or agent of the Corporation has been successful on the merits or
otherwise in the defense of any proceeding referred to in subsection (a) or
subsection (b), or in the defense of any claim, issue, or matter therein, he
shall be indemnified against expenses actually and reasonably incurred by him
in connection therewith.
(d) Any indemnification under subsection (a) or
subsection (b), unless pursuant to a determination by a court, shall be made by
the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee, or agent is proper in
the circumstances because he has met the applicable standard of conduct set
forth herein. Such determination shall be made:
1. By the Board of Directors by a majority
vote of a quorum consisting of directors who are not parties to such
proceeding;
2. If such a quorum is not obtainable or,
even if obtainable, by majority vote of a committee duly designated by the
Board of Directors (in which directors who are parties may participate)
consisting solely of two or more directors not at the time parties to the
proceeding;
3. By independent legal counsel:
a. Selected by the Board of
Directors prescribed in subsection (d)(1) or the committee prescribed in
subsection (d)(2);
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b. If a quorum of the directors
cannot be obtained for subsection (d)(1) and a committee cannot be designated
for subsection (d)(2), selected by majority vote of the full Board of Directors
(in which directors who are parties may participate); or
4. By the shareholders by a majority vote
of a quorum consisting of shareholders who were not parties to such proceeding
or, if no such quorum is obtainable, by a majority vote of shareholders who
were not parties to such proceeding.
(e) Evaluation of the reasonableness of expenses and
authorization of indemnification shall be made in the same manner as the
determination that indemnification is permissible. However, if the
determination of permissibility is made by independent legal counsel, persons
designated by independent legal counsel shall evaluate the reasonableness of
expenses and may authorize indemnification.
(f) Expenses incurred by an officer or director in
defending a civil or criminal proceeding may be paid by the Corporation in
advance of the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
he is ultimately found not to be entitled to indemnification by the Corporation
pursuant to this section. Expenses incurred by other employees and agents may
be paid in advance upon such terms or conditions that the Board of Directors
deems appropriate.
(g) The indemnification and advancement of expenses
provided pursuant to this Article are not exclusive, and the Corporation may
make any other or further indemnification or advancement of expenses of any of
its directors, officers, employees, or agents, under any bylaw, agreement, vote
of shareholders, or disinterested directors, or otherwise, both as to action in
his official capacity and as to action in another capacity while holding such
office. However, indemnification or advancement of expenses shall not be made
to or on behalf of any director, officer, employee, or agent if a judgment or
other final adjudication establishes that his actions, or omissions to act,
were material to the cause of action so adjudicated and constitute:
1. A violation of the criminal law, unless
the director, officer, employee, or agent had reasonable cause to believe his
conduct was lawful or had no reasonable cause to believe his conduct was
unlawful;
2. A transaction from which the director,
officer, employee, or agent derived an improper personal benefit;
3. In the case of a director, a
circumstance under which the liability provisions of Section 607.0834, Florida
Statutes, are applicable; or
4. Willful misconduct or a conscious
disregard for the best interests of the Corporation in a proceeding by or in
the right of the Corporation to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder.
17
<PAGE> 22
(h) Indemnification and advancement of expenses as
provided in this Article shall continue as, unless otherwise provided when
authorized or ratified, to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person, unless otherwise provided when authorized or
ratified.
(i) Notwithstanding the failure of the Corporation
to provide indemnification, and despite any contrary determination of the Board
of Directors or of the shareholders in the specific case, a director, officer,
employee or agent of the Corporation who is or was a party to a proceeding may
apply for indemnification or advancement of expenses, or both, to the court
conducting the proceeding, to the Circuit Court, or to another court of
competent jurisdiction. On receipt of an application, the court, after giving
any notice that it considers necessary, may order indemnification and
advancement of expenses, including expenses incurred in seeking court-ordered
indemnification or advancement of expenses, if it determines that:
1. The director, officer, employee or agent
is entitled to mandatory indemnification, in which case the court shall also
order the Corporation to pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or advancement of expenses;
2. The director, officer, employee or
agent is entitled to indemnification or advancement of expenses, or both, by
virtue of the exercise by the Corporation of its power; or
3. The director, officer, employee or
agent is fairly and reasonably entitled to indemnification or advancement of
expenses, or both, in view of all the relevant circumstances, regardless of
whether such person met the standard of conduct set forth herein.
ARTICLE VII
General Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation
shall begin on the first day of January and end on the last day of December in
each year.
Section 2. Seal. The Board of Directors in its discretion
may adopt a seal for the Corporation in such form as may be determined from
time to time by the Board of Directors.
Section 3. Amendment of Bylaws. The Board of Directors shall
have the power to appeal, alter, amend, and rescind these Bylaws.
18
<PAGE> 23
CERTIFICATE OF ADOPTION
I hereby certify that the foregoing Bylaws were duly adopted
at a meeting of the Board of Directors held on August 8, 1997.
---------------------------------------------
Todd H. Katz
Secretary of the Corporation
19
<PAGE> 1
EXHIBIT 4.2
NUMBER SHARES
[ ] [ ]
GULF COAST BANCORP, INC.
TOTAL AUTHORIZED ISSUE
10,000,000 SHARES PAR VALUE $.01 EACH
SEE REVERSE FOR
CERTAIN RESTRICTIONS
COMMON STOCK
This is to certified that __________________________________________________ is
the owner of______________________________________fully paid and
non-assessable shares of the above Corporation transferable only on the books
of the Corporation by the holder hereof in person of by duly authorized
Attorney upon surrender of this Certificate properly endorsed.
Witness, the seal of the Corporation and the signatures of its duly authorized
officers.
Dated
- -------------------------- --------------------------
SECRETARY PRESIDENT
(c) 1997 CORIPEX BANKNOTE CO., NEW YORK
<PAGE> 2
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT-...Custodian.....
(Cust) (Minor)
TEN ENT - as tenants by the entireties under Uniform Gifts to Minors
Act..........................
JT TEN - as joint tenants with right of (State)
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above
list
For value received _____ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
/ /
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ------------------------------------------------------------------------Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
- ------------------------------------------------------------------------Attorney
to transfer the said Shares on the books of the within named Corporation with
full power of substitution in the premises.
Dated 19
------------------------ ----------------
In presence of
-------------------------------------------
------------------------
<PAGE> 1
EXHIBIT 5
October 30, 1997
Gulf Coast Bancorp, Inc.
4055 Tamiami Trail, Suite A-6
Port Charlotte, Florida 33952
Gentlemen:
This opinion is issued in connection with the filing by Gulf Coast
Bancorp, Inc. (the "Company") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), of a Registration Statement
on Form SB-2, as amended (the "Registration Statement"), with respect to the
offer and sale of shares of common stock, par value $.01 per share, of the
Company (the "Shares").
We have examined the originals, or certified, conformed or
reproduction copies, of such records, agreements, instruments and documents as
we have deemed relevant or necessary as the basis for the opinion hereinafter
expressed. In all such examinations, we have assumed the genuineness of all
signatures on original or certified copies and the conformity to original or
certified copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to such opinion, we have
relied upon, and assumed the accuracy of, certificates and oral or written
statements and other information of or from public officials, officers or
representatives of the Company, and others.
Based upon the foregoing and subject to the limitations set forth
herein, we are of the opinion that the Shares, when issued, delivered and paid
for in accordance with the Registration Statement, and the Articles of
Incorporation of the Company, will be legally issued, fully paid and
nonassessable Shares of common stock of the Company.
The opinion expressed herein is limited to the laws of the State of
Florida.
<PAGE> 2
Gulf Coast Bancorp, Inc.
October 30, 1997
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
In giving this consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act.
Very truly yours,
SMITH, MACKINNON, GREELEY,
BOWDOIN & EDWARDS, P.A.
--------------------------------
By: John P. Greeley
JPG:erw
<PAGE> 1
EXHIBIT 10.1
GULF COAST BANCORP, INC.
1997 INCENTIVE STOCK OPTION PLAN
1. PURPOSE
The purpose of the Gulf Coast Bancorp, Inc. 1997 Incentive Stock
Option Plan (the "Plan") is to encourage and enable eligible officers and key
employees ("Eligible Employees") of Gulf Coast Bancorp, Inc. (The "Company")
and its subsidiaries to acquire proprietary interests in the Company through
the ownership of Common Stock of the Company. The Company believes that
Eligible Employees who participate in the Plan will have a closer
identification with the Company by virtue of their ability as shareholders to
participate in the Company's growth and earnings. The Plan also is designed to
provide motivation for Eligible Employees to remain in the employ of and to
give greater effort on behalf of the Company. It is the intention of the
Company to have the Plan qualify as an "incentive stock option plan" under
sections 422B of the Internal Revenue Code of 1986, as amended (the "Code") and
the regulations promulgated thereunder. Accordingly, the provisions of the Plan
shall be construed so as to extend and limit participation in a manner
consistent with the requirements of applicable sections of the Code.
2. DEFINITIONS
The following words of terms shall have the following meanings:
(a) "Agreement" shall mean an incentive stock option agreement
between the Company and an Eligible Employee pursuant to the
terms of the Plan.
(b) "Average Market Price" shall mean the mean average between
the high "bid" and the low "ask" prices as of the close of
business for the Company's shares of Common Stock in the
over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation
System (or other national quotation service). If the
Company's Common Stock is not regularly traded in the
over-the-counter market but is registered on a national
securities exchange, "Average Market Price" shall mean the
closing price of the Company's Common Stock on such national
securities exchange.
(c) "Board of Directors" shall mean the Board of Directors of the
Company or the Executive Committee of such Board.
(d) "Committee" shall mean the committee appointed by the Board
of Directors to administer the Plan.
(e) "Common Stock" shall mean the $.01 par value common stock of
the Company.
<PAGE> 2
(f) "Company" shall mean Gulf Coast Bancorp, Inc., a Florida
corporation.
(g) "Eligible Employee" shall mean a person or persons regularly
employed by the Company or a Subsidiary.
(h) "Nonemployee Director" shall mean a member of the Board who
is not an Eligible Employee.
(i) "Optionee" shall mean an Eligible Employee having a right to
purchase Common Stock under the Plan.
(j) "Option(s)" shall mean the right of rights granted to
Eligible Employees to purchase Common Stock under the Plan.
(k) "Plan" shall mean this Gulf Coast Bancorp, Inc. 1997
Incentive Stock Option Plan.
(l) "Shares", "Stock" or "Common Stock" shall mean shares of the
$.01 par value common stock of the Company.
(m) "Stock Option Committee" shall mean such Board committee as
may be designated by the Board to administer the Plan;
provided, however, that such committee shall be comprised
solely of not less than two Nonemployee Directors, each of
whom qualifies as a "Nonemployee Director" (as such term is
used in Rule 16b-3 under the Securities Exchange Act of 1934,
as amended).
(n) "Subsidiary" shall mean any corporation, if the Company owns
or controls, directly or indirectly, more than a majority of
the voting stock of such corporation.
(o) "Ten Percent Owner" shall mean an individual who, at the time
an Option is granted, owns directly or indirectly more than
ten percent (10%) of the total combined voting power of all
classes of stock of the Company.
3. EFFECTIVE DATE
The effective date of the Plan (the "Effective Date") shall be the
date the Plan is adopted by the Board of Directors or the date the Plan is
approved by the stockholders of the Company, whichever is earlier. The Plan
must be approved by the affirmative vote of not less than a majority of the
votes entitled to be cast thereon, which shareholder vote must be taken within
twelve (12) months after the date the Plan is adopted by the Board of
Directors. Such shareholder vote shall not alter the Effective Date of the
Plan. In the event shareholder approval of the adoption of the plan is not
obtained within the aforesaid twelve (12) month period, than any options
granted in the intervening period shall be void.
2
<PAGE> 3
4. SHARES RESERVED FOR PLAN
The shares of the Company's Common Stock to be sold to Eligible
Employees under the Plan may at the election of the Board of Directors be
either treasury shares or shares originally issued for such purpose. The
maximum number of shares which shall be reserved and made available for sale
under the Plan shall be 125,000. Any shares subject to an Option which for any
reason expires or is terminated unexercised may again be subject to an Option
under the Plan.
5. ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Stock Option Committee. Within
the limitations described herein, the Stock Option Committee shall administer
the Plan, select the Eligible Employees to whom Options will be granted,
determine the number of shares to be optioned to each Eligible Employee and
interpret, construe and implement the provisions of the Plan. Stock Option
Committee members shall be reimbursed for out-of-pocket expenses reasonably
incurred in the administration of the Plan.
The Committee shall elect one of its members as chairman and shall
hold its meetings at such times and places, and pursuant to such rules
consistent with the Plan, as it may determine. A majority of the members of the
Committee shall constitute a quorum, and the acts of a majority of the members
present at any such meeting at which a quorum is present, or acts approved in
writing by a majority of the members of the Committee, shall be the acts of the
Committee.
6. ELIGIBILITY
Options may be granted only to Eligible Employees.
