As originally filed with
the Securities and Exchange Commission on January 13, 1998
Registration File No. 333-44161
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SECURITIES AND EXCHANGE COMMISSION
------------------------------------
WASHINGTON, D.C. 20549
Post-Effective Amendment No. 2 to
Form SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PSB BANCGROUP, INC.
(Name of small business issuer in its charter)
Florida 6712 59-3454146
(State or jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
500 South First Street
Lake City, Florida 32025
(904) 754-0002
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(Address and telephone number
of principal executive offices)
Robert W. Woodard
President and Chief Executive Officer
500 South First Street
Lake City, Florida 32025
(904) 754-0002
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(Name, address and telephone number of agent for service)
Copies Requested to:
Herbert D. Haughton, Esq. or A. George Igler, Esq
Igler & Dougherty, P.A.
1501 Park Avenue East
Tallahassee, Florida 32301
(850) 878-2411
Approximate date of proposed sale to the public: As soon as practicable after
this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to rule 415 under the Securities Act of
1933 check the following box. [X]
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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
each class Amount maximum maximum
of securities to be offering aggregate Amount of
to be registered registered(1) price offering price registration fee
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<S> <C> <C> <C> <C> <C>
Common Stock $. 01 par value 1,200,000 $9.00(2) $10,800,000(3) $3,186.00
Warrants 600,000 $0.00 $0 $0.00
Units 600,000 $9.00 $0 $0.00(4)
==================================== ======================== ======================= ======================= ====================
</TABLE>
(1) Common Stock ("Shares") and Warrants are to be issued during the Offering
Period in Units. Units will contain one Share and one Warrant to purchase
one additional share of Common Stock. Units will not be issued or
certificated, Shares and Warrants will be issued and certificated
separately. The minimum number of Units which may be purchased is 500
Units.
(2) Maximum purchase price of stock to be issued pursuant to the Warrants
registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee on the
basis of the proposed maximum offering price per Share.
(4) Fee for Units has been included in the $3,186.00 registration fee for
Common Stock.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
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<PAGE>
PSB BANCGROUP, INC.
SUPPLEMENT NO. 2
TO PROSPECTUS DATED JUNE 8, 1998
PSB BancGroup, Inc. began offering its common stock to the public on June 8,
1998. On November 24, 1998 PSB extended its offering in order to sell the
minimum number of shares required to break escrow. On November 25, 1998 PSB
filed its first prospectus supplement with the Securities and Exchange
Commission. This supplement was effective November 30, 1998.
The prospectus provides that PSB may engage the services of an underwriter
to assist PSB in the sale of the units on a best efforts basis if the minimum
number of units was not sold by October 6, 1998. PSB has had discussions with
four underwriters, three of which verbally agreed to act as PSB's sales agent on
a best efforts basis for the sale of the remaining shares. PSB has selected
Meridian Asset Management, Inc. as its sales agent.
SALES AGENT
PSB has entered into a Sales Agency Agreement with Meridian Asset
Management, Inc., pursuant to which the sales agent has agreed to offer and sell
to the public, as PSB's agent, up to 200,000 units each containing one share of
common stock and one warrant to purchase one share of common stock on a "best
efforts" basis. The sales agent and PSB have agreed that with respect to units
sold by PSB's directors and officers, no commission will be payable by PSB to
the sales agent. The sales agent's commission will be equal to 7% on all units
the sales agent sells in the offering. The sales agent may select other dealers
who are members of the National Association of Securities Dealers, Inc. to sell
units and who will receive a selling concession on units sold. PSB has agreed to
reimburse the sales agent for its reasonable out-of-pocket expenses incurred in
connection with the engagement including:
o the filing and legal fees associated with securing the review of the NASD
of the terms of the offering; and
o reasonable out-of-pocket expenses incurred in connection with the sales
agent's engagement, including legal fees, advertising, promotion,
syndication and travel expenses.
Unless approved in writing by PSB, which approval shall not be unreasonably
withheld, fees and disbursements related to the underwriting process may not
exceed $7,500.
The sales agent has the right to terminate the Sales Agency Agreement under
certain circumstances (for example, if conditions exist in the over-the-counter
market which cause the sales agent to believe that no favorable public market
exists for the sale of the units). In the event of a termination, offers and
sales will continue to be made on behalf of PSB by some of its officers and
directors, or PSB may engage one or more other broker/dealers to make sales on
its behalf. PSB does not, however, currently have any other arrangements with
other broker/dealers in place. All funds received by the sales agent or PSB in
connection with the sale of units will be promptly transmitted to the escrow
agent until the minimum number of units have been sold.
The Sales Agency Agreement provides for reciprocal indemnification between
PSB and the sales agent against liabilities under the Securities Act of 1933. To
the extent that indemnification for liabilities arising under the Securities Act
may be permitted by the Sales Agency Agreement, PSB has been advised that in the
opinion of the Securities and Exchange Commission, such indemnification is
against public policy as expressed by the Securities Act and is, therefore,
unenforceable.
PSB has had discussions with the sales agent regarding the establishment and
maintenance of a market for the shares after the offering. The sales agent has
advised PSB that upon completion of the offering it intends to act as a "market
maker" in the common stock. The development of a public trading market depends,
however, on the existence of willing buyers and sellers, the presence of buyers
and sellers, however, is not within the control of PSB, the sales agent, or any
market maker. In general, if a secondary market develops, the shares will be
freely transferable and assignable by holders thereof (except shares held by
affiliates), and nonaffiliate shareholders may sell any number of shares in the
secondary market. In addition, factors such as the degree of activity in the
secondary market will determine the willingness of the market makers to continue
to maintain the secondary market. PSB and its officers and directors have agreed
with the sales agent not to sell any shares for a period of six months after the
date of this prospectus without the prior written consent of the sales agent.
This second supplement is intended to amend and to be read in conjunction
with the prospectus and to supersede the prospectus to the extent that any
information in this supplement conflicts with information in the prospectus.
<PAGE>
The following language will be stickered on the current Prospectus.
================================================================================
Price Underwriting
to Discounts and Proceeds to
Public(1) Commissions(2) the Company(3)
================================================================================
Per Unit .......................... $ 9.00 $ 0-$0.63 $8.37-$9.00
Minimum ........................... $ 4,324,500 $ 63,000 $ 4,261,500
Maximum ........................... $ 5,400,000 $ 126,000 $ 5,274,000
If all Warrants are exercised ..... $10,800,000 $ 126,000 $10,674,000
================================================================================
(1) Prior to this offering, there has been no established market for the shares
of PSB's common stock. The offering price was arbitrarily determined by the
board of directors of PSB and does not bear any relationship to PSB's
assets, book value, net worth or any other recognized criteria of value. In
the event a market should develop for the common stock after completion of
this offering, there can be no assurance that the market price will equal
or exceed the offering price herein.
(2) The securities offered hereby will be sold on a best-efforts, minimum
480,500 unit basis by certain directors and executive officers of PSB and
no commissions will be paid on such sales. Up to 100,000 units of the
minimum and up to 200,000 units of the maximum will be sold by Meridian
Asset Management, Inc. for which PSB will pay a 7% commission. See "TERMS
OF THE OFFERING" and "SALES AGENT".
(3) Before deducting offering expenses, estimated to be approximately $33,500
including registration fees, legal and accounting fees, printing and other
expenses. See "USE OF PROCEEDS" for an itemized statement of expenses.
PSB reserves the absolute right to cancel all subscriptions and return all
subscription funds, together with any income realized from the investment of
such funds, for any reason whatsoever, at any time prior to the time that PSB
withdraws subscription funds from the subscription escrow account. See "TERMS OF
THE OFFERING."
[LOGO] MERIDIAN ASSET MANAGEMENT, INC.
The date of this prospectus is June 8, 1998.
<PAGE>
Exhibits Schedule
The following exhibits are filed as part of this Registration Statement:
Exhibit
Number Description of Exhibit
*3.1 Articles of Incorporation of the Company
(Appendix A to Prospectus)
*3.2 By-Laws of the Company
*4.1 Specimen Common Stock Certificate
*4.2 Specimen Warrant Certificate
*4.3 Escrow Agreement with Independent Bankers' Bank of Florida
(Appendix B of Prospectus)
*4.4 Warrant Plan adopted by the Company on January 9, 1998
*4.5 Amended and Restated Warrant Plan adopted by the Company
on March 25, 1998
4.6 Amendment to Escrow Agreement
4.7 Sales Agency Agreement
*5.1 Opinion of Igler & Dougherty, P.A.
*10.1 Employment Agreement between the Company and
Robert W. Woodard
*10.2 Land Purchase Agreement
*10.3 Addendum to Land Purchase Agreement
*10.4 Amended Employment Agreement between the Company and
Robert W. Woodard
*23.1 Consent of Igler & Dougherty, P.A., included in
the Opinion Letter
**23.2 Consent of Hacker, Johnson, Cohen & Grieb
*24 Power of Attorney (included in signature page to this
Registration Statement)
**27 Financial Data Schedule
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* Denotes previously EDGAR filed as part of this Registration Statement,
File No. 333-44161.
** Previously filed with Post-Effective Amendment No. 1.
Exhibit 4.6
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AMENDMENT TO ESCROW AGREEMENT
<PAGE>
AMENDMENT TO ESCROW AGREEMENT
THIS AMENDMENT TO ESCROW AGREEMENT, is made and entered into this 14th
day of January, 1999, by and between PSB BancGroup, Inc. ("PSB"), the
Independent Bankers' Bank of Florida ("escrow agent") and Meridian Asset
Management, Inc. ("sales agent").
WHEREAS, the parties entered into that certain escrow agreement, dated
January 6, 1998 ("Agreement");
WHEREAS, the parties mutually desire and deem it necessary to amend the
Agreement in certain respects and to add Meridian Asset Management, Inc. as a
party to the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Except as otherwise defined in this amendment, terms
defined in the Agreement are used herein as defined therein.
2. Amendment to Section 9. The parties hereby agree to delete Section 9 of
the Agreement and replace it with the following:
(9) Pending disposition of the subscription funds under this
Agreement, the escrow agent will invest collected subscription funds, in
$1,000.00 increments above the maintained balance of $50,000.00, in
short-term obligations of the United States Treasury or United States
Government Agencies or in short-term insured certificates of deposit.
3. Addition of Party. Meridian Asset Management, Inc. ("MAM, Inc.") is
hereby added as a party to this Agreement. The parties agree that this Agreement
may not be amended without the written consent of PSB, escrow agent and the
sales agent.
4. Miscellaneous. Except as herein provided, the Agreement shall remain
unchanged and in full force and effect. This Amendment shall be governed by, and
construed in accordance with the law of the State of Florida. This Amendment may
be executed in counterparts.
IN WITNESS WHEREOF, the authorized representatives of the parties hereto
have executed this Amendment as of the date first written above.
PSB BANCGROUP, INC.
By: /s/ Robert W. Woodard
------------------------
Its: President
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INDEPENDENT BANKERS' BANK OF FLORIDA
By: /s/ James H. McKillop
------------------------
Its: Senior Vice President
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MERIDIAN ASSET MANAGEMENT, INC.
By: /s/ Robin R. McEachin
------------------------
Its: President
------------------------
<PAGE>
Exhibit 4.7
---------------------------------------------
SALES AGENCY AGREEMENT
<PAGE>
------------------
SALES AGENCY AGREEMENT
------------------
Meridian Asset Management, Inc.
810 Thomasville Road
Tallahassee, Florida 32303
Gentlemen:
The undersigned, PSB BancGroup, Inc., a Florida corporation (the
"Company"), a proposed bank holding company for Peoples State Bank, in
organization, a proposed state chartered bank (the "Bank"), appoints Meridian
Asset Management, Inc. (the "Sales Agent") as a selling agent, on a best efforts
basis, of the shares of the Company described below and hereby confirms its
agreement (this "Agreement") with the Sales Agent as follows:
1. Description of the Units. The Company proposes to issue and sell up
to 600,000 units each containing one share of Common Stock, par value $0.01 per
share and one warrant to purchase one share of Common Stock (the "Units"). The
terms of the offering are more fully described in the Prospectus referred to
below.
2. Representations, Warranties and Covenants of the Company. The
Company represents and warrants to, and agrees with, the Sales Agent that:
(a) A registration statement with respect to the Units has
been prepared by the Company and filed with the Securities and Exchange
Commission (the "SEC") on Form SB-2 (the "Registration Statement") pursuant to
the Securities Act of 1933 (the "Securities Act"). The Registration Statement
was declared effective by the SEC on June 8, 1998. Copies of the Prospectus have
heretofore been delivered to you. The Company will not, at any time after the
date hereof, amend or supplement the Prospectus by making any amendment or
supplement without prior consultation with the Sales Agent or its counsel or to
which the Sales Agent or its counsel shall reasonably object. The Registration
Statement was amended effective December 1, 1998 to extend the offering period
and will be further amended to reflect this Agreement.
(b) No action, suit or proceeding for the purpose of
preventing or suspending the use of the Prospectus has been initiated or, to the
knowledge of the management of the Company, threatened by the SEC or any other
governmental agency or body nor has any such agency or body notified the Company
of any objections to the use of the Prospectus.
(c) As of the date hereof and at all times subsequent thereto
up to and at the Closing Date (as hereinafter defined): (i) the Prospectus and
any amendments or supplements thereto will contain all statements and
information which are required to be stated therein by the SEC, and
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<PAGE>
(ii) neither the Prospectus nor any amendment or supplement thereto will include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; provided,
however, that the foregoing representations and warranties shall not apply to
information contained in or omitted from the Prospectus or any such amendment or
supplement in reliance upon, and in conformity with, written information
furnished to the Company by you specifically for use in the preparation thereof.
We confirm that the statements set forth in the Prospectus Supplement under the
heading "Sales Agent" constitute the only information furnished in writing by or
on behalf of the Sales Agent for inclusion in the Registration Statement and
Prospectus as amended or supplemented, as the case may be.
(d) The financial statements of the Company set forth in the
Prospectus, as amended or supplemented, fairly presents the financial condition
of the Company as of the date indicated and the results of operations and
changes in financial position for the periods therein specified; and such
financial statements have been prepared substantially in accordance with
generally accepted principles of accounting, applied on a consistent basis
throughout the periods involved. The certified public accountants, who have
examined the financial statements of the Company as set forth in its report
included in the Prospectus, are members of the SEC Practice Section of the
American Institute of Certified Public Accountants and are independent public
accountants within the meaning of the applicable standards of the Auditing
Standards Board of the American Institute of Certified Public Accountants and
the SEC.
(e) The Company is duly organized and validly existing and in
good standing under the laws of the State of Florida and the Bank, once granted
its Charter, will have the full power and authority (corporate and other) to
conduct its business as described in the Prospectus. The Company is duly
approved to become a "bank holding company" under the Bank Holding Company Act
of 1956 (the "BHC Act"), and is in good standing and in full compliance with the
BHC Act and the rules and regulations thereunder. Complete and correct copies of
the Articles of Incorporation, Bylaws of the Company, and all amendments thereto
have been delivered to the Sales Agent.
(f) The Company and the Bank have all such power, authority,
authorizations, approvals, orders, licenses, certificates and permits necessary
to enter into this Agreement, to carry out the provisions and conditions hereof,
and to commence the offering. The Company will have no subsidiaries other than
the Bank which will be a wholly owned subsidiary of the Company.
(g) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Prospectus, the
Company has not incurred any liabilities or obligations, direct or contingent,
or entered into any transactions which are material to the Company and there has
not been any material change in the capital stock, short-term debt or long-term
debt of the Company, or any material adverse change, or, to the knowledge of the
management of the Company, any development involving a prospective material
adverse change, in the condition (financial or other), net worth or results of
operations of the Company.
(h) The Company is not, and will not be as a result of the
consummation of the transactions contemplated by this Agreement, an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, or a company "controlled" by, an "investment company," as such terms are
defined in the Investment Company Act of 1940.
9
<PAGE>
(i) The Company has conducted its business so as to comply in
all material respects with applicable statutes, rules, regulations, decisions,
directives, orders, and capital guidelines (including without limitation, all
those issued by the SEC, the , the Federal Reserve, and the Federal Deposit
Insurance Corporation (the "FDIC")), and there is not pending or, to the
knowledge of the management of the Company, threatened, any action, suit or
proceeding to which the Company or the Bank is or may be a party, before or by
any court or governmental agency or body, which might result in any material
adverse change in the condition (financial or other), business, prospects, net
worth or results of operations of the Company or the Bank or might materially
and adversely affect the properties or assets thereof.
(j) Neither the Company nor the Bank is in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any existing agreement, nor is the Company or the Bank in violation
of any term or provision of its Articles of Incorporation or Bylaws. The
execution and delivery of this Agreement and the incurrence of the obligations
herein set forth will not conflict with, or constitute a breach of or default
under, the Articles of Incorporation or the Bylaws of the Company or any
existing agreement or any statute regulating the business of the Company or the
Bank, or any rule, regulation, decision, directive or order of any court or
governmental agency or body having jurisdiction over the Bank or any of their
activities or properties (including, without limitation, all rules, regulations,
releases, decisions, directives or orders of the SEC, the, the Federal Reserve
or the FDIC); and except as expressly set forth herein and in the Prospectus, no
consent, approval, authorization or order of any court or governmental agency or
body (including, without limitation, the SEC, the, the Federal Reserve or the
FDIC) is required for the consummation of the transactions contemplated hereby.