7. DURATION OF THE PLAN
The Plan shall remain in effect until all shares subject to or which
may become subject to the Plan shall have been purchased pursuant to Options
granted under the Plan; provided that Options under the Plan must be granted
within ten (10) years from the Effective Date.
8. QUALIFIED INCENTIVE OPTIONS
It is intended that the Options granted under the Plan shall be
qualified incentive stock options under the provisions of Section 422B of the
code and the regulations thereunder or corresponding provisions of subsequent
revenue laws and regulations in effect at the time such Options are granted.
Such Options shall be evidenced by stock option agreements in such form and not
inconsistent with this Plan as the Committee shall approve from time to time,
which agreements shall contain in substance the following terms and conditions:
3
<PAGE> 4
(a) Price. The purchase price for the shares purchased upon
exercise will be the Average Market Price on the date
the Option is granted, as determined by the Committee, or, if
the Stock is not traded in the organized markets, then the
price shall be the fair market value of the Stock as
determined in good faith by the Committee, but in no case
less than the par value of such stock; provided further that
the purchase price of stock deliverable upon the exercise of
a qualified incentive option granted to a Ten Percent Owner
shall be not less than one hundred tem percent (110%) of the
Average Market Price of fair value on the day the Option is
granted, as determined by the Committee, but in no case less
than the par value of such stock.
(b) Number of Shares. The Agreement shall specify the number of
shares which the Optionee may purchase under the Option.
(c) Exercise of Options. The shares subject to the Option may be
purchased in whole pr in part by the Optionee in accordance
with the terms of the Agreement, from time to time after
shareholder approval of the shares subject to the Option
shall become exercisable in increments of 10% of the number
of shares subject to the Option on each anniversary of the
date of grant until shares subject to the Option have become
exercisable, with 10% of the number of shares subject to the
Option becoming exercisable on the date of grant. Such shares
shall be exercisable until the tenth anniversary of the date
of the grant of the Option. Notwithstanding the foregoing, the
shares subject to an Option granted to a Ten Percent Owner
shall become exercisable in increments of 20% of the number
of shares subject to the Option on each anniversary of the
date of grant until all shares subject to the Option have
become exercisable, with 20% of the number of shares subject
to the Option becoming exercisable on the date of grant. Such
shares shall be exercisable until the fifth anniversary of
the date of the grant of the Option.
(d) Medium and Time of Payment. Stock purchased pursuant to an
Agreement shall be paid for in full at the time of purchase.
Payment of the purchase price shall be in cash or shares of
the Common Stock of the Company, or in a combination of cash
and shares of the Common Stock of the Company. Upon receipt
of payment and within a reasonable time, the Company shall,
without transfer or issue tax, deliver to the Optionee (or
such person entitled to exercise the Option) a certificate or
certificates for such shares.
(e) Rights as a Shareholder. An Optionee shall have the no rights
as a shareholder with respect to any shares covered by an
Option until the date of issuance of the stock certificate to
the Optionee for such shares. Except as otherwise expressly
provided in the Plan, no adjustments shall be made for
dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
4
<PAGE> 5
(f) Nonassignability of Options. No Option shall be assignable or
transferable by the Optionee except by will or by the laws of
decent and distribution. During the lifetime of the Optionee,
the Option shall be exercisable only by him or her.
(g) Effect of Termination of Employment or Death. In the event
that an Optionee during his or her lifetime ceases to be an
employee of the Company or any subsidiary of the Company for
any reason (including retirement) other than death or
permanent and total disability, any Option or unexercised
portion thereof which was otherwise exercisable on the date
of termination of employment shall expire unless exercised
within a period of ninety (90) days from the date on which
the Optionee ceases to be an employee, but in no event after
the term provided in the Optionee's Agreement. In the event
that an Optionee ceases to be an employee of the Company or
any subsidiary of the Company for any reason (including
retirement, death or permanent and total disability), any
Option or portion thereof which was not exercisable on the
date such Optionee ceased employment shall terminate and
shall be null and void. In the event that an Optionee during
his or her lifetime ceases to be an employee of the Company
or any subsidiary of the Company by reason of death or
permanent and total disability, any option or unexercised
portion thereof which was otherwise exercisable on the date
such Optionee ceased employment shall expire unless exercised
within a period of one (1) year from the date on which the
Optionee ceased to be an employee, but in no event after the
term provided in the Optionee's Agreement. Permanent and
total disability as used herein is as defined in Section
22(e)(3) of the Code. In the event of the death of an
Optionee, the Option shall be exercisable by his or her
personal representatives, heirs or legates, as provided
herein.
(h) Recapitalization. In the event that dividends are payable in
Common Stock of the Company or in the event there are splits,
subdivisions of combinations of shares of Common Stock of the
Company, the number of Shares and the exercise price thereof
available under the Plan shall be increased or decreased
proportionately, as the case may be, and the number of Shares
and the exercise price thereof deliverable upon the exercise
thereafter of any Option therefore granted shall be increased
or decreased proportionately, as the case may be, without
change in the aggregate purchase price.
(i) Reorganization. In case the Company is merged or consolidated
with another corporation and the Company is not the surviving
corporation, or in the case the property or stock of the
Company is acquired by another corporation, or in the case of
a separation, reorganization, recapitalization or liquidation
of the Company, the Board of Directors of the Company, or the
Board of Directors of any corporation assuming the
obligations of the Company hereunder, shall make appropriate
provision for the protection of any outstanding Options by
the substitution on an equitable basis of appropriate stock
of the Company, or of the merged, consolidated or otherwise
reorganized corporation which will be issuable in respect to
the shares of Common Stock of the Company, provided only that
the excess of the aggregate
5
<PAGE> 6
fair market value of the shares subject to option immediately
after such substitution over the purchase price thereof is
not more than the excess of the aggregate fair market value
of the shares subject to option immediately before such
substitution over the purchase price thereof.
(j) General Restriction. Each Option shall be subject to the
requirement that if at any time the Board of Directors shall
determine, in its discretion, that the listing, registration
or qualification of the shares subject to such Option upon
any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection
with, the granting of such Option or the issue or purchase of
Shares thereunder, such Option may not be exercised in whole
or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free
from any conditions not acceptable to the Board of Directors.
9. AMENDMENT OF THE PLAN
The Plan may at any time or from time to time be terminated, modified
or amended by the affirmative vote of not less than a majority of the votes
entitled to the cast thereof by the Company's shareholders. The Board of
Directors may at any time and from time to time modify or amend the Plan in any
respect, except that without shareholder approval the Board of Directors may
not:
(a) increase the maximum numbers of shares for which Options may
be granted under the Plan either in the aggregate or to any
Eligible Employee (other than increases due to changes in
capitalization as referred to in Section 8(h) hereof), or
(b) reduce the option price or waiting period (except as
otherwise expressly provided in the Plan in the case of a
reorganization of the Company as referred to in Section 8(i)
hereof), or
(c) extend the period during which Options may be granted or
exercised, or
(d) change the class of employees eligible for incentive stock
options under Section 6 hereof, or
(e) otherwise materially modify (within the meaning of Rule 16b-3
of the Securities Exchange Act of 1934, as amended) the
requirements as to eligibility for participation in the Plan,
or
(f) otherwise materially increase (within the meaning of Rule
16b-3 of the Securities Exchange Act of 1934, as amended) the
benefits accruing to participants under the Plan.
6
<PAGE> 7
The termination or modification or amendment of the Plan shall not,
without the written consent of an Optionee, affect his or her rights under the
Option or right previously granted to him or her. With the written consent of
the Optionee affected, the Committee may amend outstanding option agreements in
a manner not inconsistent with the Plan. Without employee consent, the Board of
Directors may at any time and from time to time modify or amend outstanding
option agreements in such respects as it shall deem necessary in order that
Options granted hereunder shall comply with the appropriate provisions of the
Code and regulations thereunder which are in effect from time to time
respecting "Qualified Incentive Options."
10. LIMITATION ON NUMBER OF SHARES THAT MAY BE PURCHASED
The aggregate fair market value (determined at the time the Option is
granted) of the shares with respect to which incentive stock options are
exercisable for the first time by an Optionee during any calendar year (under
all incentive stock option plans of the Company) shall not exceed $100,000.
11. BINDING EFFECT
All decisions of the board of Directors or the Committee involving the
implementation, administration or operation of the Plan or any offering under
the Plan shall be binding on the Company, all Eligible Emloyees participating
in the Plan, and on all persons eligible or who become eligible to participate
in the Plan.
7
<PAGE> 8
GULF COAST BANCORP, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT ("Option Agreement") made and
entered into this FIELD 1 by and between Gulf Coast Bancorp, Inc. (the
"Company") and FIELD 2 ("Employee");
W I T N E S S E T H:
The Board of Directors of the Company has adopted that certain 1997
Incentive Stock Option Plan (the "Plan"), a complete copy of which may be
requested from the Company, and is incorporated herein by reference. Pursuant
to the terms of the Plan, the Stock Option Committee (the "Committee") has
selected Employee to participate in the Plan and desires to grant to Employee
certain incentive stock options to purchase shares of the Company's authorized
$.01 par value common stock ("Stock"), subject to the terms and conditions of
the Plan and as hereinafter set forth. All terms herein shall have the meanings
set forth in the Plan. This Agreement supersedes all other prior agreements
pertaining to the Plan.
NOW, THEREFORE, in consideration of the mutual promises, agreements
and covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. INCORPORATION OF PLAN PROVISIONS
This Option Agreement is subject to, and is to be construed in all
respects in a manner which is consistent with, the terms of the Plan, the
provisions of which are hereby incorporated by reference into this Option
Agreement. Unless specifically provided otherwise, all terms used in this
Option Agreement shall have the same meaning as in the Plan.
2. GRANT OF OPTION
Subject to the further terms and conditions of this Option Agreement,
Employee is hereby granted an incentive stock option to purchase FIELD 3 shares
of Stock, effective as of the date first written above. This stock option is
intended to be an Incentive Stock Option as provided in paragraph 422B of the
Internal Revenue Code.
3. OPTION PRICE
The Committee has determined that the price for each share of Stock
purchased under this Option Agreement shall be FIELD 4.
4. EXPIRATION OF OPTIONS
The option to acquire Stock pursuant to this Option Agreement shall
expire (to the extent not previously fully exercised) upon the first to occur
of the following:
(a) FIELD 5 (the tenth anniversary of the date of grant of the
option);
(b) The date which is the 91st day following the date upon which
Employee ceases to be employed by the Company, or any
majority-owned subsidiary of the Company, otherwise than as a
result of the Employee's death or disability;
(c) The date which is the first anniversary of the date upon
which Employee ceases to be employed by the Company, or any
majority-owned subsidiary of the Company, by reason of
Employee's death or disability; or
(d) The date upon which Employee ceases his employment with the
Company, or any majority-owned subsidiary of the Company, for
any reason, excluding death or disability, with respect to
any portion of this option that is not then exercisable on
the date Employee ceases his employment with the Company.
5. EXERCISE OF OPTION
Unless options hereunder shall earlier lapse or expire pursuant to
Article 4 hereof, this option may be exercised with respect to the aggregate
number of shares subject to this Option Agreement as follows: (i) As of the
date of this Agreement, FIELD 6 shares; and (ii) as of 7 (first anniversary of
date of this Agreement) and on each successive anniversary of this Agreement
through FIELD 9 (ninth anniversary of date of this Agreement), an additional
FIELD 8 shares.
To the extent such options become exercisable in accordance with the
foregoing, Employee may exercise this incentive stock option, in whole or in
part from time to time, as outlined within the Plan.
For the purposes of this Article 5, an "organized trading market"
shall be deemed to exist on the date of exercise of the option if: (a) the
Stock is listed on a national securities exchange, or (b) the Stock has been
quoted on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") for the 15 trading days preceding the date of exercise of the
option, or (c) bid and asked quotations for the Stock have been published by
the National Quotation Bureau or other recognized inter-dealer quotation
publication (other than NASDAQ) during 20 of the 30 trading days preceding the
date of exercise of the option. In the event that an organized trading market
for the Stock exists on the date of exercise of the option at the Employee's
election, Employee shall be given credit against the option exercise price
hereunder for such shares surrendered equal to (i) if the Stock is listed on a
national securities exchange or is quoted on the NASDAQ National Market System,
the last actual sales transaction price reported on the day preceding exercise
of the option, or, if there were no actual sales transactions reported for such
date, on the date next preceding such date on which actual sales transactions
were reported, or (ii) if the Stock is quoted on NASDAQ (other than the NASDAQ
National Market System) or by the National Quotation Bureau or other recognized
inter-dealer quotation publication, the average of the high and low price
quotations on the day preceding exercise of the option, or, if there were no
price quotations for such date, on the date next preceding such date on which
there were high and low price quotations for the Stock.
6. MANNER OF EXERCISE
This incentive stock option may be exercised by written notice to the
Company specifying the number of shares to be purchased and signed by Employee
or such other person who may be entitled to acquire Stock under this Option
Agreement. If any such notice is signed by a person other than Employee, such
person shall also provide such other information and documentation as the
Company may reasonably require to assume that such person is entitled to
acquire Stock under the terms of the Plan and this Option Agreement. After
receipt of the notice and any other assurances requested by the Company under
this Article 7, and upon receipt of the full option price, the Company shall
issue to the person giving notice of exercise under this Option Agreement the
number of shares specified in such notice.