(k) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus, and all the issued shares of
capital stock of the Company have been duly authorized and validly issued, are
fully paid and non-assessable, are not subject to any preemptive or similar
rights and conform to the description of the capital stock contained in the
Prospectus. None of the issued shares of the capital stock of the Company has
been issued in violation of any preemptive or similar rights (contractual or
other). All shares of capital stock of the Company that are subject to
outstanding options or warrants, if any, have been duly authorized and, when
issued in accordance with the terms of the applicable option or warrant, will be
validly issued, fully paid and non-assessable and will not be issued in
violation of any preemptive or similar rights (contractual or other). There is
no outstanding option, warrant or other right calling for the issuance of, and
no commitment, plan or arrangement to issue, any shares of capital stock of the
Company or any security convertible into or exchangeable for capital stock of
the Company, except as disclosed in the Registration Statement and the
Prospectus. The Units are duly authorized and, when issued and delivered in the
offering, will be validly issued, fully paid and non-assessable and free of
preemptive rights of any security holder of the Company.
(l) All offers and sales of the Company's capital stock or
other securities prior to the date hereof were at all relevant times duly
registered under the Securities Act and all applicable state securities or "Blue
Sky" laws or were the subject of an available exemption from the registration
requirements of the Securities Act and all applicable state securities or "Blue
Sky" laws.
10
<PAGE>
(m) Subsequent to the respective dates as of which information
is given in the Prospectus, and except as may otherwise be indicated or
contemplated herein or therein, the Company has not: (i) issued any securities;
(ii) incurred any liability or obligation, direct or contingent, for borrowed
money not in the ordinary course of business; or (iii) entered into any other
transaction not in the ordinary course of business.
(n) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (a) transactions are
executed in accordance with management's general or specific authorization; (b)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (c) access to assets is permitted only in
accordance with management's general or specific authorization; (d) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; and
(e) such controls would prevent or detect errors or irregularities in amounts
that would be material in relation to the Company's financial statements. To the
best of the knowledge and belief of the Company's management (having made
reasonable investigation with respect thereto), neither the Company, the Bank
nor any employee of the Company or the Bank has made any payment of funds of the
Company or the Bank prohibited by law, and no funds of the Company or the Bank
have been set aside to be used for any payment prohibited by law.
(o) There are no actions, suits or proceedings pending or, to
the knowledge of the Company, threatened against or affecting the Company or the
Bank or any of their respective officers in their capacity as such, before any
federal or state court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, wherein an unfavorable ruling,
decision or finding would materially and adversely affect the Company or the
Bank or its or their business, properties, business prospects, condition
(financial or otherwise) or results of operations or prevent or materially
hinder the consummation of this Agreement.
(p) The filing of the Registration Statement and the execution
and delivery of this Agreement have been duly authorized by the Board of
Directors of the Company, and the Company has full corporate power and authority
to enter into this Agreement and to perform its obligations hereunder. This
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding agreement of the Company enforceable against the Company in
accordance with the terms hereof.
(q) The Company has good and marketable title to all
properties and assets described in the Registration Statement and Prospectus as
owned by it, free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Prospectus or are not material to the
business of the Company. The Company has valid, subsisting and enforceable
leases for the properties described in the Prospectus as leased by it (the
"Leased Properties") subject only to the rights of any mortgagee, lienholder, or
other person or entity which has an interest in the Leased Properties that is or
may become superior to the interest of the Company or the landlord of such
Leased Properties. The Company has no actual notice or knowledge of any material
claim of any sort which has been, or may be, asserted by anyone adverse to the
Company's rights as lessee or sublessee under any lease or sublease described
above, or affecting or questioning the Company's rights to the continued
possession of the leased or subleased premises under any such lease or sublease
in conflict with the terms thereof. The Company owns or leases all such
properties as are necessary to its operations as now conducted.
11
<PAGE>
(r) The Company and the Bank maintain insurance with insurers
of recognized financial responsibility against such losses and risks and in such
amounts as management believes is appropriate to the business of the Company and
the Bank and all such policies are in full force and effect. The Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the business, properties, business
prospects, condition (financial or otherwise) or results of operations of the
Company and the Bank taken as a whole.
(s) All documents or contracts required to be filed as
exhibits to the Registration Statement to which the Company or the Bank is a
party have been filed as exhibits to the Registration Statement and have been
duly authorized, executed and delivered by the Company or the Bank, constitute
valid and binding agreements of the Company or the Bank and are enforceable
against the Company or the Bank in accordance with the terms thereof, except
where the lack of authorization, execution, delivery or enforceability of any
such contract would not materially and adversely affect the Company, the Bank or
their business, properties, business prospects, condition (financial or
otherwise) or results of operations or prevent or materially hinder the
consummation of this Agreement.
(t) Except as disclosed in the Prospectus, the Company has
filed all necessary federal, state and foreign income and franchise tax returns
and has paid all taxes shown as due thereon; and there is no tax deficiency
which has been or to the knowledge of the Company might be asserted against the
Company that has not been provided for in the financial statements.
(u) The Company has sufficient licenses, permits and other
governmental authorizations currently required for the conduct of its business
or the ownership of its property as described in the Prospectus. To the best
knowledge of the Company, none of the activities of business of the Company are
in violation of, or cause the Company to violate, any law, rule, regulation or
order of the United States, any state, county or locality, or of any agency or
body of the United States or of any state, county or locality, the violation of
which would have a material adverse impact upon the condition (financial or
otherwise), business, property, prospective results of operations, or net worth
of the Company.
(v) The Company has not, directly or indirectly at any time
(i) made any contributions to any candidate for political office, or failed to
disclose fully any such contribution in violation of law or (ii) made any
payment to any state, federal or foreign governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments or contributions required or allowed by applicable law. The Company's
internal accounting controls and procedures are sufficient to cause the Company
to comply in all material respects with the Foreign Corrupt Practices Act of
1977.
(w) On the Closing Date, all transfer or other taxes
(including franchise, capital stock or other tax, other than income taxes,
imposed by any jurisdiction) if any, which are required to be paid in connection
with the sale and transfer of the Units will have been fully paid or provided
for by the Company and all laws imposing such taxes will have been fully
complied with.
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<PAGE>
(x) The Company has not taken and will not take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Units or the Common Stock,
and the Company is not aware of any such action taken or to be taken by
affiliates of the Company. To assure compliance with Regulation M under the
Securities Exchange Act of 1934 (the "Exchange Act"), the Company will not make
bids for or purchases of or induce bids for or purchases of, directly or
indirectly, any shares of Common Stock or securities convertible into Common
Stock of the Company until the distribution of all shares of Common Stock being
sold in the public offering has been completed.
(y) No holder of securities of the Company has rights to
require the registration of any securities of the Company because of the filing
of the Registration Statement. There are no contracts, agreements or
understandings between the Company and any person granting such person the right
to require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act.
(z) Other than as contemplated by this Agreement, there is no
broker or finder that is entitled to receive from the Company any brokerage or
finder's fee or commission as a result of any of the transactions contemplated
by this Agreement.
(aa) Any certificate signed by any officer of the Company
delivered to you or to counsel for the Sales Agent shall be deemed a
representation and warranty to the Sales Agent as to the matters covered
thereby.
(bb) The Company has not distributed and will not distribute
prior to the later of (i) the Closing Date or (ii) completion of the
distribution of the Units, any offering material in connection with the offering
and sale of the Units other than the Prospectus, the Registration Statement and
other materials, if any, permitted by the Securities Act and approved in writing
by the Sales Agent.
3. Employment of Sales Agent; Sales and Delivery of the Units. On the
basis of the representations and warranties herein contained, and subject to the
terms and conditions and covenants and agreements set forth herein, the parties
hereto agree as follows:
(a) The Sales Agent will act as agent for the Company on a
"best efforts" basis to sell for the account of the Company a maximum of 200,000
Units at a price of $9.00 per Unit, and the Sales Agent agrees to use its
commercially reasonable best efforts to effect such sales on the terms
(including the conditions) described in the Prospectus. However, the Sales Agent
makes no commitment to purchase all or any of the Units. The Sales Agent's
engagement hereunder will terminate on the earlier of (a) 120 days from the date
of this Agreement or such later date as shall be mutually agreed upon by the
Company and the Sales Agent; (b) the sale of all of the Units; or (c)
termination of the Sales Agent's engagement by the Company in accordance with
the provisions of Section 10 hereof. The period from the date of this Agreement
to the termination of the Sales Agent's engagement shall be referred to as the
"Offering Period."