7. RESTRICTIONS ON TRANSFERABILITY
The incentive stock option granted hereunder shall not be transferable
by Employee otherwise than by will or by the laws of descent and distribution,
and such incentive stock option shall be exercisable during Employee's lifetime
only by Employee.
8. REORGANIZATION
In case the Company is merged or consolidated with another corporation
and the Company is not the surviving corporation, or in case the property or
stock of the Company is acquired by another corporation, or in case of a
separation, reorganization, recapitalization or liquidation of the Company, the
Board of Directors of the Company, or the Board of Directors of any corporation
assuming the obligations of the Company hereunder, shall make appropriate
provision for the protection of any outstanding Options by the substitution on
an equitable basis of appropriate stock of the Company, or of the merged,
consolidated or otherwise reorganized corporation which will be issuable in
respect to the shares of Common Stock of the Company, provided only that the
excess of the aggregate fair market value of the shares subject to option
immediately after such substitution over the purchase price thereof is not more
than the excess of the aggregate fair market value of the shares subject to
option immediately before such substitution over the purchase price thereof.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
executed by a member of the Committee or a duly authorized officer of the
Company, and Employee has executed this Option Agreement as of the date first
written above.
GULF COAST BANCORP, INC.
By:
--------------------------
Lewis S. Albert, Chairman
Attest:
- -----------------------------
Todd H. Katz, Secretary
"EMPLOYEE"
- -----------------------------
FIELD 2
8
<PAGE> 9
GULF COAST BANCORP, INC.
INCENTIVE STOCK OPTION
(NOT TRANSFERABLE)
CERTIFICATE
GULF COAST BANCORP, INC., a Florida corporation (the "Company"),
pursuant to action of its Board of Directors, hereby grants to FIELD 2 (the
"Optionee"), not in lieu of any salary or other compensation for his or her
services, an
INCENTIVE STOCK OPTION
To purchase from the Company FIELD 3 shares of its common capital
stock, at a purchase price of FIELD 4 per share, par value *.01* per share
pursuant to and in accordance with the provisions of the 1988 Incentive Stock
Option Plan for GULF COAST BANCORP, INC. and to the terms and conditions set
forth on the reverse side of this Certificate.
Option granted as of
FIELD 1
----------------------------------
(the "Option Grant Date")
[SEAL] GULF COAST BANCORP, INC.
By:
-----------------------------
Lewis S. Albert, Chairman & CEO
9
<PAGE> 1
EXHIBIT 10.2
[DRAFT] EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the _______ day of ________, 1997, by and
among Gulf Coast Bancorp, Inc., a Florida corporation (the "Holding Company"),
Gulf Coast Community Bank, National Association (Proposed), a proposed national
bank to be organized under the laws of the United States (the "Bank" or the
"Employer"), and _______________ (the "Executive").
WITNESSETH:
WHEREAS, the directors and organizers of the Bank, are seeking
approval from the Comptroller of the Currency ("OCC") and the Federal Deposit
Insurance Corporation ("FDIC") to charter a national bank in Port Charlotte,
Florida; and
WHEREAS, Executive is willing to become employed by the Bank as its
Chairman and Chief Executive Officer of the Bank in accordance with the terms
and conditions hereinafter set forth:
1. Employment. Employer employs Executive and Executive accepts employment
upon the terms and conditions set forth in this Agreement.
2. Term. The term of employment of Executive under this Agreement shall
commence on the Executive's first day of employment with the Bank (the
"Start Date") and end two years after the Bank's receipt of a charter
from the OCC. If this contract is not renewed or renegotiated prior to
the end of the two year term, it will be treated as a termination
without cause and compensated as indicated in paragraph 11.b.
3. Compensation.
For all services rendered by Executive, Executive shall be paid a
minimum annual base salary of $96,000.00 from the Bank, payable in
equal semi-monthly installments during the term of this Agreement.
Salary payments shall be subject to withholding and other applicable
taxes.
4. Title and Duties. Executive shall serve as Chairman and Chief Executive
Officer of the Holding Company and of the Bank once the OCC has granted
preliminary charter approval. Executive shall be responsible for
overall operations of the Proposed Bank, including implementing the
Board's directives; acting as chief regulatory contact; monitoring the
Proposed Bank's progress and presenting regular reports to the Board on
financial, lending and deposit activities and on other operations;
actively involved in
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community relations and business development; serves as
Financial Officer; and responsible for strategic planning
efforts.
5. Extent of Services. Executive shall devote his entire time,
attention and energies to the business of Employer and shall
not during the term of this Agreement be engaged in any other
business activity which requires the attention or
participation of Executive during normal business hours of
Employer, recognition being given to the fact that Executive
is expected on occasion to participate in client development
after normal business hours. However, Executive may invest
his assets in such form or manner as will not require his
services in the operation of the affairs of the companies in
which such investments are made, except that Executive shall
not make an investment in the securities of any competing
financial institution without the express approval of the
Board of Directors of the Bank. Executive shall notify
Employer of any significant participation by him in any trade
association or similar organization.
6. Working Facilities. Executive shall receive from the Bank,
such assistants, perquisites, facilities and services as are
suitable to his position and appropriate for the performance
of his duties on behalf of such entity. In addition, the Bank
shall provide Executive membership in a country or golf club
(including dues, assessments and initiation fees) of his
choice and Executive shall have the option at the termination
of his employment for any reason to repurchase said
membership from the Bank.
7. Expenses. Executive may incur reasonable expenses for
promoting the business of the Bank, including expenses for
entertainment, travel, and similar items. Executive will be
reimbursed by the Bank for all such expenses upon Executive's
periodic presentation of an itemized account of such
expenditures with receipts attached.
8. Vacations. Executive shall be entitled each year to four (4)
weeks of vacation time in accordance with the personnel
policy established by the Bank's Boards of Directors, during
which time Executive's compensation shall be paid in full.
9. Additional Compensation. As additional Consideration paid to
Executive, Executive shall be provided with and participate
in all employee benefit plans offered by the Bank to all of
its employees, including health, hospitalization, disability,
life insurance, travel insurance, retirement and savings
plans. In addition, Executive shall be provided with a term
life insurance policy of at least $200,000, which shall
include an accidental death or dismemberment provision of two
times the face amount of the policy. The Holding Company
shall also grant to Executive the option to purchase 20,000
shares of Common Stock of the Holding Company at a purchase
price equal to the price at which the stock is offered and
sold to investors through the Public Placement Memorandum.
These options shall vest at the rate of ten percent (10%) or
two thousand (2,000) options per year, beginning on the
Executive's Start Date and on each of the nine (9) subsequent
anniversary dates, and shall be exercisable for a period of
ten (10) years from such Start Date.
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10. Change in Control of the Bank.
a. In the event of a "change in control" of the Bank,
as defined herein, and only to the extend permitted
by applicable statutes and regulations, Executive
shall be entitled, for a period of thirty (30) days
from the date of closing of the transaction
effecting such change in control and at his
election, to give written notice to Employer of
termination of this Agreement and to receive a cash
payment equal to one time (100%) the compensation,
including incentive compensation, if any, received
by Executive in the one-year period immediately
preceding the change in control. In the event
"change in control" shall occur within the first
year of this Agreement, the severance compensation
shall be equal to the payments due during the first
year of the Agreement. The severance payments
provided for in this Section 10.a. shall be paid in
cash, commencing not later than ten (10) days after
the date of notice of termination by Executive under
this Section 10 or ten (10) days after the date of
closing of the transaction effecting the change in
control of the Bank, whichever is later.
b. In addition, if Executive elects to terminate this
Agreement pursuant to this Section 10, Executive
shall further be entitled, in lieu of shares of
Common Stock of the Bank issuable upon exercise of
stock options to which Executive is entitled under
this Agreement, an amount in cash or Common Stock of
the Bank or any other company into which shares of
the Bank are convertible (or any combination
thereof) as Executive shall in his election
designate equal to the excess of the fair market
value of the Common Stock as of the date of closing
of the transaction effecting the change in control
over the per share exercise price of the options
held by Executive, times the number of shares of
Common Stock subject to such options (whether or not
then fully exercisable). The fair market value of
the Common Stock shall be equal to the higher of (i)
the value as determined by the Board of Directors of
the Bank if there is no organized trading market for
the shares at the time such determination is made,
which per share value shall not be less than 1.8
times the per share book value of the stock or (ii)
the closing price (or the average of the bid and
asked prices if no closing price is available) on
any nationally recognized securities exchange or
association on which the Bank's shares may be quoted
or listed, or (iii) the highest per share price
actually paid for Common Stock in connection with
any change in control of the Bank. The severance
payments provided for in this Section 10.b. shall be
paid in full not later than ten (10) days after the
date of notice of termination by Executive under
this Section 10 or ten (10) days after the date of
closing of the transaction effecting the change in
control of the Bank, whichever is later.
c. For purposes of this Section 10, "change in control"
of the Bank shall mean:
1. any transaction, whether by merger,
consolidation, asset sale, tender offer,
reverse stock split, or otherwise, which
results in the acquisition or beneficial
ownership (as such term is defined under
rules and regulations promulgated under the
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Securities Exchange Act of 1934, as
amended) by any person or entity or group
of persons or entities acting in concert,
of 50% or more of the outstanding shares of
Common Stock of the Bank.
2. the sale of all or substantially all of the
assets of the Bank; or
3. the liquidation of the Bank.
d. If any payments to be made under this Section 10
constitute an "Excess Parachute Payment" as that
term is defined in Section 280(g) of the Internal
Revenue Code, the payments shall be reduced to the
largest amount which would not constitute an "Excess
Parachute Payment."
11. Termination.
a. For Cause. This Agreement may be terminated by the
Board of Directors of the Employer without notice
and without further obligations other than for
monies already paid, for any of the following
reasons:
i. failure of Executive to follow reasonable
written instructions or policies of the
Board of Directors of the Bank;
ii. gross negligence or willful misconduct of
Executive materially damaging to the
business of the Bank during the term of
this Agreement, or at any time while he was
employed by the Bank prior to the term of
this Agreement, if not disclosed to the
Bank prior to the commencement of the term
of this Agreement; or
iii. conviction of Executive during the term of
this Agreement of a crime involving breach
of trust or moral turpitude; or
iv. at the request of any bank regulatory
authority with jurisdiction over the Bank.
In the event that the Employer discharges Executive
alleging "cause" under this Section 11.a. and it is
subsequently determined judicially that the
termination was "without cause," then such discharge
shall be deemed a discharge without cause subject to
the provisions of Section 11.b. hereof. In the event
that the Employer discharges Executive alleging
"cause" under this Section 11.a, such notice of
discharge shall be accompanied by a written and
specific description of the circumstances alleging
such "cause". The termination of Executive for
"cause" shall not entitle the Bank to enforcement of
the non-competition and non-solicitation covenants
contained in Section 13 hereof, unless the employee
purposely engages in conduct constituting "cause"
for the purpose of negating the non-competition
provision.
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<PAGE> 5
b. Without Cause.
i. Notwithstanding the provisions of Section 2
of this Agreement, the Employer may, upon
thirty (30) days' written notice to
Executive, or by the giving of a notice
under Section 2 of this Agreement terminate
this Agreement without cause at any time
during the term of this Agreement upon the
condition that Executive shall be entitled,
as liquidated damages in lieu of all other
claims, to the same severance payments as
provided in Section 10 hereof; provided
that for purposes of Section 10.b., the
fair market value of Common Stock shall be
determined as of the date of notice of
termination of this Agreement given by the
Bank to Executive. The severance payments
provided for in this Section 11.b. shall
commence not later than thirty (30) days
after the actual date of termination of
employment of Executive.
ii. Executive may upon thirty (30) days'
written notice to Employer terminate his
Agreement without cause at any time during
the term of this Agreement. In the event of
termination of this Agreement by Executive,
the Employer shall have no further
obligation to Executive than for monies
paid.
12. Death or Disability.
a. In the event of Executive's death during the term of
this Agreement, Employer shall pay to Executive's
designated beneficiary, or if Executive has failed
to designate a beneficiary, to his estate, an amount
equal to Executive's base salary pursuant to Section
3 hereof through the end of the month in which
Executive's death occurred plus an amount equal to
ninety (90) days salary. Employer shall also
continue to provide Executive's survivors with any
benefits it provided Executive for such additional
ninety (90) day period.
b. In the event of Executive's disability during the
term of this Agreement, Employer shall pay to
Executive an amount equal to Executive's base salary
pursuant to Section 3 hereof through the end of the
month in which Executive's disability occurred plus
an amount equal to six (6) months salary. Employer
shall also continue to provide Executive with any
benefits it provided Executive prior to his
disability for a period of six (6) months following
his disability and shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability.
c. The compensation set forth in Sections a. and b. of
this Section 12 shall be in lieu of any other
benefits provided hereunder, except that (i) in the
event of a change in control of the Bank as defined
herein during the ninety (90) day or six (6) month
periods described in Sections a. and b. of this
Section 12, Executive, Executive's
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designated beneficiary or Executive's estate, as the
case may be, shall be entitled to the benefits of
Section 10.b. hereof, and (ii) any benefit payable
pursuant to Section 3 shall be prorated and made
available to Executive or his beneficiary or estate
in respect of any period prior to his death or
disability. and (iii) in the event of Executive's
disability, Employer shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability. The Bank may
maintain insurance on its behalf to satisfy in whole
or in part the obligations of this Section 12.
d. Executive shall be deemed disabled if, by reason of
physical or mental impairment, he is incapable of
performing his duties hereunder for a period of 180
consecutive days.