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(b) As compensation for its efforts, and subject to the
release to the Company of subscription proceeds for the Units by the Escrow
Agent (as defined in Section 3(c)), the Sales Agent shall be paid by the Company
a commission of 7.0% of the proceeds of the Units sold by Sales Agent. Sales
Agent shall receive no commission for any Units sold by directors of the
Company. This commission will be due upon the closing of the offering.
Regardless of whether the offering is consummated, the Company will also
reimburse the Sales Agent, upon request, for its out-of-pocket expenses incurred
in connection with its engagement hereunder, including, without limitation,
legal fees, advertising, promotion, syndication, and travel expenses. The Sales
Agent shall document such expenses to the reasonable satisfaction of the
Company. Unless approved in writing by the Company, Sales Agent's out-of-pocket
expenses will not exceed $7,500. Such approval shall not be unreasonably
withheld by the Company. Any legal work by Sales Agent's counsel for blue sky or
NASD filings or for matters outside of a standard underwriting will be billed
separately.
(c) Until the conditions for breaking escrow described in the
Prospectus are met, all subscribers will be instructed to make their remittances
payable to Independent Bankers Bank of Florida for PSB BancGroup, Inc. as escrow
agent for the Company (the "Escrow Agent"), in accordance with the instructions
contained in the Prospectus, and all proceeds received by the Sales Agent shall
be transmitted to the Escrow Agent by noon of the following business day. The
Company shall be responsible for payment of the Escrow Agent's fees.
(d) The Sales Agent may offer and sell Units for the account
of the Company through other registered dealers selected by the Sales Agent
("Selected Dealers") pursuant to an agreement under which registered dealers
shall be compensated by the Sales Agent within the limits to be set forth in the
Prospectus from the commissions payable to it as provided in subsection (b)
above. All such sales by Selected Dealers shall be made by the Company, acting
through the Sales Agent as agent, and not for the account of the Sales Agent.
(e) Unless otherwise agreed by the Company and the Sales
Agent, once the Company achieves the conditions to the offering set forth in the
Prospectus, the initial closing ("Closing") of the sale of the Units will occur
at the offices of Igler & Dougherty, P.A., Tallahassee, Florida or at such other
place as shall be mutually agreed upon by the Company and the Sales Agent at a
time mutually agreed upon by the Company and the Sales Agent ("Closing Date").
At the Closing, all funds held pursuant to subsection (c) above or otherwise
received by the Escrow Agent in payment for the Units shall be transferred as
follows: (i) the net proceeds (the offering price less the Sales Agent's
commissions and the Sales Agent's out-of-pocket expenses incurred through such
date in accordance with Section 3(b) and not previously reimbursed to the Sales
Agent) will be transferred to the Company and (ii) an amount equal to the Sales
Agent's commissions on the sale of such Units and such out-of-pocket expenses
will be transferred directly to the Sales Agent. In addition, the Company will
deliver to the Sales Agent or mail to the purchasers of such Units on the Sales
Agent's instructions all certificates evidencing all such Units. Certificates
for such Units shall be in such denominations and registered in such name or
names as requested by the subscribers therefor. The Company will permit the
Sales Agent, on or before the first business day prior to the Closing Date, to
examine and package such certificates for delivery. If Units are sold and paid
for after the Closing Date, then as to such Units, as funds are received by the
Sales Agent from the sale thereof they shall be held until each check is
cleared; after such clearance the Company shall cause the issuance and delivery
of definitive stock certificates in accordance with the instructions of the
Sales Agent. Upon each such delivery, the net proceeds (the offering price less
the Sales Agent's commissions and any unreimbursed expenses) shall be
immediately forwarded to the Company by the Sales Agent.
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(f) The Company and the Sales Agent each represents to the
other that no person was or is entitled, directly or indirectly, to compensation
from it or any of its affiliates for services as a finder in connection with the
proposed offering.
4. Additional Covenants of the Company. The Company covenants and
agrees with the Sales Agent that:
(a) The Registration Statement is effective. The Company will
prepare and file with the SEC, promptly upon your request, any amendments or
supplements to the Registration Statement or Prospectus which, in your opinion,
may be necessary or advisable in connection with the distribution of the Units.
(b) As soon as the Company is advised thereof, the Company
will advise you, and confirm the advice in writing, of the receipt of any
comments of the SEC, of the effectiveness of any post-effective amendment to the
Registration Statement, of the filing of any supplement to the Prospectus or any
amended Prospectus, of any request made by the SEC for amendment of the
Registration Statement or for supplementing of the Prospectus or for additional
information with respect thereto, of the issuance by the SEC or any state or
regulatory body of any stop order or other order suspending the effectiveness of
the Registration Statement or any order preventing or suspending the use of any
Preliminary Prospectus, or of the suspension of the qualification of the Units
for offering in any jurisdiction, or of the institution of any proceeding for
any of such purposes, and will use its best efforts to prevent the issuance of
any such order, and, if issued, to obtain as soon as possible the lifting
thereof.
(c) The Company has caused to be delivered to you copies of
the Prospectus and supplements thereto, and the Company has consented and hereby
consents to the use of such copies for the purposes permitted by the Securities
Act. The Company authorizes the Sales Agent and dealers to use the Prospectus in
connection with the sale of the Units for such period as in the opinion of
counsel to the Sales Agent the use thereof is required to comply with the
applicable provisions of the Securities Act and the rules and regulations
thereunder. If, at any time within such period as a Prospectus is required under
the Securities Act to be delivered in connection with sales by the Sales Agent
or dealer, any event occurs of which the Company has knowledge and which
materially affects the Company or the securities of the Company, or which in the
opinion of counsel for the Company or counsel for the Sales Agent should be set
forth in an amendment to the Registration Statement or a supplement to the
Prospectus, in order to make the statements therein not then misleading, in
light of the circumstances existing at the time the Prospectus is required to be
delivered to a purchaser of the Units, or in case it shall be necessary to amend
or supplement the Prospectus to comply with law or applicable rules and
regulations, the Company will notify you promptly and forthwith prepare and
furnish to you copies of such amended Prospectus or of such supplement to be
attached to the Prospectus, in such quantities as you may reasonably request, in
order that the Prospectus, as so amended or supplemented, will not contain any
untrue statement of a material fact or omit to state any material facts
necessary in order to make the statements in the Prospectus, in the light of the
circumstances under which they are made, not misleading. The preparation and
furnishing of any such amendment or supplement to the Registration Statement or
amended Prospectus or supplement to be attached to the Prospectus shall be
without expense to the Sales Agent.
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<PAGE>
(d) The Company will comply with the Securities Act, the
Exchange Act, and the rules and regulations thereunder in connection with the
offering and issuance of the Units.
(e) The Company will (i) notify the Sales Agent promptly of
any request by the SEC, the, the Federal Reserve, the FDIC, any state securities
commission, or any other governmental body or agency for the amending or
supplementing of the Prospectus or for information with respect to the
Prospectus; (ii) prepare, promptly upon the Sales Agent's request, any
amendments or supplements to the Prospectus which, in the Sales Agent's
reasonable opinion, are necessary or advisable in connection with the
distribution of the Units; and (iii) not distribute any amendment or supplement
to the Prospectus to which the Sales Agent shall reasonably object by notice to
the Company after having been furnished a copy of any such proposed amendment or
supplement within a reasonable time prior to the proposed distribution.
(f) The Company will advise the Sales Agent, promptly after it
shall receive notice or obtain knowledge thereof, of the initiation or
threatening of any action, suit or proceeding for the purpose of preventing or
suspending the use of the Prospectus and will use its best efforts to prevent
the issuance of any order or ruling preventing or suspending the offering or to
obtain its withdrawal if such an order or ruling should be issued.
(g) Subject to your covenants and agreements set forth in
Section 5 of this Agreement, the Company will use its best efforts to qualify
the Units for sale under the securities laws of such states as you reasonably
designate and to continue such qualifications in effect so long as required for
the distribution of the Units. In each jurisdiction where such qualification
shall be effected, the Company will, unless you agree that such action is not at
the time necessary or advisable, file and make such statements or reports at
such times as are or may reasonably be required by the laws of such
jurisdiction.
(h) The Company will furnish to the Sales Agent, as soon as
available, copies of the Prospectus and all amendments and supplements thereto
in such quantities as the Sales Agent may from time to time reasonably request.