13. Notices. Any notice required or desired to be given under
this Agreement shall be deemed given if in writing sent by
certified mail to his residence in the case of Executive, or
to its principal office in the case of Employer.
14. Waiver of Breach. The waiver of Employer of a breach of any
provision of this Agreement by Executive shall not operate or
be construed as a waiver of any subsequent breach by
Executive. No waiver shall be valid unless in writing and
signed by an authorized officer of Employer.
15. Assignment. Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly,
Executive may not assign any of his rights or delegate any of
his duties or obligations under this Agreement. The rights
and obligations of Executive under this Agreement shall inure
to the benefit of and shall be binding upon the successors
and assigns of Employer.
16. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida.
17. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto regarding employment of
Executive, and supersedes and replaces any prior agreement
relating thereto. It may not be changed orally but only by an
agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension,
or discharge is sought.
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WHEREAS, as of the day and date first above set forth, the
parties hereto execute this Agreement.
GULF COAST BANCORP, INC. LEWIS S. ALBERT
By By
--------------------- -------------------------
GULF COAST COMMUNITY
BANK (PROPOSED)
By
---------------------
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EXHIBIT 10.3
[DRAFT] EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of the________day of______________, 1997,
by and among Gulf Coast Bancorp, Inc., a Florida corporation (the "Holding
Company"), Gulf Coast Community Bank, National Association (Proposed), a
proposed national bank to be organized under the laws of the United States (the
"Bank" or the "Employer"), and _______________ (the "Executive").
WITNESSETH:
WHEREAS, the directors and organizers of the Bank, are seeking
approval from the Comptroller of the Currency ("OCC") and the Federal Deposit
Insurance Corporation ("FDIC") to charter a national bank in Port Charlotte,
Florida; and
WHEREAS, Executive is willing to become employed by the Bank as its
President and General Counsel of the Bank in accordance with the terms and
conditions hereinafter set forth:
1. Employment. Employer employs Executive and Executive accepts
employment upon the terms and conditions set forth in this Agreement.
2. Term. The term of employment of Executive under this Agreement shall
commence on the Executive's first day of employment with the Bank (the
"Start Date") and end two years after the Bank's receipt of a charter
from the OCC. If this contract is not renewed or renegotiated prior to
the end of the two year term, it will be treated as a termination
without cause and compensated as indicated in paragraph 11.b.
3. Compensation.
For all services rendered by Executive, Executive shall be paid a
minimum annual base salary of $96,000.00 from the Bank, payable in
equal semi-monthly installments during the term of this Agreement.
Salary payments shall be subject to withholding and other applicable
taxes.
4. Title and Duties. Executive shall serve as President and General
Counsel of the Holding Company and of the Bank once the OCC has
granted preliminary charter approval. Executive shall run the
day-to-day operating activities of the Bank and assist the Chief
Executive Officer in managing the bank's affairs; leads bank's efforts
at community relations and business development; serves as bank's
internal legal counsel and human resources officer; coordinates all
marketing efforts; serves as bank's compliance and CRA officer.
<PAGE> 2
5. Extent of Services. Executive shall devote his entire time, attention
and energies to the business of Employer and shall not during the term
of this Agreement be engaged in any other business activity which
requires the attention or participation of Executive during normal
business hours of Employer, recognition being given to the fact that
Executive is expected on occasion to participate in client development
after normal business hours. However, Executive may invest his assets
in such form or manner as will not require his services in the
operation of the affairs of the companies in which such investments
are made, except that Executive shall not make an investment in the
securities of any competing financial institution without the express
approval of the Board of Directors of the Bank. Executive shall notify
Employer of any significant participation by him in any trade
association or similar organization.
6. Working Facilities. Executive shall receive from the Bank, such
assistants, perquisites, facilities and services as are suitable to
his position and appropriate for the performance of his duties on
behalf of such entity. In addition, the Bank shall provide Executive
membership in a country or golf club (including dues, assessments and
initiation fees) of his choice and Executive shall have the option at
the termination of his employment for any reason to repurchase said
membership from the Bank.
7. Expenses. Executive may incur reasonable expenses for promoting the
business of the Bank, including expenses for entertainment, travel,
and similar items. Executive will be reimbursed by the Bank for all
such expenses upon Executive's periodic presentation of an itemized
account of such expenditures with receipts attached.
8. Vacations. Executive shall be entitled each year to four (4) weeks of
vacation time in accordance with the personnel policy established by
the Bank's Boards of Directors, during which time Executive's
compensation shall be paid in full.
9. Additional Compensation. As additional Consideration paid to
Executive, Executive shall be provided with and participate in all
employee benefit plans offered by the Bank to all of its employees,
including health, hospitalization, disability, life insurance, travel
insurance, retirement and savings plans. In addition, Executive shall
be provided with a term life insurance policy of at least $200,000,
which shall include an accidental death or dismemberment provision of
two times the face amount of the policy. The Holding Company shall
also grant to Executive the option to purchase 20,000 shares of Common
Stock of the Holding Company at a purchase price equal to the price at
which the stock is offered and sold investors through the Public
Placement Memorandum. These options shall vest at the rate of ten
percent (10%) or two thousand (2,000) options per year, beginning on
the Executive's Start Date and on each of the nine (9) subsequent
anniversary dates, and shall be exercisable for a period of ten (10)
years from such Start Date.
10. Change in Control of the Bank.
a. In the event of a "change in control" of the Bank, as defined
herein, and only to the
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extend permitted by applicable statutes and regulations,
Executive shall be entitled, for a period of thirty (30) days
from the date of closing of the transaction effecting such
change in control and at his election, to give written notice
to Employer of termination of this Agreement and to receive a
cash payment equal to one time (100%) the compensation,
including incentive compensation, if any, received by
Executive in the one-year period immediately preceding the
change in control. In the event "change in control" shall
occur within the first year of this Agreement, the severance
compensation shall be equal to the payments due during the
first year of the Agreement. The severance payments provided
for in this Section 10.a. shall be paid in cash, commencing
not later than ten (10) days after the date of notice of
termination by Executive under this Section 10 or ten (10)
days after the date of closing of the transaction effecting
the change in control of the Bank, whichever is later.
b. In addition, if Executive elects to terminate this Agreement
pursuant to this Section 10, Executive shall further be
entitled, in lieu of shares of Common Stock of the Bank
issuable upon exercise of stock options to which Executive is
entitled under this Agreement, an amount in cash or Common
Stock of the Bank or any other company into which shares of
the Bank are convertible (or any combination thereof) as
Executive shall in his election designate equal to the excess
of the fair market value of the Common Stock as of the date
of closing of the transaction effecting the change in control
over the per share exercise price of the options held by
Executive, times the number of shares of Common Stock subject
to such options (whether or not then fully exercisable). The
fair market value of the Common Stock shall be equal to the
higher of (i) the value as determined by the Board of
Directors of the Bank if there is no organized trading market
for the shares at the time such determination is made, which
per share value shall not be less than 1.8 times the per
share book value of the stock or (ii) the closing price (or
the average of the bid and asked prices if no closing price
is available) on any nationally recognized securities
exchange or association on which the Bank's shares may be
quoted or listed, or (iii) the highest per share price
actually paid for Common Stock in connection with any change
in control of the Bank. The severance payments provided for
in this Section 10.b. shall be paid in full not later than
ten (10) days after the date of notice of termination by
Executive under this Section 10 or ten (10) days after the
date of closing of the transaction effecting the change in
control of the Bank, whichever is later.
c. For purposes of this Section 10, "change in control" of the
Bank shall mean:
1. any transaction, whether by merger, consolidation,
asset sale, tender offer, reverse stock split, or
otherwise, which results in the acquisition or
beneficial ownership (as such term is defined under
rules and regulations promulgated under the
Securities Exchange Act of 1934, as amended) by any
person or entity or group of persons or entities
acting in concert, of 50% or more of the outstanding
shares of Common Stock of the Bank.
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<PAGE> 4
2. the sale of all or substantially all of the assets
of the Bank; or
3. the liquidation of the Bank.
d. If any payments to be made under this Section 10 constitute
an "Excess Parachute Payment" as that term is defined in
Section 280(g) of the Internal Revenue Code, the payments
shall be reduced to the largest amount which would not
constitute an "Excess Parachute Payment."
11. Termination.
a. For Cause. This Agreement may be terminated by the
Board of Directors of the Employer without notice
and without further obligations other than for
monies already paid, for any of the following
reasons:
i. failure of Executive to follow reasonable
written instructions or policies of the
Board of Directors of the Bank;
ii. gross negligence or willful misconduct of
Executive materially damaging to the
business of the Bank during the term of
this Agreement, or at any time while he was
employed by the Bank prior to the term of
this Agreement, if not disclosed to the
Bank prior to the commencement of the term
of this Agreement; or
iii. conviction of Executive during the term of
this Agreement of a crime involving breach
of trust or moral turpitude; or
iv. at the request of any bank regulatory
authority with jurisdiction over the Bank.
In the event that the Employer discharges Executive alleging
"cause" under this Section 11.a. and it is subsequently
determined judicially that the termination was "without
cause," then such discharge shall be deemed a discharge
without cause subject to the provisions of Section 11.b.
hereof. In the event that the Employer discharges Executive
alleging "cause" under this Section 11.a, such notice of
discharge shall be accompanied by a written and specific
description of the circumstances alleging such "cause". The
termination of Executive for "cause" shall not entitle the
Bank to enforcement of the non-competition and
non-solicitation covenants contained in Section 13 hereof,
unless the employee purposely engages in conduct constituting
"cause" for the purpose of negating the non-competition
provision.
b. Without Cause.
i. Notwithstanding the provisions of Section 2 of this
Agreement, the Employer may, upon thirty (30) days'
written notice to Executive, or by the giving of a
notice
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<PAGE> 5
under Section 2 of this Agreement terminate this
Agreement without cause at any time during the term
of this Agreement upon the condition that Executive
shall be entitled, as liquidated damages in lieu of
all other claims, to the same severance payments as
provided in Section 10 hereof; provided that for
purposes of Section 10.b., the fair market value of
Common Stock shall be determined as of the date of
notice of termination of this Agreement given by the
Bank to Executive. The severance payments provided
for in this Section 11.b. shall commence not later
than thirty (30) days after the actual date of
termination of employment of Executive.
ii. Executive may upon thirty (30) days' written notice
to Employer terminate his Agreement without cause at
any time during the term of this Agreement. In the
event of termination of this Agreement by Executive,
the Employer shall have no further obligation to
Executive than for monies paid.
12. Death or Disability.
a. In the event of Executive's death during the term of
this Agreement, Employer shall pay to Executive's
designated beneficiary, or if Executive has failed
to designate a beneficiary, to his estate, an amount
equal to Executive's base salary pursuant to Section
3 hereof through the end of the month in which
Executive's death occurred plus an amount equal to
ninety (90) days salary. Employer shall also
continue to provide Executive's survivors with any
benefits it provided Executive for such additional
ninety (90) day period.
b. In the event of Executive's disability during the
term of this Agreement, Employer shall pay to
Executive an amount equal to Executive's base salary
pursuant to Section 3 hereof through the end of the
month in which Executive's disability occurred plus
an amount equal to six (6) months salary. Employer
shall also continue to provide Executive with any
benefits it provided Executive prior to his
disability for a period of six (6) months following
his disability and shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability.
c. The compensation set forth in Sections a. and b. of
this Section 12 shall be in lieu of any other
benefits provided hereunder, except that (i) in the
event of a change in control of the Bank as defined
herein during the ninety (90) day or six (6) month
periods described in Sections a. and b. of this
Section 12, Executive, Executive's designated
beneficiary or Executive's estate, as the case may
be, shall be entitled to the benefits of Section
10.b. hereof, and (ii) any benefit payable pursuant
to Section 3 shall be prorated and made available to
Executive or his beneficiary or estate in respect of
any period prior to his death or disability. and
(iii) in the event of Executive's
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disability, Employer shall continue to pay the
premiums on any life and disability policies
provided by the Employer for the benefit of
Executive prior to his disability. The Bank may
maintain insurance on its behalf to satisfy in whole
or in part the obligations of this Section 12.
d. Executive shall be deemed disabled if, by reason of
physical or mental impairment, he is incapable of
performing his duties hereunder for a period of 180
consecutive days.