(i) During a period of three years from the Effective Date,
the Company agrees to furnish to its shareholders and to the Sales Agent, as
promptly as may be practicable after the end of each fiscal year, an annual
report with respect to such year (including financial statements audited by
independent certified public accountants). During such period, the Company also
agrees to furnish the Sales Agent with all reports and communications (financial
or other) furnished by the Company to its shareholders.
(j) Without the Sales Agent's consent, the Company will not
issue, sell, contract to sell or grant any option for the sale of or otherwise
dispose of any shares of Common Stock or securities convertible into or
exercisable for Common Stock (other than the issuance of the Units being sold by
the Company pursuant to the Prospectus and the issuance of stock options and
warrants as described in the Prospectus) until 180 days from the date the
Offering Period terminates.
(k) The Company will apply the net proceeds from the offering
received by it substantially in the manner set forth under "Use of Proceeds" in
the Prospectus and will file such reports with the SEC with respect to the sale
16
<PAGE>
of the Units and the application of the proceeds therefrom as may be required by
Sections 12, 13, and 15(d) of the Exchange Act and pursuant to Rule 463 under
the Securities Act.
(l) During a period of three years from Effective Date, the
Company or its successors or assigns will comply with all registration, filing
and reporting requirements of the Securities Act and the Exchange Act which are
or may from time to time become required of the Company or its successors or
assigns.
(m) The Company will obtain prior to Closing from all its
directors and officers who purchase 2.5% or more of the Common Stock their
written agreement satisfactory in form or substance to the Sales Agent that
until 180 days from the date of the termination of the offering they will not,
without the Sales Agent's prior written consent, sell, contract to sell, or
grant any option for the sale of or otherwise dispose of, directly or
indirectly, other than gifts and stock pledges (as long as the recipient is held
to be subject to the same restrictions on sales) any Common Stock of the Company
(or any securities convertible into or exercisable for such Common Stock).
(n) The Company will make generally available to holders of
its securities as soon as may be practicable but in no event later than the last
day of the 15th full calendar month following the calendar quarter in which the
Effective Date falls, an earnings statement (which need not be audited but shall
be in reasonable detail) for a period of 12 months ended commencing after the
Effective Date, and satisfying the provisions of Section 11(a) of the Securities
Act (including Rule 158 thereunder).
5. Covenants of the Sales Agent. The Sales Agent covenants and agrees
with the Company that:
(a) The Sales Agent will maintain an accurate record of all
orders to purchase Units and funds received, including the name, address and
social security or taxpayer identification number of each prospective purchaser
and the manner in which the stock certificate is to be issued.
(b) The Sales Agent is registered with the SEC as a
broker-dealer and is a member in good standing with the National Association of
Securities Dealers, Inc. (the "NASD"), and the Sales Agent and all its agents
and representatives have or will have all required licenses and registrations to
perform its obligations under this Agreement; and such registrations, membership
and licenses will remain in effect during the term of this Agreement. The Sales
Agent agrees that, in performing its obligations under this Agreement, the Sales
Agent will comply with all applicable statutes and the rules and regulations of
the NASD and any other federal or state governmental agency which are applicable
to it. This Agreement has been duly and validly authorized, executed and
delivered by the Sales Agent and is its valid and binding agreement and
obligation.
6. Responsibility for Payment of Expenses. The Company covenants and
agrees with the Sales Agent that:
(a) Whether or not the transactions contemplated hereunder are
consummated or this Agreement is prevented from becoming effective or is
terminated under the provisions of Section 10 hereof, the Company will pay all
the costs and expenses typically borne by issuers of securities in a public
offering, including, without limitation (i) the costs and charges of any
transfer agent or registrar and the cost of preparing stock certificates; (ii)
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<PAGE>
the printing or other reproduction of the Agreement and any blue sky survey (the
"Blue Sky Survey"); (iii) the qualification of the Units under state securities
laws in accordance with the provisions of Section 4(g), including filing fees
and the reasonable fees and disbursements of counsel for the Sales Agent in
connection therewith and the preparation of the Blue Sky Survey; (iv) the filing
fee of the NASD; and (v) the printing and delivery to the Sales Agent of copies
of the Prospectus and any amendments or supplements thereto.
(b) If this Agreement is canceled or terminated or fails to
become effective, the Company shall reimburse the Sales Agent for all
accountable out-of-pocket expenses actually incurred in accordance with Section
3(b).
7. Conditions of the Sales Agent's Obligations. The Sales Agent's
obligations as provided herein shall be subject to the continuing accuracy, as
of the date hereof and as of the Closing Date, of the representations and
warranties of the Company herein, to the performance by the Company of its
obligations hereunder, and to the following additional conditions:
(a) No action, suit or proceeding for the purpose of
preventing or suspending the use of the Prospectus shall have been initiated or,
to the knowledge of the Company or the Sales Agent, threatened by the SEC, the,
the Federal Reserve or the FDIC, any state securities commission, or any other
governmental agency or body nor shall have any such governmental agency or body
notified the Company or any of its agents of any objections to the use of the
Prospectus. Any request of the SEC, the, the Federal Reserve or the FDIC, any
state securities commission, or any other governmental agency or body for
information (to be included in the Prospectus or otherwise) shall have been
complied with to the Sales Agent's satisfaction.
(b) The Sales Agent shall not have advised the Company that
the Prospectus, or any amendment or supplement thereto, contains an untrue
statement of fact which in the Sales Agent's opinion is material or omits to
state a fact which in the Sales Agent's opinion is material and is required to
be stated therein or is necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) Except as contemplated in the Prospectus, subsequent to
the respective dates as of which information is given in the Prospectus, there
shall not have been any change in the capital stock, short-term debt or
long-term debt of the Company or any material adverse change, or any development
involving a prospective material adverse change, in the condition (financial or
other), net worth or results of operations of the Company, the Bank, or which,
in the Sales Agent's judgment, makes it impractical or inadvisable to offer or
deliver the Units on the terms and in the manner contemplated in the Prospectus.
(d) At the Closing Date, the Sales Agent shall have received
the opinion of company counsel dated as of the Closing Date, addressed to the
Sales Agent, substantially to the effect set forth in Schedule A hereto.
(e) At the time of execution of this Agreement and at the
Closing Date the Sales Agent shall have received a letter from the certified
public accountants of the Company, dated the date of delivery thereof, to the
effect set forth in Schedule B hereto.
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(f) At the Closing, the Sales Agent shall have received from
the Company a certificate, signed by the President or Chief Executive Officer
and the Chief Financial Officer of the Company and dated as of the Closing Date,
to the effect that, to the best of their knowledge, based on reasonable
investigation:
(i) The representations and warranties of the Company
in the Agreement are true and correct, as if made at and as of
the date of Closing, and the Company has performed and
complied with all the agreements and satisfied all the
conditions to be performed, complied with or satisfied by it
at or prior to the Closing;
(ii) No action, suit or proceeding for the purpose of
suspending the use of the Prospectus has been instituted or is
pending or threatened, and there is no basis for any such suit
or proceeding; and
(iii) Neither the Prospectus nor any amendment or
supplement thereto includes any untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading, and, since the date of the Prospectus, there has
occurred no event required to be set forth in an amendment or
supplement to the Prospectus which has not been so set forth.
(g) The Escrow Agreement shall have been entered into and
provide (i) that no subscription funds shall be released from escrow to the
Company unless the Sales Agent shall have delivered a certificate to the Escrow
Agent stating that all closing conditions under this Agreement shall have been
complied with or waived by the Sales Agent, and (ii) that when escrow is broken
the Escrow Agent shall pay directly to Sales Agent its commissions and any
outstanding fees and expenses as provided in Section 3(b) hereof.
(h) The Company shall have furnished to the Sales Agent
executed copies of the lock-up letters described in Section 4(n) and such
further certificates and documents as the Sales Agent or its counsel shall have
requested.
(i) All of the Units shall be tendered for delivery in
accordance with the terms and provisions of this Agreement.
All such opinions, certificates, letters, undertakings,
agreements and other documents will be in compliance with the provisions hereof
only if they are satisfactory in form and substance to the Sales Agent and its
counsel. The Company will furnish the Sales Agent with such conformed copies of
such opinions, certificates, letters, undertakings, agreements and other
documents as the Sales Agent shall reasonably request in order to receive
further assurance as to the accuracy of the Registration Statement and
compliance with the Company's agreements hereunder.