13. Notices. Any notice required or desired to be given under
this Agreement shall be deemed given if in writing sent by
certified mail to his residence in the case of Executive, or
to its principal office in the case of Employer.
14. Waiver of Breach. The waiver of Employer of a breach of any
provision of this Agreement by Executive shall not operate or
be construed as a waiver of any subsequent breach by
Executive. No waiver shall be valid unless in writing and
signed by an authorized officer of Employer.
15. Assignment. Executive acknowledges that the services to be
rendered by him are unique and personal. Accordingly,
Executive may not assign any of his rights or delegate any of
his duties or obligations under this Agreement. The rights
and obligations of Executive under this Agreement shall inure
to the benefit of and shall be binding upon the successors
and assigns of Employer.
16. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Florida.
17. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto regarding employment of
Executive, and supersedes and replaces any prior agreement
relating thereto. It may not be changed orally but only by an
agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension,
or discharge is sought.
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WHEREAS, as of the day and date first above set forth, the
parties hereto execute this Agreement.
GULF COAST BANCORP, INC. TODD H. KATZ
By By
---------------------- ------------------------
GULF COAST COMMUNITY
BANK (PROPOSED)
By
----------------------
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EXHIBIT 10.4
[SON CORPORATION LETTERHEAD]
FINANCIAL FACILITIES
LEASE AGREEMENT
This agreement made and entered into by and between SON Corporation, Wichita,
Kansas, hereinafter called "Lessor", and GULF COAST BANCORP, INC. hereinafter
called "Lessee".
WITNESSETH:
Whereas, Lessee is desirous of leasing a New 28' x 70' SON Financial Facility
and, whereas Lessor desires to furnish, equip, and lease such structure to
Lessee upon the terms and conditions hereinafter contained. Now, therefore, in
consideration of the mutual covenants hereinafter contained, the parties do
hereby agree as follows:
1.) STRUCTURE. Lessor proposes to furnish to Lessee the SON FINANCIAL
FACILITYas per attached Exhibit "A" Drawing # 28709709 , and Exhibit "B"
Specifications.
PERMIT PROCUREMENT. LESSOR SHALL FURNISH FLOOR PLANS AND ELEVATIONS. LESSEE
SHALL BE RESPONSIBLE FOR OBTAINING ALL REQUIRED BUILDING/CONSTRUCTION PERMITS,
PAYMENT OF FEES FOR REQUIRED PERMITS, AND STAMPED ENGINEERS FOUNDATION PLANS,
AND THE COSTS THEREOF.
2.) DELIVERY. Since the intended Lessee to this Agreement, Gulf Coast Community
Bank (in organization), requires regulatory approvals from the Office of the
Comptroller of the Currency (the "OCC") and the Federal Deposit Insurance
Corporation (the "FDIC") before it becomes a viable entity (the "Preliminary
Approval"), this Agreement will not become valid and effective until such
Preliminary Approval is granted. Lessor agrees to deliver said SON FINANCIAL
FACILITY to Lessee's jobsite (location) Port Charlotte, Florida within 60 days
of receipt of City and Preliminary Approvals. Lessor shall provide the
transportation of the preconstructed sections, with its special vehicles to
Lessee's construction jobsite. SON Corporation shall not attempt to transport
the building onto the jobsite during conditions of severe ground moisture
unless the Lessee is willing to assume any and all charges resulting from
increased labor, materials and/or equipment requirements. If delays occur
during transit due to accidents or Acts of God, then Lessor's responsibility
shall be limited to expedient repairs or replacement of facility. Lessee shall
provide a temporary electrical service pole on the site prior to arrival of the
modular units. The pole shall be placed by coordination with Lessor so as to
avoid interference with delivery and workmen. Wheels, axles, hitches, and
associated hardware are the property of Lessor and are used exclusively for the
transportation of the modular units. All above mentioned transportation
equipment will be removed and retained by Lessor after delivery. Should Lessee
elect to purchase said equipment, these items shall be specifically listed on
Exhibit "B" Specification sheet and the contract price will then be adjusted to
include these items.
3.) SETTING. Lessor agrees to deliver and set the facility on a foundation
provided by Lessee. Lessee agrees to construct the foundation and access ramp
as designed and as instructed by Lessor. The receiving foundation shall be
true, square and plumb with a smooth and level top surface. Foundation is built
in strict compliance with drawings furnished by Lessee's engineer, based on
information provided by the Lessor.
<PAGE> 2
FINANCIAL FACILITIES LEASE AGREEMENT...PAGE TWO
Lessor's craftsmen shall be allowed TEN (10) full working days, without
interference or interruption from other crafts, equipment, vehicles or
materials. Lessor's experienced installation craftsmen are NON-union. If the
Lessee wishes to have any or all of the installation work performed by other
contractors, the cost of such services and any related equipment used by them
shall be paid for directly by Lessee to such contractors and/or subcontractors.
There shall be no deduction from Lessor's contract amount, as our craftsmen
shall remain on the job in the capacity of "consultants".
IF LESSEE CONTRACTS WITH OUTSIDE SOURCES TO PERFORM WORK DURING INSTALLATION
FOR WORK WHICH IT BELIEVES TO BE THE RESPONSIBILITY OF LESSOR, THEN LESSEE MUST
RECEIVE LESSORS WRITTEN CONSENT PRIOR TO SAID WORK BEING PERFORMED; LESSEE'S
FAILURE TO RECEIVE SUCH PRIOR CONSENT WILL RESULT IN LESSOR NOT BEING
RESPONSIBLE FOR COSTS INCURRED FOR SAID WORK. ANY REQUIREMENTS OR CHANGES MADE
TO THE BUILDING AS A RESULT OF LOCAL BUILDING CODE REQUIREMENTS, WILL BE AN
ADDITIONAL COST TO THE LESSEE.
Any delays caused to Lessor, by Lessee, either in delivery or installation,
except in Acts of God, shall result in additional costs to Lessee. All taxes,
including State sales tax, shall be paid by Lessee. Lessee agrees that the site
selected for said structure shall not violate any zoning laws or regulations,
or sanitation or health code regulations. Lessee shall be responsible for the
installation and connection of all utilities, including the installation and
connection of electrical service to the main panel, electrical service to the
heating and air-conditioning condensers, and hook up of furnished, precharged
freon lines. Plumbing supply and drain lines to the building, interconnects
between plumbing stub outs, and crossover connections between modular sections
shall be provided by Lessee. Telephone or security conduit, when installed by
Lessor, shall be limited to contract specifications, and will only include such
conduit as specified to be installed and terminated six inches (6") below the
base of the floor. Connections between conduit runs will not be installed by
the Lessor. Other sitework such as retaining walls, ramping, curbs, surfacing,
and landscaping shall be the responsibility of Lessee. Upon termination of
lease, the Lessee shall be responsible for disconnection of all utilities. This
is to include proper disconnection of the air-conditioning system by licensed
tradesmen. Lessee shall provide a ramp for the removal of the building similar
to the ramp required for delivery of the building. Lessee shall remove any
perimeter walls and obstructions to provide Lessor free and clear access to
remove the building. In the event, in Lessor's judgment, it becomes necessary
to use a crane to make this installation, Lessor is authorized to contract for
said crane and add the cost of said crane as an additional item to Lessee's
cost.
4.) TERMS AND RENTAL. The terms of this lease shall be for a period of twelve
(12) months . Lessee agrees to pay to Lessor the sum of $ 3,750.00 per month
plus monthly sales tax in advance as and for rent commencing upon placement of
the modular building onto the foundation, or by (date) February 1st, 1998
whichever is sooner, and continuing each month thereafter for eleven (11)
consecutive months. An amount of $ 7,650.00 shall be paid to Lessor upon
signing this contract; and, said sum shall be treated by Lessor as payment of
the last month's rent of $ 3,750.00 , security/maintenance deposit of $ 200.00
, and delivery/set-up cost of $ 3,700.00 . All monthly lease payments are due
no later than the established first day of the lease. All delivery and set
charges are based on the normal working hours of 8am to 5pm, Monday through
Friday (holidays excluded). In the event that the Lessee requests SON
Corporation's crews to perform in an exception to the standard hours as stated
above, then the delivery and set charge will be adjusted accordingly to allow
fair and reasonable compensation to SON Corporation.
5.) OPTION TO RENEW. Lessee is hereby granted the option to renew this lease,
from month-to-month, at a current market rate. It is agreed by Lessee that such
option shall be exercised in writing, addressed to
<PAGE> 3
FINANCIAL FACILITIES LEASE AGREEMENT...PAGE THREE
Lessor at its principal place of business, and mailed by certified mail to
Lessor at least 60 days prior to the expiration of the primary term of lease.
In the event Lessee exercises its option under this paragraph, Lessee shall be
required to give Lessor 60 days written notice of its intent to terminate its
month-to-month tenancy.
6.) INSURANCE. Lessor agrees to provide property damage insurance for said
building and equipment as supplied by Lessor insuring the same against fire,
wind and hail damage. Lessee shall be responsible for all other insurance,
including but not limited to liability insurance.
7.) TAXES AND ASSESSMENTS. Lessee agrees that it shall be responsible for
payment of all taxes, liens, assessments, or any other claims which may be
levied or asserted against said structure while in the care, custody, and
control of Lessee; and whether asserted as claims against real property,
personal property, or otherwise. In the event of default by Lessee, Lessee
agrees to indemnify and hold harmless Lessor from any and all loss resulting to
Lessor from Lessee's failure to timely discharge such obligation.
8.) MAINTENANCE. Lessor agrees that it shall be solely responsible for care,
maintenance and up-keep of said structure and equipment during the time this
lease is in effect. Upon expiration of the term of this lease, or any renewal
thereof, Lessee shall return said structure to Lessor in the same condition as
delivered to Lessee, less reasonable wear. Lessor authorizes Lessee, in cases
of emergency, to contact responsible local service people for repairs of less
than $100.00 value. Repairs of greater value must be authorized in writing, or
via the telephone, with an officer of SON Corporation.
** SECURITY/MAINTENANCE DEPOSIT. Lessee agrees to a deposit of $200.00 per
modular section to be paid by the Lessee as part of the initial contract
deposit and designated as the SECURITY/MAINTENANCE DEPOSIT. Within 15 days of
termination of the lease, Lessor shall conduct an inspection of the building
condition and physical inventory. All monies shall be returned to Lessee upon
determination that the building and contents have been maintained in a
responsible condition, minus reasonable wear and tear, and the building,
carpet, and contents are clean, have all refuse removed, and returned to the
Lessor in a "ready to occupy" condition. Such deposit monies may be retained by
Lessor to correct any construction alterations to the original configuration of
the modular units which have not been corrected by the Lessee or his agents
prior to vacating the facility. Such monies may also be retained as
compensation for improper disconnection of the air-conditioning system which
have resulted in additional expense to the Lessor.
9.) DEFAULT. In the event of default of Lessee of any provision of this
agreement, Lessor shall have the right to declare this agreement null and void
upon 15 days written notice to Lessee, and, to prepare and remove said
structure from the site where it may be located, and Lessee shall be
responsible for any and all costs incurred by Lessor in connection with its
repossession of said structure. Further, it is agreed by the parties hereto
that in the event of Lessee's default of any provision of this agreement,
Lessor shall be entitled to retain all sums paid to it by Lessee as liquidate
damages, and shall have the right to legal recourse upon this agreement for any
and all sums due it under the terms of this agreement.
10.) ASSIGNMENT. Both parties agree and understand that the proposed bank
subsidiary of Gulf Coast Bancorp, Inc., Gulf Coast Community Bank (in
organization), requires regulatory approvals from the OCC and the FDIC before
it becomes a viable entity, and that this Agreement will not become valid and
effective until such Preliminary Approval is granted. At that time when the
Preliminary Approval is granted, this
<PAGE> 4
FINANCIAL FACILITIES LEASE AGREEMENT...PAGE FOUR
Agreement will be automatically modified so that Gulf Coast Bancorp, Inc. will
have assigned all of its interests in the equipment and the lease to Gulf Coast
Community Bank (in organization).
With the aforementioned exception regarding the mandatory assignment to Gulf
Coast Community Bank (in organization), Lessee shall not transfer, assign,
sell, sublet or otherwise dispose of any of Lessee" interest in any equipment
or this lease, and any attempt by Lessee to accomplish the same without
Lessor's consent shall be void. Lessor may, at any time, without notice to
Lessee, mortgage, grant security interests in or otherwise transfer, sell or
assign all or any part of its interest in this lease or any equipment or any
rent or other sums due or to become due hereunder. In the event Lessor
transfers any schedule or schedules, Lessor shall provide a copy of the lease
to assignee along with the original lease schedule(s). In such event, the terms
of the lease shall be incorporated into the schedule(s). Any such schedule(s)
which has been assigned shall constitute a separate and distinct Lease in the
hands of such assignee. Lessee agrees that the rights hereunder of any assignee
or creditor of Lessor shall not be subject to any defense, set-off or
counterclaim that Lessee may have against Lessor, and that any such assignee or
creditor shall have all of Lessor's rights hereunder, but none of Lessor's
obligation. The foregoing notwithstanding, no such assignment or encumbrance
shall release any of Lessor's obligations hereunder or any claim which Lessee
may have against Lessor. Lessee acknowledges that any assignment or transfer by
Lessor shall not materially change Lessee's duties of obligations under this
lease nor materially increase the risks or liabilities imposed on Lessee.