8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the
Sales Agent, each of its agents, attorneys, officers, directors, and employees,
and any person who controls the Sales Agent within the meaning of the Securities
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Act against any and all losses, claims, lawsuits, damages, or liabilities to
which the Sales Agent or its agents, attorneys, officers, directors or control
persons may become subject insofar as such losses, claims, lawsuits, damages, or
liabilities (including awards and/or judgments) arise out of or are in
connection with the Registration Statement, the Prospectus and related exhibits
or any amendment or supplement thereto, or any representations, statements or
other acts by the Company, its officers, directors, employees, agents, or
control persons, and will reimburse the Sales Agent, its officers, directors,
employees, agents, attorneys and any person who controls the Sales Agent for any
and all costs and expenses, including reasonable counsel fees incurred by them
in connection with the investigation or defense of any such loss, claim,
lawsuit, damage or liability; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, lawsuit, or
liability arises out of or is based upon an untrue statement or omission made in
the Registration Statement, the Prospectus and related exhibits or any amendment
or supplement thereto or in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Sales Agent
specifically for use with reference to the Sales Agent in preparation thereof.
The Company acknowledges that the statements set forth under the heading "Sales
Agent" in the Prospectus or any amendment or supplement thereto constitute the
only information relating to the Sales Agent furnished in writing to the Company
by the Sales Agent expressly for inclusion in the Prospectus or any supplement.
(b) The Sales Agent will indemnify and hold harmless the
Company, each of its agents, attorneys, officers, directors, and employees, and
any person who controls the Company within the meaning of the Securities Act
against any and all losses, claims, lawsuits, damages, or liabilities to which
the Company any such person may become subject insofar as such losses, claims,
lawsuits, damages or liabilities (including awards and/or judgments) arise out
of or in connection with or result from any statements furnished to the Company
in writing by the Sales Agent that are included in the Registration Statement,
the Prospectus and related exhibits or any amendment or supplement thereto and
which are furnished specifically for use with reference to the Sales Agent in
preparation thereof, and will reimburse any and all costs and expenses,
including reasonable counsel fees incurred by the Company or other indemnified
person in connection with investigating or defending any such loss, claim,
lawsuit, damage, or liability.
(c) If the indemnification of a person specified above is for
any reason held unenforceable, the indemnifying party agrees to contribute to
the losses, claims, damages and liabilities for which such indemnification is
held unenforceable, (i) in such proportion as is appropriate to reflect the
relative benefits to the Company, on one hand, and the Sales Agent, on the other
hand, of the transaction as contemplated the (whether or not the transaction is
consummated) or (ii) if (but only if) the allocation provided for in clause (i)
is for any reason held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company, on the one hand, and the Sales Agent, on the
other hand, as well as any other relevant equitable considerations. The Company
agrees that, for the purposes of this paragraph, the relative benefits to the
Company and the Sales Agent of the transaction as contemplated hereby shall be
deemed to be in the same proportion that the total value paid or contemplated to
be paid to or by the Company, any affiliate of the Company, or any of its
shareholders, as the case may be, as a result of or in connection with the
transaction bears to the fees paid or to be paid to the Sales Agent under this
Agreement; provided however, that, to the extent permitted by applicable law, in
no event shall the Sales Agent be required to contribute an aggregate amount in
excess of the aggregate fees actually paid to it under this Agreement.
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(d) In the event that an indemnified party is requested or
required to appear as a witness in any action brought by or on behalf of or
against the indemnifying party or any affiliate of the indemnifying party in a
transaction contemplated by this Agreement in which such indemnified party is
not named as a defendant, the indemnifying party shall reimburse the indemnified
party for all expenses incurred by it in connection with such indemnified
party's appearing and preparing to appear as such a witness, including, without
limitation, reasonable fees and disbursements of its legal counsel.
(e) Neither party shall, without the other party's prior
written consent, which consent shall not be unreasonably withheld, settle,
compromise, or consent to the entry of any judgment in any pending or threatened
claim, action, or proceeding in respect of which indemnification could be sought
against it under the indemnification provisions of this Agreement, whether or
not any indemnified party is an actual or potential party to a claim, action, or
proceeding, unless such settlement, compromise, or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, or proceeding.
(f) The foregoing reimbursement, indemnity, and contribution
obligations shall be in addition to any liabilities which the indemnifying party
may otherwise have. The reimbursement and indemnity obligations of the
indemnifying party under such subparagraphs shall extend upon the same terms and
conditions to any affiliate of the indemnified party, and the shareholders,
directors, officers, employees, attorneys and control persons (if any), as the
case may be, of the indemnified party and any of its affiliates.
(g) Prior to any proposed sale, distribution, or liquidation
of all or a significant portion of a party's assets or any significant
recapitalization of its outstanding securities in a transaction pursuant to
which such party's ability to honor its obligations hereunder might be adversely
affected, such party will notify the other party in writing thereof and, if
requested by the other party, shall arrange alternative means for providing for
the obligations of the parties set forth in this Section 8, including the
assumption of such obligations by a third party or the issuance or creation of
an escrow, in each case in an amount and upon terms and conditions satisfactory
to the indemnified party. The provisions of Section 8 shall survive any
termination of the authorization provided by this Agreement.
9. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company and the Sales Agent
herein, or in certificates delivered pursuant hereto, and the indemnity
agreements contained in Section 8 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of the
Sales Agent or any controlling persons, or the Company or any of its officers,
directors or any controlling persons, and shall survive the issuance of the
Units.
10. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 9:00 A.M.,
eastern standard time, on the date this Agreement is approved by the NASD (the
"Effective Date").
(b) The Sales Agent shall have the right to terminate this
Agreement by giving notice as hereinafter specified at any time at or prior to
the Closing Date if: (i) the Company shall have failed, refused or been unable,
at or prior to the Closing Date, to perform any agreement to be performed by it
hereunder; (ii) any other material condition of the Sales Agent's obligations
21
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hereunder required to be fulfilled by the Company is not fulfilled; (iii) a
banking moratorium shall have been declared by federal or authorities; (iv)
there shall have been a material adverse change in the financial condition,
business or results of operations of the Company; or (v) any other event or
occurrence of a similar character shall have occurred since the execution of
this Agreement which, in the Sales Agent's judgment, makes it impractical or
inadvisable to proceed with the completion of the sale and payment for the
Units. Any such termination shall not terminate the Company's obligations
pursuant to the provisions of Sections 3, 6, and 8 hereof.
(c) If the Sales Agent has failed to perform its covenants and
agreements recited in Section 5, then the Company shall have the right to
terminate the Sales Agent's engagement upon five days written notice. Any such
termination shall not terminate the Company's obligations pursuant to the
provisions of Sections 3 and 8 hereof.
11. Notices. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and, if sent to the Sales
Agent, shall be mailed, delivered or telecopied and confirmed to the Sales Agent
at 810 Thomasville Road, Tallahassee, Florida 32303 or, if sent to the Company,
shall be mailed, delivered or telecopied and confirmed to the Company at 500 S.
1st Street, Lake City, Florida 32025, with a copy to Edward W. Dougherty, Jr.,
1501 Park Avenue East, Tallahassee, Florida 32301. Any party to this Agreement
may change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Sales Agent, the Company and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person or corporation, other than the parties hereto
and their successors and assigns and the persons referred to in Section 8, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of the parties hereto and their respective successors and assigns and
such indemnified persons and for the benefit of no other person or corporation.
No purchaser of any of the Units from the Sales Agent shall be construed a
successor or assign merely by reason of such purchase.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Florida.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument. The validity of this Agreement shall not
be impaired if each party does not execute the same counterpart so long as the
execution of each party appears on the counterparts taken as a whole.
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If the foregoing correctly sets forth the understanding between the
Company and the Sales Agent, please so indicate by signing in the space provided
below for that purpose, whereupon this Agreement shall constitute a binding
agreement between the Company and the Sales Agent.
PSB BANCGROUP, INC.
By: /s/ Robert W. Woodard
---------------------
Name: Robert W. Woodard
Title: President
ACCEPTED as of the date first above written.
MERIDIAN ASSET MANAGEMENT, INC.