Lessee further agrees that even if any transfer would be deemed to materially
affect its interests, such transfer is hereby permitted.
OPTIONS
A.) Gulf Coast Community Bank (in organization) may purchase at the end of one
(1) year for $83,000.00
B.) Purchase price is $133,500.00
ACCEPTED BY: SUBMITTED BY:
GULF COAST BANCORP, INC. SON CORPORATION
Port Charlotte, Florida Wichita, Kansas
BY: BY:/s/
----------------------------------- ---------------------------------
Date: Date: 8-6-97
---------------------- -------------------------------
This is not a firm and binding contract until accepted by an Executive Officer
of SON CORPORATION.
ACCEPTED BY:
BY:
---------------------------------
Date:
---------------------
<PAGE> 5
EXHIBIT "A"
[Floor Plan]
<PAGE> 6
SON
CORPORATION
EXHIBIT "B"
"STRUCTURAL SPECIFICATIONS"
FLOOR JOISTS -- 2" x 8" on 16" centers
FLOOR DECKING -- two layers of 3/4" tongue and groove plywood
FLOOR FINISH -- commercial 30oz jute back carpet with pad, vinyl in the baths
WALL STUDS -- 2" x 4" on 16" centers
EXTERIOR WALL SHEATING -- 1/2" CDX plywood, glued and nailed horizontally
INTERIOR WALLS -- 1/2" sheetrock, taped, bedded and painted
EXTERIOR FINISH -- Hardy panel
ROOF -- 3/12 pitched roof with three-tab asphalt shingles
CEILING -- 8' high, drop ceiling with 2' x 4' tile
INSULATION -- R-11 floor, R-11 exterior walls, R-19 ceiling
INTERIOR DOORS -- solid core, prefinished wood, prefinished wood trim
EXTERIOR DOOR -- commercial front glass door with closure, aluminum frame with
tinted glass and deadbolt; one rear metal exit door with closure and deadbolt
INTERIOR WINDOW -- 30" x 60"
EXTERIOR WINDOWS -- 30" x 60" insulated, double glazed, tinted in anodized
aluminum frame
BATH -- half bath with lavatory, polished edge mirror, tissue holder, six
gallon water heater, exhaust fan in bath with vent through the roof
PLUMBING -- per UPC, sweat copper supply lines, ABS drain waste and vents, per
code
WIRING -- copper wiring in conduit, per National Electric Codes
INTERIOR LIGHTING -- fluorescent, four-tube, recessed lighting, per code
8/97
<PAGE> 7
EXHIBIT "B"
STRUCTURAL SPECIFICATIONS
continued
EXTERIOR LIGHTING -- front and back doors
HEATING SYSTEM -- standard heat duct system with registers, heat/cool
thermostat, electric, per engineering recommendations; gas is optional
COOLING SYSTEM -- air-conditioning with wiring ready for connections, per
engineering recommendations
COUNTER TOPS AND CHECK WRITING STAND -- plastic laminate (Wilson Art)
TRAP DOOR FOR ACCESS UNDER THE BUILDING
GULF COAST BANCORP,INC., Florida 8/97
<PAGE> 1
EXHIBIT 10.5
STOCK PURCHASE WARRANT
Gulf Coast Bancorp, Inc.
COMMON STOCK
($.01 Par Value)
Dated December___, 1997
FIELD (7) Shares
- --------- Void After December___, 2007
This certifies that, for value received, FIELD(2) FIELD (3) FIELD (4)
----------------------------
his/her successors and assigns, is entitled, upon the due exercise hereof at
any time during the period commencing on __________, 1997 and terminating at
5:00 p.m. E.D.T. on ________ __, 2007, to purchase FIELD (7) shares of Common
---------
Stock, par value $.01 per share, of Gulf Coast Bancorp, Inc. (hereinafter
called the "Company"), such number of shares being subject to adjustment upon
the occurrence of the contingencies set forth in this Warrant. The purchase
price, payable upon the exercise of this Warrant, shall be $10.00 per share
(hereinafter referred to as the "Exercise Price"), subject to adjustment upon
the occurrence of the contingencies set forth in this Warrant. This Warrant is
granted in consideration of the Organizers' efforts in organizing the Company
and Gulf Coast Community Bank, N.A. (the "Bank"), the Company's sole
subsidiary, and the attendant personal financial risks they have undertaken.
Shares issuable upon exercise of this Warrant are hereinafter referred to as
the "Warrant Shares."
Upon delivery of this Warrant with the subscription form annexed
hereto, duly executed, together with payment of the Exercise Price of the shares
of Common Stock thereby purchased (which payment may be made by collected
funds), at the offices of the Company or at such other address as the Company
may designate by notice in writing to the registered holder hereof, the
registered holder of this Warrant shall be entitled to receive a certificate or
certificates for the shares of Common Stock so purchased.
This Warrant is subject to the following terms and conditions:
1. Vesting Period.
This Warrant shall vest in increments of twenty-five percent (25%)
commencing upon the date of this Warrant and on each anniversary date
thereof such that on the third anniversary, the Warrant is fully
vested.
2. Exercise of Warrant.
This Warrant, to the extent vested as provided in Section 1 herein, may
be exercised during the period commencing on ___________, 1997 and
ending at 5:00 p.m. E.D.T. on ___________, 2007, in whole at any time
or in part from time to time, but not as to a fractional share of
Common Stock. In case of any partial exercise of this Warrant, the
Company shall execute and deliver a new Warrant of like tenor and date
for the balance of the shares of Common Stock purchasable hereunder.
<PAGE> 2
STOCK PURCHASE WARRANT
Page 2
3. Restrictions on Transferability.
This warrant shall not be transferable by an Organizer otherwise than
by will or by the laws of descent and distribution.
4. Adjustment of Exercise Price and Number of Shares Purchasable
Hereunder.
The Exercise Price and the number of Warrant Shares purchasable upon
the exercise of the Warrant are subject to adjustment from time to time
upon the occurrence of the events enumerated in this Section 4.
(a) In case the Company shall at any time after the date of this
Agreement
i) declare a dividend on the Common Stock payable in
shares of its capital stock (whether shares of Common
Stock or of capital stock of any other class),
ii) subdivide the outstanding Common Stock,
iii) combine the outstanding Common Stock into a smaller
number of shares,
iv) issue any shares of its capital stock in a
reclassification of the Common Stock (including any
such reclassification in connection with a
consolidation or merger in which the Company is the
continuing corporation), or
v) engage in any other recapitalization,
the Exercise Price in effect at the time of the record date
for such dividend or of the effective date of such
subdivision, combination, reclassification or
recapitalization, shall be proportionately adjusted so that
the holder of the Warrant exercised after such time shall be
entitled to receive the aggregate number and kind of shares of
capital stock which, if such Warrant had been exercised
immediately prior to such date, he would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination, reclassification or
recapitalization. Such adjustment shall be made successively
whenever any event listed above shall occur.
(b) In case the Company shall fix a record date for the making of
a distribution to all holders of Common Stock (including any
such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of
evidence of indebtedness or assets (other than cash dividends
or cash distributions payable out of consolidated earnings or
earned surplus or dividends payable in Common Stock) or
subscription rights or warrants, the Exercise Price to be in
effect
<PAGE> 3
STOCK PURCHASE WARRANT
Page 3
after such record date shall be determined by multiplying the
Exercise Price in effect immediately prior to such record date
by a fraction, of which
i) the numerator shall be the current market price per
share of Common Stock (as defined in Section 4(c)),
on such record date, less the fair market value (as
determined by the Board of Directors of the Company,
whose determination shall be conclusive) of the
portion of the assets or evidences of indebtedness so
to be distributed or of such subscription rights or
warrants applicable to one share of Common Stock, and
of which
ii) the denominator shall be such current market price
per share of Common Stock. Such adjustment shall be
made successively whenever such a record date is
fixed; and in the event that such distribution is not
so made, the Exercise Price shall again be adjusted
to be the Exercise Price which would then be in
effect if such record date had not been fixed, but
such subsequent adjustment shall not affect the
number of Warrant Shares issued upon any exercise of
the Warrant prior to the date such adjustment is
made.
(c) For the purpose of any computation under Section 4 (b) the
current market price per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices
for the 30 consecutive trading days immediately preceding the
date of determination. The closing price for each day shall be
the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and
asked prices regular way, on the principal national securities
exchange on which the Common Stock is listed or admitted to
trading, or if the Common Stock is not listed or admitted to
trading on any national securities exchange, the average of
the highest reported bid and lowest reported asked prices as
furnished by the National Association of Securities Dealers
("NASD") or similar organization if the NASD is no longer
reporting such information, or, if not so available, the fair
market price as determined by the Board of Directors of the
Company.
(d) No adjustment in the Exercise Price shall be required unless
such adjustment would require an increase or decrease of at
least one cent ($.01) in such price; provided, however, that
any adjustments which by reason of this Section 4(d) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 4 shall be made to the nearest cent or to the
nearest one-hundredth of a share, as the case may be.
(e) In the event that at any time, as a result of an adjustment
made pursuant to Section 4(a) the holder of the Warrant
thereafter exercised shall become entitled to receive any
shares of capital stock of the Company other than shares of
Common Stock, thereafter the number of such other shares so
receivable upon exercise of the Warrant shall be subject to
adjustment from time to time in a manner and on terms
<PAGE> 4
STOCK PURCHASE WARRANT
Page 4
as nearly equivalent as practicable to the provisions with
respect to the Common Stock purchasable pursuant to this
Warrant.
(f) Upon each adjustment of the Exercise Price as a result of the
calculations made in Section 4(a) or (b), the Warrant
outstanding immediately prior to the making of such adjustment
shall thereafter evidence the right to purchase, at the
adjusted Exercise Price, that number of Warrant Shares
(calculated to the nearest hundredth) obtained by
i) multiplying the number of Warrant Shares purchasable
upon exercise of the Warrant immediately prior to
such adjustment of the number of Warrant Shares by
the Exercise Price in effect immediately prior to
such adjustment of the Exercise Price and
ii) dividing the product so obtained by the Exercise
Price in effect immediately after such adjustment of
the Exercise Price.
(g) In case of any capital reorganization of the Company, or of
any reclassification of the Common Stock (other than a change
in par value, or from par value to no par value, or from no
par value to par value, or as a result of subdivision or
combination), or in case of the consolidation of the Company
with or the merger of the Company with any other corporation
or association (other than a consolidation or merger in which
i) the Company is the continuing corporation and
ii) the holders of the Company's Common Stock immediately
prior to such merger or consolidation continue as
holders of Common Stock after such merger or
consolidation)
or of the sale of the properties and assets of the Company, as
or substantially as, an entirety to any other corporation or
association, the Warrant shall after such reorganization,
reclassification, consolidation, merger or sale be
exercisable, upon the terms and conditions specified in this
Agreement, for the number of shares of stock or other
securities or property to which a holder of the number of
Warrant Shares purchasable (at the time of such
reorganization, reclassification, consolidation, merger or
sale) upon exercise of such Warrant would have been entitled
upon such reorganization, reclassification, consolidation,
merger or sale; and in any such case, if necessary, the
provisions set forth in this Section 4 with respect to the
rights and interests thereafter of the holder of the Warrant
shall be appropriately adjusted so as to be applicable, as
nearly as may reasonably be, to any shares of stock or other
securities or property thereafter deliverable on the exercise
of the Warrant. The subdivision or combination of shares of
Common Stock at any time outstanding into a greater or lesser
number of shares shall not be deemed to be a reclassification
of the Common Stock for the purposes of this
<PAGE> 5
STOCK PURCHASE WARRANT
Page 5
Section 4(g). The Company shall not affect any such
consolidation, merger or sale, unless prior to or
simultaneously with the consummation thereof the successor
corporation or association (if other than the Company)
resulting from such consolidation or merger or the entity
purchasing such assets or other appropriate entity shall
assume, by written instrument executed and delivered to the
Company, the obligation to deliver to the holder of the
Warrant such shares of stock, securities or assets, as in
accordance with the foregoing provisions, such holder may be
entitled to purchase and the other obligations under this
Agreement.
5. Fractional Shares.
Notwithstanding an adjustment pursuant to Section 4(f) in the number of
Warrant Shares purchasable upon the exercise of the Warrant, the
Company shall not be required to issue fractions of Warrant Shares upon
exercise of the Warrant or to distribute certificates which evidence
fractional Warrant Shares. In lieu of fractional Warrant Shares, there
shall be paid to the holder of the Warrant at the time such Warrant is
exercised as herein provided an amount in cash equal to the same
fraction of the current market value of a share of Common Stock. For
purposes of this Section 5, the current market value of a share of
Common Stock shall be the price as determined pursuant to the second
sentence of Section 4(c) for the trading day immediately prior to the
date of such exercise, if applicable.
6. Charges, Taxes and Expenses.
The issuance of certificates of shares of Common Stock upon any
exercise of this Warrant shall be made without charge to the holder
hereof for any tax or other expense in respect to the issuance of such
certificates, all of which taxes and expenses shall be paid by the
Company.
7. Covenants of Issuer.
The Company covenants and agrees that all shares which may be issued
upon the exercise of the rights represented by this Warrant will, upon
issuance, be fully paid and nonassessable and free from all taxes,
liens and charges with respect to the issue thereof (other than taxes
in respect of any transfer occurring contemporaneously with such
issue). The Company further covenants and agrees that during the period
within which the rights represented by this Warrant may be exercised,
the Company will at all times have authorized and reserved a sufficient
number of shares of Common Stock to provide for the exercise in full of
the rights represented by this Warrant. The Company will provide to, or
make available to, as the case may be, the holder of this Warrant the
same information, reports and notices as it shall provide to, or make
available to, the holders of its Common Stock. The Company will not, by
amendment of its Articles of Incorporation or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other
voluntary act or deed, avoid or seek to avoid the performance or
observance of any of the covenants, stipulations or conditions to be
performed or observed by the Company, but will
<PAGE> 6
STOCK PURCHASE WARRANT
Page 6
at all times in good faith, assist, insofar as it is reasonably able,
in the carrying out of the provisions of this Warrant in order to
protect the rights of the holder of this Warrant against dilution.
Without limiting the generality of the foregoing, the Company agrees
that it will not establish or increase the par value of the shares of
Common Stock which are at the time issuable upon exercise of this
Warrant above the then prevailing Exercise Price hereunder and that
before taking any action which would cause an adjustment reducing the
Exercise Price hereunder below the then par value of the shares of
Common Stock issuable upon exercise hereof, the Company will take any
corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of such Common Stock at the Exercise Price as so
adjusted.
8. Holder's Rights.
No holder of this Warrant, as such, shall be entitled to vote or
receive dividends or be deemed to be a shareholder of the Company for
any purpose, nor shall anything contained in this Warrant be construed
to confer upon the holder of this Warrant, as such, any rights as a
shareholder of the Company or any right to vote, give or withhold
consent to any corporate action, receive notice of meetings, receive
dividends, or subscription rights, or otherwise.
9. Call Provisions.
In the event that either the Company or any subsidiary bank receives a
supervisory order from any applicable regulatory body with supervisory
authority to issue such orders to increase the capitalization of either
the Company or any subsidiary bank and no provision to alleviate this
condition is otherwise available to the Company or any subsidiary bank,
then the Company's Board of Directors will be empowered to call on each
of the Warrant holders to exercise his or her Warrants (to the extent
vested as provided in Section 1 herein) at the Exercise Price. The
holder of the Warrants will have twenty (20) business days in which to
deliver this Warrant with the subscription form annexed hereto, duly
executed, together with payment of the Exercise Price of the shares of
Common Stock thereby purchased. In the event the holder of the Warrant
does not exercise his or her vested Warrants, either in whole or in
part, then such vested Warrants (or portion thereof), shall terminate
and become null and void.
10. Registration of Warrant Shares.
Organizer acknowledges and understands that the Warrant Shares are not
registered under the Securities Act of 1933, as amended ("Federal Act")
or under any state securities law.
Nothing contained in this Warrant shall be construed to obligate the
Company to, or to grant any right to the holder of this Warrant to,
cause the Company to file any Registration Statement; or, if any such
Registration Statement is filed, to prepare any additional prospectus,
to file any amendment to the Registration Statement, or to continue
said
<PAGE> 7
STOCK PURCHASE WARRANT
Page 7
Registration Statement in effect.
If at any time during which this Warrant is exercisable according to
its terms there is no effective Registration Statement on file with the
Securities and Exchange Commission covering the shares then acquirable
hereunder, the offer and sale of the Warrant Shares to the holder of
this Warrant must be exempt from the registration requirements of the
Federal Act, and such state securities laws as shall be applicable. The
Company may condition such exercise upon its receipt of such
representations, factual assurances and legal opinions as it shall deem
necessary to determine and document the availability of any such
exemption and may further condition such exercise upon such
undertakings by the holder hereof or such restriction upon the
transferability of the shares to be acquired hereunder as it shall
determine to be necessary to effectuate and protect the claim to any
such exemption.
11. Notices.
If there shall be any adjustment as provided above in Section 4, or if
securities or property other than shares of Common Stock of the Company
shall become purchasable in lieu of shares of such Common Stock upon
exercise of this Warrant, the Company shall forthwith cause written
notice thereof to be sent by registered mail, postage prepaid, to the
registered holder of this Warrant at the address of such holder shown
on the books of the Company, which notice shall be accompanied by an
explanation prepared by independent public accountants (which may be
the Company's independent public accountants) setting forth in
reasonable detail the facts requiring any such adjustment and the
Exercise Price and number of shares purchasable after such adjustment,
or the kind and amount of any such securities or property so
purchasable upon the exercise of this Warrant, as the case may be. At
the request of the holder and upon surrender of this Warrant, the
Company shall reissue this Warrant in a form conforming to such
adjustments.
12. Reissuance of Warrant upon Partial Exercise.
In the event this Warrant is exercised in part, the Company shall cause
to be issued to the exercising Holder to the extent this Warrant is
exercised in part, a new Warrant or Warrants representing the Warrant
Shares as to which this Warrant has not been exercised.
13. Dissolution or Liquidation.
In the event of any proposed dissolution or total liquidation of the
Company, other than in connection with a consolidation, merger or sale
of all, or substantially all, of its property, assets, business and
goodwill as an entirety, the Company shall forthwith cause written
notice hereof to be sent by registered mail, postage prepaid, to the
registered holder of this Warrant at the address of such holder shown
on the books of the Company. Such notice shall be given not later than
30 days prior to any record date fixed for the purpose of determining
shareholders entitled to participate in any liquidating distribution.
<PAGE> 8
STOCK PURCHASE WARRANT
Page 8
14. Lost, Stolen, Mutilated, or Destroyed Warrants.
If this Warrant shall become lost, stolen, mutilated, or destroyed, the
Company shall, on such terms as to indemnity or otherwise as it may in
its discretion impose, issue a new warrant of like denomination, tenor,
and date as the warrant so lost, stolen, mutilated, or destroyed. Any
such new warrant shall constitute an original contractual obligation of
the Company, whether or not the allegedly lost, stolen, mutilated, or
destroyed warrant shall be at any time enforceable by anyone.
15. Applicable Law.
The validity, interpretation, and performance of this Warrant shall be
governed by the laws of the State of Florida.
16. Successors and Assigns.
This Warrant and the rights evidenced hereby shall inure to the benefit
of and be binding upon the successors and assigns of the Company, and
the Holder hereof.
17. Headings.
Headings of the paragraphs in this Warrant are for convenience and
reference only and shall not, for any purpose, be deemed a part of this
Warrant.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officers and its corporate seal to be affixed hereto.
Dated: December __, 1997
<PAGE> 9
STOCK PURCHASE WARRANT
Page 9
GULF COAST BANCORP, INC.
By:
----------------------------------
Lewis S. Albert, Chairman & CEO
ATTEST:
-------------------------------
Todd H. Katz, President & Secretary
(CORPORATE SEAL)
<PAGE> 10
STOCK PURCHASE WARRANT
Page 10
EXHIBIT A
[Subscription form to be executed upon exercise of Warrant]
The undersigned, registered holder of the within Warrant, hereby
(1) subscribes for __________ shares which the undersigned is
entitled to purchase under the terms of the within Warrant,
(2) makes the Exercise Price payment therefor called for by the
within Warrant, and
(3) directs that the shares issuable upon exercise of said Warrant
be issued as follows:
-------------------------------------
(Name)
--------------------------------------
(Address)
--------------------------------------
(Signature)
Dated:
-------------------------
<PAGE> 1
EXHBIT 10.6
REAL ESTATE SALES AGREEMENT
This REAL ESTATE SALES AGREEMENT ("Agreement") is entered into this ______
day of __________________ 19____, ("FINAL EXECUTION DATE") by and between GMRI,
INC., A FLORIDA CORPORATION ("Seller"), having its principal place of business
at 1751 Directors Row, Orlando, Florida 32809; and GULF COAST BANCORP, INC., A
FLORIDA CORPORATION ("Buyer"), having its principal place of business at 4055
Tamiami Trail, Port Charlotte, Florida 33952.
1. PREMISES. Seller agrees to sell to Buyer and Buyer agrees to purchase from
Seller, the Premises described in Exhibit "A" on the terms and conditions set
out in this Agreement.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Premises is
Eight Hundred Seventy Five Thousand and No/100 Dollars ($875,000.00) to be paid
as follows:
a. $25,000.00 in cash, certified check or wire transfer of funds on the
FINAL EXECUTION DATE as earnest money, to be deposited with and held in escrow
by the title company used pursuant to Paragraph 6 hereof (the "Escrow Agent") in
an interest bearing account for the benefit of the parties, the earnest money
and interest ("Initial Deposit") will be credited against the Purchase Price at
"Closing" as defined below; and
b. $25,000.00 in cash, certified check, or wire transfer of funds on or
before the sixtieth (60th) day following the FINAL EXECUTION DATE, as earnest
money, to be deposited with and held in escrow by the title company used
pursuant to paragraph 6 hereof (the "Escrow Agent") in an interest bearing
account for the benefit of the parties, the earnest money and interest ("Second
Deposit") will be credited against the Purchase Price at "Closing" as defined
below; and
c. The balance in cash, or wire transfer of funds upon the consummation
of the sale of the Premises (the "Closing") which will take place on the
"CLOSING DATE" (defined in Paragraph 7).
d. Hereinafter, the "Initial Deposit" and "Second Deposit" shall be
collectively referred to as "Deposit".
3. CORPORATE APPROVAL. Intentionally Omitted.
4. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents to Buyer as
follows, which representations will be deemed reaffirmed by Seller to Buyer as
of the CLOSING DATE:
a. There are no parties in possession of any portion of the Premises other
than Seller.
b. There are no pending or, to the best of Seller's knowledge and
belief, threatened condemnation or similar proceedings affecting the Premises,
or any part thereof;
c. Seller has the present full authority and power to execute this
Agreement and to close the sale of the Premises; and
d. Seller will provide good faith cooperation to Buyer in determining the
matters set forth in Paragraph 6.
5. BUYER'S REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENT. Buyer represents
and warrants to Seller as follows, which representations and warranties will be
deemed reaffirmed by Buyer to Seller as of the CLOSING DATE:
a. Buyer has the present full authority and power to execute this
Agreement and to close the purchase of the Premises;
b. Buyer acknowledges and agrees that the Premises will be conveyed and
transferred to Buyer "as is, where is, and with all faults", if any, and, except
as expressly set forth in this Agreement, Seller does not warrant as to the
merchantability, quantity, quality, condition, suitability or fitness of the
Premises for any purpose whatsoever and will be under no obligation whatsoever
to undertake any repairs, alterations or other work of any kind with respect to
any portion of the Premises. Buyer also acknowledges and agrees that the
provisions in this Agreement for inspection and investigation of the Premises
are adequate to enable Buyer to make Buyer's own determination with respect to
the merchantability, quantity, quality, condition and suitability or fitness of
the Premises for any purpose. On the CLOSING DATE, Seller will be deemed
released by Buyer of and from all liabilities, obligations and claims, known or
unknown, that Buyer may have against Seller or that arise in the future based in
whole or in part upon the presence of toxic or hazardous substances or other
environmental contamination on or within the Premises as such terms or
conditions may now or hereafter be defined or regulated by any federal, state or
local law, ordinance, order, rule, regulation, code or other governmental
restriction or requirement including, but not limited to the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Sec. 9601 et seq. ("CERCLA") and the Resource Conservation Act, as amended, 42
U.S.C. Sec. 6901 et seq. ("RCRA"), or otherwise.
c. Buyer intends to construct, among other improvements, a building to
be utilized as a banking establishment (the "Intended Use").