By: /s/ Robin R. McEachin
---------------------
Name: Robin R. McEachin
Title: President
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SCHEDULE A
Pursuant to Section 7(d) of the Sales Agency Agreement, counsel for the
Company shall furnish to the Sales Agency its opinion to the effect that:
(i) The Company has been duly incorporated and organized and is validly
existing as a corporation and is in good standing under the laws of the State of
. The Company is duly qualified and in good standing as a foreign corporation in
each jurisdiction in which the character or location of their properties (owned
or leased) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing
which will not have a material adverse effect on the condition (financial or
otherwise), business, properties, net worth, results of operations, prospects or
management of the Company or the Bank. The Company has all requisite corporate
power and authority to own or lease its properties and assets and conduct its
business as described in the Registration Statement, the Prospectus and the
documents incorporated by reference into the Registration Statement or the
Prospectus. The Company is duly registered as a "bank holding company" under the
BHC Act and is in good standing and in compliance in all material respects with
the BHC Act and the rules and regulations thereunder. The Bank (a) is duly
incorporated, duly organized, validly existing and in good standing as a
[state/national] bank under the laws of [the state or the United States], (b) is
a member in good standing of Bank Insurance Fund of the FDIC, (c) is duly
authorized and as full power and authority to conduct a general banking business
in accordance with its Charter and as described or incorporated by reference in
the Registration Statement or the Prospectus (subject to supervision by
appropriate federal and state regulatory agencies), (d) has full power and
authority to own, lease and operate its properties and assets and conduct its
business and as described or incorporated by reference in the Registration
Statement or the Prospectus, and (e) is not required to be licensed or qualified
to do business as a foreign corporation in any jurisdiction.
(ii) The description of the Company's capital stock contained in the
Registration Statement or the Prospectus is accurate and meets the requirements
of Item 12 of Form SB-2 under the Securities Act, and the Common Stock
(including the Shares) conforms to the description thereof contained in the
Registration Statement and the Prospectus.
(iii) The Company has authorized, issued and outstanding capital stock
as set forth in the Registration Statement and the Prospectus. All of the issued
and outstanding shares of capital stock of the Company have been and are duly
authorized and validly issued and outstanding, are fully paid and nonassessable,
were not issued in violation of or subject to any preemptive or similar rights
and conform to the description of the capital stock contained or incorporated by
reference in the Prospectus. The Shares to be issued, sold and delivered by the
Company in accordance with the Agreement have been and are duly authorized and
validly issued and outstanding, are fully paid, and nonassessable and will
conform to the description of the Common Stock provided in the Registration
Statement and Prospectus and in any documents incorporated therein by reference.
There are no preemptive or, to our knowledge, other rights to subscribe for or
to purchase any of the Shares. Except as disclosed in the Prospectus, there are
no outstanding options, warrants or other rights calling for the issuance of,
and no commitments, plans or arrangements to issue, any shares of capital stock
of the Company or any securities convertible into or exchangeable for capital
stock of the Company. All shares of the capital stock of the Company subject to
outstanding options or warrants have been duly authorized and, when issued in
accordance with the applicable option or warrant, will be validly issued, fully
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paid and nonassessable and will not give rise to, or be issued in violation of,
any preemptive or, to our knowledge, any similar rights. When the Shares to be
sold by the Company are delivered in accordance with the Agreement, good and
marketable title thereto, free and clear of all liens, encumbrances, security
interests, restrictions, shareholders' agreements, voting trusts and other
claims whatsoever, will be transferred to the purchasers thereof in the
offering. The holders of shares of Common Stock will not be subject to personal
liability for the obligations of the Company solely by reason of being such
holders.
(iv) All of the shares of the Company's common stock, par value $ per
share, and other securities of the Company issued prior to the date hereof were
issued by the Company in compliance with the registration requirements of
applicable federal and state securities or "Blue Sky" laws, or if not issued in
compliance with the registration requirements of applicable federal and state
securities laws, such failure to comply with respect to any such issuances will
not, individually or in the aggregate, materially and adversely affect the
condition (financial or otherwise), business, properties, net worth, results of
operations or prospects of the Company, or any actions in respect thereof are
barred by the applicable statute of limitations, and any exemptions from the
registration provisions of applicable federal and state securities laws that
were relied upon in connection with the issuance of such securities will not be
rendered inapplicable by the issuance and sale of the Shares.
(v) No consent, approval, authorization, order, registration or
qualification of or filing with any court, regulatory body, or governmental
agency, body or official is required for the execution and delivery of the
Agreement, issue and sale of the Shares, or the consummation by the Company of
the transactions contemplated in the Agreement, except for such consents,
approvals, authorizations, orders, registrations or qualifications as have been
obtained under the Securities Act and such as may be required under the "Blue
Sky" laws of any jurisdiction in connection with the purchase and distribution
of the Shares contemplated by the Registration Statement.
(vi) There are no contracts, agreements or understandings known to us
between the Company and any person or entity granting such person or entity the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or entity or to require the Company to include such
securities with the Shares to be registered pursuant to the Registration
Statement or any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(vii) To our knowledge, there is no pending or threatened action, suit,
proceeding, charge or investigation of any nature before any court or before or
by any public regulatory or governmental body or board against or involving the
Company or the Bank or the properties or business of the Company or the Bank, of
a character required to be disclosed in the Prospectus or, as to threatened
litigation, of a character which would be required to be disclosed if filed,
which is not disclosed in the Prospectus, or which if determined adversely would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, shareholders' equity or results of operations
or business of the Company or the Bank or which might materially and adversely
affect the performance of the Agreement, the issuance and delivery of the
Shares, or the consummation of the transactions contemplated by the Agreement.
(viii) Neither the issuance and sale by the Company of the Shares nor
the consummation by the Company of any of the other transactions contemplated in
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the Agreement, nor the execution, delivery and performance of, or the
fulfillment by the Company of, the terms of the Agreement, will conflict with or
constitute a breach or violation of, or default under, or result in the creation
or imposition of any lien, charge, encumbrance, claim or security interest upon
any property or assets of the Company or the Bank pursuant to the terms of any
material provision of any material written agreements to which, to our
knowledge, the Company or the Bank is a party or by which, to our knowledge, the
Company or the Bank or their assets are bound, nor will such action result in
the violation of the provisions of the Articles of Incorporation or Charter, as
the case may be, or the bylaws of the company or the Bank, or any material law,
administrative rule or regulation or arbitrators' or administrative or court
decree, judgment, or order of material franchise or permit. The Company and the
Bank are conducting their respective business so as to comply in all material
respects with all applicable statutes and regulations with which the failure to
comply would have a material adverse effect upon the condition (financial or
otherwise), business, properties, net worth, results of operations, prospects or
management of the Company or the Bank, and the Company or the Bank is not, nor
with the giving of notice or passage of time, or both, would it be, in violation
under its Articles of Incorporation, Charter or bylaws or in violation or
default in the performance or observance of any material provision of any
material written agreement which, to our knowledge, the Company or the Bank is a
party or by which, the Company or the Bank or there assets are bound. To our
knowledge, the Company and the Bank have such Permits as may be required of it
to own or lease their respective properties and conduct their respective
businesses as provided in the Prospectus and all documents incorporated by
reference therein and as presently conducted and have fulfilled and performed in
all material respects their obligations with respect to such Permits and are in
compliance therewith. To our knowledge, no event has occurred which allows, or
after notice or lapse of time or both would allow, revocation or termination
thereof or result in any other material impairment of the rights of the holder
of any such Permits. Such Permits contain no restrictions that materially affect
the ability of the Company to conduct its business or are required to be
disclosed in the Prospectus that are not disclosed therein.
(ix) The Company is not an "investment company" or a company
"controlled' by an "investment company," within the meaning of the Investment
Company Act of 1940 and, by virtue of its receipt of any proceeds from the sale
of Shares pursuant to the Agreement, will not become or be deemed to be an
"investment company" thereunder.
(x) The Company meets the requirements for use of Form SB-2 under the
Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Securities Act and, to our
knowledge no proceeding for that purpose has been instituted or is pending at
the Commission or threatened by the Commission. The Regulation Statement, the
Prospectus, and any amendment or supplement thereto (other than financial
statements and schedules which are contained or incorporated by reference
therein, and as to the section of the Prospectus entitled "Sales Agent," as to
which we need express no opinion), comply as to form in all material respects
with the requirements of the Securities Act and the Rules and Regulations,
including the requirements of Guide 3. As of the date they were filed with the
Commission, the documents incorporated by reference in the Registration
Statement (other than the financial statements and schedules contained therein,
as to which we need express no opinion) complied as to form in all material
respects with the requirements of the Exchange Act and the Exchange Act Rules
and Regulations. We have participated in the preparation of the Registration
Statement and the Prospectus and nothing has come to our attention that leads us
to believe that, on each of the Effective Date and the date of such opinion, the
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Registration Statement contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as of its
respective dates, or any amendment or supplement thereto, as of their respective
dates, contained, or as of any Time of Delivery, either the Registration
Statement or the Prospectus or any amendment or supplement thereto, contains, an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading.