6. SUITABILITY/DUE DILIGENCE. Buyer, using good faith, diligent efforts,
will have sixty (60) days from the FINAL EXECUTION DATE to determine whether the
Premises is suitable for its Intended Use.
a. Buyer may, at its sole risk, cost and expense conduct or cause to be
conducted such inspections and tests and/or environmental assessments of the
Premises as Buyer deems appropriate, and in this connection, it or its
designated agents may enter upon the Premises for purposes of such inspections
and tests that may be deemed appropriate by Buyer or its agents. However, Buyer
is not authorized to perform any invasive testing of any of the Premises without
obtaining prior authorization from Seller as to the specific procedures which
Buyer seeks to conduct, including the qualifications of the entity performing
the tests. Buyer will restore or repair any damage caused, related to or arising
out of Buyer's conducting of these tests. Buyer agrees to indemnify, hold
harmless and, at Seller's option, defend Seller against any and all claims,
actions, causes of action, expenses, costs, penalties and liabilities arising
out of its inspection of the Premises or that of its employees, agents or
contractors on the Premises, which indemnity will also include the payment of
attorneys' fees and other costs. Prior to entry onto the Premises, Buyer will
provide Seller with a certificate of insurance evidencing commercial liability
coverage, including but not limited to contractual liability, in an amount not
less than $1,000,000.00, with an insurance company reasonably acceptable to
Seller.
b. Seller, at its sole cost and expense, shall obtain and deliver to Buyer,
within 30 days following FINAL EXECUTION DATE, a title insurance commitment from
Commonwealth Land Title Insurance Company, and Buyer shall notify Seller in
writing within 60 days following the FINAL EXECUTION DATE, of any defects in the
title set forth in such commitment which would render title to the Premises
unmarketable or uninsurable. If Seller, after using good faith efforts, is
unable to cure the title objections, Buyer, at its election, may either (i)
accept title as it is, subject to the right to deduct from the Purchase Price
the amount of any liens of a definite amount, not to exceed $10,000, or (ii)
terminate this Agreement. Upon termination, Buyer will receive its Deposit and
both parties will be released from all liability and obligation under this
Agreement, except for the specific indemnification provisions in Paragraphs 6(a)
and 11. Buyer's failure to notify Seller within the 60 day period will be deemed
approval by Buyer of the condition of title. Buyer may, at its sole cost and
expense, proceed to obtain a title insurance policy.
c. Other than the Federal Deposit Insurance Corporation ("FDIC") and
Office of the Comptroller of the Currency ("OCC") approvals described in
paragraph 6(g) below, Buyer using good faith and diligent efforts, will obtain
all necessary third party approvals for the development of the Premises, for
its Intended Use during the sixty (60) day suitability/due diligence period.
d. Buyer and Seller acknowledge that the Premises is presently burdened by
a restriction within Seller's deed which prohibits use as a bank and that Seller
will use reasonable, good faith efforts to obtain a termination and release of
said restrictive covenant, during the sixty (60) day suitability/due diligence
period.
e. If Buyer determines that it does not desire to purchase the Premises,
Buyer may, by giving written notice to Seller ("TERMINATION NOTICE"), terminate
this Agreement. Said TERMINATION NOTICE must be received prior to 5:01 p.m.
(Florida time)
<PAGE> 2
on or before the day next following the expiration of the sixty (60) day period
provided for in this Paragraph or Buyer will be conclusively deemed to have
irrevocably waived the right to terminate under this Paragraph 6(a) - (d) and to
have accepted the Premises in its present "as is" condition. Upon receipt of
such proper and timely TERMINATION NOTICE by Seller, the Initial Deposit will be
returned to Buyer and neither party will have any obligation to the other except
in accordance with Paragraph 11 below.
f. If Buyer (i) fails to deliver the Termination Notice, (ii) determines
that it does desire to purchase the Premises, or (iii) requires an additional
time to determine whether the Premises is suitable for its intended use, then
Buyer will deliver an additional $25,000.00 earnest money deposit ("Second
Deposit") to Escrow Agent on or before sixty (60) days from the FINAL EXECUTION
DATE and the Deposit shall thereafter be non-refundable, except in the event of
Seller's failure to remedy Seller's default, in which case the Deposit shall be
refundable to Buyer.
g. If Buyer requires additional time beyond the sixty (60) days following
the FINAL EXECUTION DATE, in order to obtain FDIC and OCC approval of the
organization of Gulf Coast Community Bank ("Buyer's bank"), and provided Buyer
has otherwise complied with the provisions of this Paragraph 6, Buyer agrees to
deliver to Escrow Agent as additional, non-refundable (except in the case of an
uncured Seller default) earnest money deposit to be credited against the
Purchase Price at Closing, in the amount of $10,000.00 for each thirty (30) day
extension required by Buyer, said extensions however, not to extend beyond
January 30, 1998.
7. CLOSING.
a. The Closing hereunder will be through an escrow with the Escrow Agent,
in accordance with this Agreement, and will take place within fifteen (15) days
of receiving the FDIC and OCC approval but in any event no later than January
30, 1998 (the "CLOSING DATE"). On or before the CLOSING DATE, Seller will
deposit a limited warranty deed with the Escrow Agent using the legal
description by which Seller obtained title. If Closing does not occur prior to
or on January 30, 1998, then either Buyer or Seller may terminate this Agreement
by furnishing written notice to the other.
b. All costs and expenses of Closing the purchase and sale of the Premises
will be borne and paid at Closing unless otherwise stated herein, as follows:
<TABLE>
<S> <C> <C> <C>
By Seller: Seller's Attorneys' Fees By Buyer: Buyer's Attorneys' Fees
Recording Fees for Deed 1/2 Escrow/Closing Fees
Broker's Commissions Recording Fees for Covenants, if any
Title Commitment/Report Survey costs, if any
1/2 Escrow/Closing Fees Title Insurance Policy and Extended Coverage, if any
State Transfer Taxes, if any
</TABLE>
c. Real Estate Taxes. Prior to or at Closing, Seller will pay all general
real estate taxes and installments and any and all special assessments which are
due and payable as of the CLOSING DATE. Real estate taxes on the Premises which
accrue in the current year and installments of any and all special assessments
due but not yet payable for the current year will be prorated to the CLOSING
DATE. If on the CLOSING DATE the tax rate for such year has not been finally
determined, proration will be made upon the basis of the tax rate for the
preceding tax year applied to the last officially certified rate of valuation.
The parties agree that such proration will be readjusted between the parties,
outside of Closing, if necessary, based upon the final tax bill for the year in
which Closing occurs.
8. REMEDIES.
a. In the event Buyer fails to comply with any or all of the obligations,
covenants, warranties or agreements under this Agreement and such default is not
cured within ten (10) days after receipt of notice (other than Buyer's failure
to tender the Purchase Price on the date of Closing, a default for which no
notice is required), then Seller, at its option, and as its sole and exclusive
remedies, may either terminate this Agreement, whereupon the Deposit will be
paid over to Seller by Escrow Agent and the parties will be released from any
further liability hereunder except for the indemnification provisions of
Paragraph 6(a) and 11 herein, or Seller may pursue specific performance to
require Buyer to perform under this Agreement.
b. In the event Seller fails to comply with any or all of the obligations,
covenants, warranties or agreements under this Agreement, and such default is
not cured within ten (10) days after receipt of notice, then Buyer, as its sole
and exclusive remedy, may terminate this Agreement, in which event the Deposit
will be refunded to Buyer and both parties will be released from any further
liability hereunder except for the indemnification provisions of Paragraphs 6(a)
and 11 herein.
c. The failure of either party to act upon a default of the other in any of
the terms, conditions or obligations under this Agreement will not be deemed a
waiver of any subsequent breach or default under the terms, conditions or
obligations hereof by such defaulting party.
9. NOTICES. All notices, demands and communications as provided herein will be
served by certified United States mail, return receipt requested, available
express mail carrier (such as Federal Express, Emery, Airborne, etc.), or
facsimile capable of confirming receipt, to the following address or to such
other address(es) as Seller and Buyer may advise each other in writing pursuant
to this Paragraph.
<TABLE>
<S> <C>
Seller: GMRI, Inc. Buyer: Gulf Coast Bancorp, Inc.
Attn: Development Law Department 4055 Tamiami Trail
1751 Directors Row Port Charlotte, Florida 33952
Orlando, FL 32809 Attn: Lewis Albert
Facsimile No. (407) 245-5380 Facsimile No: (941) 625-1732
</TABLE>
10. USE RESTRICTION. Buyer acknowledges that it is not acquiring any interest
in any trademarks, service marks and/or trade names which have been used by
Seller at the Premises. These covenants may be recorded in the deed.
11. BUYER'S INDEMNIFICATION. In the event that this Agreement is terminated by
either Buyer or Seller prior to Closing, and notwithstanding the fact that such
termination will release Buyer from its obligation to buy the Premises, nothing
herein will be deemed to release Buyer from any liability arising out of or
connected with Buyer's activities (or those of its employees, agents, or
contractors) on the Premises including, but not limited to, its actions on the
Premises while exercising its rights pursuant to Paragraph 6 hereof. This
provision will survive Closing of the transaction herein contemplated and the
delivery of the deed.
12. BROKERS. Seller will pay the commission of Prudential
Village Realty Place (Agent - Dick Ford) ("Broker") at Closing. Buyer and Seller
mutually represent and warrant that Broker is the only broker, agent or finder
involved in this transaction or entitled to a broker's commission or finder's
fee. If any other person or entity claims a broker's commission or finder's fee
due to interaction with Buyer or Seller, the party under whom the claim arises
will hold the other harmless from and indemnify the other against all resulting
costs (including attorney's fees).
13. MISCELLANEOUS PROVISIONS.
a. This Agreement is the entire agreement and incorporates all prior
agreements. It may be amended only in writing signed by both parties. It will be
interpreted under the laws of the state in which the Property is located. It is
binding on the heirs, personal representatives, successors and assigns of the
parties. "Days" means calendar days unless otherwise stated.
b. If any provision contained in this Agreement is held to be invalid,
illegal or unenforceable in any respect, the remainder of this Agreement (or the
application of such term, provision or condition to persons or circumstances
other than those in respect of which it is
<PAGE> 3
invalid, illegal or unenforceable) will not be affected thereby, and each and
every other term, provision and condition of this Agreement will be deemed
valid, legal and enforceable.
c. All parties hereto pledge their diligent efforts to act in a timely and
reasonable manner to consummate the transaction herein contemplated.
d. This Agreement may be executed in multiple originals or counterparts,
each of which will be an original and, when all of the parties to this Agreement
have signed at least one (1) copy, such copies together will constitute a fully
executed and binding Agreement.
e. No representation, warranty, or recommendation is made by Seller or its
agents, employees or attorneys regarding the legal sufficiency, legal effect, or
tax consequences of this Agreement or the transaction, and each signatory is
advised to submit this Agreement to his/her attorney before signing it.
f. Timely performance by Buyer is of the essence in this Agreement.
g. This Agreement will not be recorded in part or in whole by either party
hereto.
IN WITNESS Whereof, the parties have executed this Agreement as of the day and
year first above written.
<TABLE>
<S> <C>
GMRI, INC. GULF COAST BANCORP, INC.
(Seller) (Buyer)
BY: BY:
Mark A. Jones, Vice President TITLE:
DATE: DATE:
</TABLE>
EXHIBITS: A - Legal Description of Premises
<PAGE> 4
EXHIBIT "A"
(LEGAL DESCRIPTION OF PREMISES)
LOT 3, PORT CHARLOTTE RETAIL CENTER, ACCORDING TO THE PLAT THEREOF ON FILE IN
THE OFFICE OF THE CLERK OF CIRCUIT COURT IN AND FOR CHARLOTTE COUNTY, FLORIDA
RECORDED IN PLAT BOOK 17, PAGE 3A THROUGH 3C; SAID LANDS SITUATE, LYING AND
BEING IN CHARLOTTE COUNTY, FLORIDA.
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF THE COMPANY
The sole subsidiary of the Company is Gulf Coast Community Bank,
National Association, a National Banking Association organized under the laws of
the United States.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF HILL, BARTH & KING, INC., INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form SB-2 and related Prospectus of Gulf Coast
Bancorp, Inc. for the registration of 1,150,000 shares of its common stock and
to the incorporation therein of our report dated September 18, 1997 relating to
the financial statements of Gulf Coast Bancorp, Inc. as of August 31, 1997 and
for the period from May 1, 1997 (date of inception) to August 31, 1997.
HILL, BARTH & KING, INC.
Certified Public Accountants
Naples, Florida
November 4, 1997
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM THE AUDITED FINANCIAL
STATEMENTS DATED AUGUST 31, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 4-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> MAY-01-1997
<PERIOD-END> AUG-31-1997
<CASH> 179,874
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 0
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 0
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 0
<ALLOWANCE> 0
<TOTAL-ASSETS> 244,910
<DEPOSITS> 0
<SHORT-TERM> 0
<LIABILITIES-OTHER> 323,765
<LONG-TERM> 0
0
0
<COMMON> 1
<OTHER-SE> (98,856)
<TOTAL-LIABILITIES-AND-EQUITY> 224,910
<INTEREST-LOAN> 0
<INTEREST-INVEST> 0
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 0
<INTEREST-DEPOSIT> 0
<INTEREST-EXPENSE> 0
<INTEREST-INCOME-NET> 0
<LOAN-LOSSES> 0
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 99,855
<INCOME-PRETAX> (99,855)
<INCOME-PRE-EXTRAORDINARY> (99,855)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (99,855)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<YIELD-ACTUAL> 0
<LOANS-NON> 0
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 0
<CHARGE-OFFS> 0
<RECOVERIES> 0
<ALLOWANCE-CLOSE> 0
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