(xi) We do not know of any amendment or supplement to the Registration
Statement required to filed or of any contract, agreement, instrument, lease,
license, arrangement or understanding of a character required to be filed as an
exhibit to, described in or incorporated by reference into, the Registration
Statement or the Prospectus, as amended or supplemented, which are not filed,
described or incorporated by reference as required.
(xii) The descriptions in the Registration Statement and the Prospectus
(including descriptions incorporated by reference therein) of contracts,
agreements and other documents therein described present fairly and accurately
the information required to be shown or incorporated by reference therein. The
statements and information contained or incorporated by reference in the
Registration Statement or Prospectus, and any amendment or supplement thereto,
insofar as they are so contained or incorporated, or refer to statements of law,
regulation or legal conclusions, or descriptions of statutes and regulations
relating to or affecting the business of the Company or the Bank or the
provisions of contracts, licenses and other documents and instruments to which
the Company or the Bank is a party or by which the Company or the Bank is bound
or to which any of their respective properties or assets is subject, have been
reviewed by such counsel and are fair and accurate statements and descriptions,
in all material respects. There are no statutes or regulations applicable to the
Company or the Bank or certificates, permits, or other authorizations from
governmental regulatory officials or bodies required to be obtained or
maintained by the Company or the Bank, to our knowledge of a character required
to be disclosed in the Registration Statement or the Prospectus which have not
been so disclosed and properly and accurately described therein.
(xiii) The Company has the full corporate power and authority to enter
into, deliver and perform the Agreement and to consummate the transactions
contemplated thereby, including the issuance, sale and delivery by it of the
Shares to be issued, sold and delivered by it hereunder.
(xiv) The Agreement has been duly and validly authorized, executed and
delivered by the Company and, assuming its due authorization, execution and
delivery by the Sales Agent, the Agreement will be enforceable against the
Company except to the extent that rights pursuant to Section 8 of the Agreement
may be limited by federal or state securities laws or the public policy
underlying such laws.
(xv) The form of certificate representing the Shares has been approved
by the company's Board of Directors, and such certificate complies in all
respects with the applicable provisions of law and any other applicable
requirement and is in due and proper form for the enforcement of the rights and
limitations of rights pertaining to the Common Stock which are set forth in the
Company's Articles of Incorporation and under the laws of the State of .
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the United
27
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States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinion, upon an opinion or
opinions (in form and substance reasonably satisfactory to Sales Agent's
counsel) of other counsel familiar with the applicable laws, and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the company and certificates or other written statements of officers
having custody of documents respecting the corporate existence or good standing
of the Company, or the Bank, provided that copies of all such opinions,
statements or certificates shall be delivered to Sales Agent's counsel, and if
written confirmation of the Commission is not available at the time such opinion
is rendered, upon the current oral representation of members of the Commission's
staff with respect to the Registration Statement or any amendment or supplement
thereto having become effective and the lack of issuance of a stop order or
institution of proceedings for that purpose. The opinion of counsel for the
Company shall state that the opinion of any other counsel, or certificate or
written statement, on which such counsel is relying is in form satisfactory to
such counsel and that you and they are justified in relying thereon.
Unless otherwise defined herein, capitalized terms in this Schedule
shall have the same meanings ascribed to such terms in the Agreement.
28
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SCHEDULE B
Pursuant to Section 7(e) of the Sales Agency Agreement, the independent
accountant for the Company shall furnish letters, in form and substance
satisfactory to the Sales Agent, to the effect that:
(i) They are, and were during all periods covered in their reports
included or incorporated by reference in the Registration Statement or
Prospectus, independent certified public accountants with respect to the Company
and the Bank, within the meaning of the Securities Act and the applicable rules
and regulations thereunder, are in compliance with the applicable requirements
relating to qualification of accountants under Rule 2-01 of Regulation S-X of
the SEC, and have no interest required to be disclosed in the Registration
Statement or Prospectus pursuant to Form SB-2.
(ii) In their opinion, the consolidated financial statements and any
supplementary financial information and schedules of the Company included or
incorporated by reference in the Registration Statement or the Prospectus comply
as to form in all material respects with the applicable accounting requirements
of the Securities Act, the Exchange Act, and the rules and regulations
thereunder.
(iii) They have performed a review of interim consolidated financial
statements in accordance with standards established by the American Institute of
Certified Public Accountants, including those set forth in Statement on Auditing
and standards No. 71, of the unaudited Consolidated Statements of Condition of
the Company as of [last quarter-end] and unaudited Consolidated Statements of
Income and Consolidated Statements of Cash Flows for the three months ended
[last quarter-end], included or incorporated by reference in the Prospectus or
the Registration Statement, and on the basis of such reviews they are not aware
of any material modifications that should be made to such financial statements
for them to be in conformity with generally accepted accounting principles,
consistently applied or for them to conform in all material respects with the
applicable accounting requirements of the Securities Act and the rules and
regulations with respect to Registration Statements on Form SB-2.
(iv) In addition to the audits and reviews, on the basis of limited
procedures (set forth in detail in such letter and made in accordance with such
procedures as may be specified by the Sales Agent), not constituting an
examination in accordance with generally accepted auditing standards, consisting
of a reading of the financial information regarding the Company or the Bank
included or incorporated by reference in the Registration Statement or the
Prospectus, the latest available interim financial statements of the Company,
inspection of the minute books of the Company since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus, inquiries of officials of the Company responsible for financial and
accounting matters as to transactions and events subsequent to the date of the
last audited financial statements included or incorporated by reference in the
Prospectus or in the Registration Statement, and such other inquiries and
procedures as may be specified in such letter (including certain specified
procedures as may be required by you), nothing came to their attention that
cause them to believe that:
(A) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the capital stock, shareholders' equity, classified assets,
or loan loss reserves of the Company or the Bank, or any
increase in short-term or long-term debt of the Company or the
Bank, or any decreases in current assets, investment
securities, net loans, total assets, deposits or other items
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specified by the Sales Agent or any increases in any items
specified by the Sales Agent, in each case as compared with
amounts shown on the latest balance sheet included or
incorporated by reference in the Registration Statement or the
Prospectus, except in each case of changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(B) for the period from the date of the last audited
financial statements included in the Registration Statement or
the Prospectus to the specified date referred to in Subsection
(A) above, there were any decreases in interest and
noninterest income or the total or per share amounts of net
income or other items specified by the Sales Agent, or any
increases in any items specified by the Sales Agent, in each
case as compared with the comparable period of the preceding
year and with any other period of corresponding length
specified by the Sales Agent, except in each case for
decreases or increases which the Prospectus discloses have
occurred or may occur or which are described in such letter.
(v) In addition to the examination referred to in their reports
included or incorporated by reference in the Registration Statement or
Prospectus and the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraph (iv) above, they have carried out
certain specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Sales Agent, which are
derived from the general accounting records of the Company and the Bank, which
appear or are incorporated by reference in the Registration Statement or
Prospectus, or in Part II of, or in exhibits and schedules to, the Registration
Statement as specified by the Sales Agent and have compared certain of such
amounts, percentages and financial information with the accounting records of
the Company and have found them to be in agreement.
Unless otherwise defined herein, capitalized terms in this Schedule C
shall have the meanings ascribed to such terms in the Sales Agency Agreement.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this post effective amendment No. 2 to Form SB-2
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, on the 14th day of January, 1999.
PSB BANCGROUP, INC.
By: /s/ Robert W. Woodard
---------------------
Robert W. Woodard
President,
Chief Executive Officer and
Principal Accounting Officer
Pursuant to the requirements of the Securities Act of 1933, this post
effective amendment No. 2 to Form SB-2 registration statement No. 333-44161 has
been signed by the following person in the capacities and as of the dates
indicated:
Signature Title Date
--------- ----- ----
Director January ___, 1999
John W. Burns, III
* /s/ Robert W. Woodard Director January 14, 1999
--------------------
Robert M. Eadie President and
Chief Financial Officer
* /s/ Robert W. Woodard Director January 14, 1999
--------------------
Shilpa U. Mhatre
* /s/ Robert W. Woodard Director January 14, 1999
--------------------
Alton C. Milton, Sr. Chairman of the Board
* /s/ Robert W. Woodard Director January 14, 1999
--------------------
Alton C. Milton, Jr.
* /s/ Robert W. Woodard Director January 14, 1999
--------------------
Andrew T. Moore
/s/ Robert W. Woodard Director, President January 14, 1999
--------------------
Robert W. Woodard and Chief Executive Officer
* Pursuant to Power of Attorney filed January 13, 1998,
authorizing Robert W. Woodard and Alton C. Milton, Sr., or
either of them, as the true and lawful attorneys-in-fact to sign
all amendments to the Form SB-2 Registration Statement.
3
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