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As filed with the Securities and Exchange Commission on September 30, 1998
Registration File No._________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FLORIDA BUSINESS BANCGROUP, INC.
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
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FLORIDA 6711 59-
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(STATE OR JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER)
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500 NORTH WESTSHORE BOULEVARD, SUITE 1000,
TAMPA, FLORIDA 33609
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT PRINCIPAL EXECUTIVE OFFICES)
A. BRONSON THAYER
CHAIRMAN, CHIEF EXECUTIVE OFFICER
500 NORTH WESTSHORE BOULEVARD, SUITE 1000
TAMPA, FLORIDA 33609
(813) 282-7242
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COPIES REQUESTED TO:
EDWARD W. DOUGHERTY, ESQUIRE
OR A. GEORGE IGLER, ESQUIRE
IGLER & DOUGHERTY, P.A.
1501 PARK AVENUE EAST
TALLAHASSEE, FLORIDA 32301
(850) 878-2411
(850) 878-1230 (FACSIMILE)
----------------------
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. [ ]
CALCULATION OF REGISTRATION FEE
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TITLE OF PROPOSED PROPOSED
EACH CLASS AMOUNT (1) MAXIMUM MAXIMUM
OF SECURITIES TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE(2) REGISTRATION FEE
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Common Stock $.01 par value 3,000,000 $10.00 $30,000,000 $8,850
Warrants 1,500,000 $ 0.00 $ 0 $ 0
Units 1,500,000 $ 0.00 $ 0 $ 0
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(1) Shares of Common Stock are to be issued along with a warrant to purchase
one share of Common Stock. Together each share and warrant is referred to
as a Unit.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the proposed maximum offering price per unit.
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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1,500,000 UNITS, EACH CONSISTING OF ONE SHARE OF COMMON STOCK AND ONE
PURCHASE WARRANT FOR ONE SHARE OF COMMON STOCK
MINIMUM: 700,000 UNITS ----- MAXIMUM: 1,500,000 UNITS
[LOGO] FLORIDA BUSINESS BANCGROUP, INC.
A PROPOSED BANK HOLDING COMPANY
FOR
BAY CITIES BANK
TAMPA, FLORIDA
A PROPOSED STATE-CHARTERED BANK
FLORIDA BUSINESS BANCGROUP, INC., a Florida corporation ("Company"),
hereby offers for sale a minimum of 700,000 Units and a maximum of 1,500,000
Units at a price of $10.00 per unit (the "Offering") for a 90 day period
following the effective date of the Registration Statement filed under the
Securities Act of 1933. The Company in its sole discretion may extend the
duration of the Offering for a period not to exceed an additional 90 days. Each
Unit consists of one share of Common Stock, par value $0.01, of the Company
("Common Stock") and one warrant ("Warrant") to purchase one additional share of
Common Stock at $10.00 per share. The minimum number of Units that may be
purchased is 2,000. Warrants may be exercised immediately after issuance and
will expire 36 months from the Effective Date unless redeemed sooner by the
Company. See "TERMS OF THE OFFERING - Warrants". Certificates Warrants may be
transferred by a holder, however, only in conjunction with the simultaneous
transfer of an equal number of shares. The Organizers intend to purchase, in the
aggregate, at least 305,000 Units or 43.57% of the total minimum Unit Offering.
See "TERMS OF THE OFFERING - Purchases by Organizers of the Company".
Actual sales of Units to the public are expected to be made beginning on
or about ________, 1998 and end on or about _________, 1998. The Units of the
Company are offered on a best-efforts basis by certain directors and executive
officers of the Company, who will receive no commissions for such sales. All
subscription funds tendered during the Offering Period will be deposited in an
interest-bearing escrow account with the Independent Banker's Bank of Florida
("Escrow Agent"). The Offering will be terminated and all subscription funds,
together with any interest earned thereon, will be promptly returned if all
required conditional regulatory approvals have not been obtained or the minimum
number of Units have not been subscribed to by the end of the offering period.
________, 1999 is the latest date on which the subscription funds might be held
in escrow prior to their return in the event the minimum is not reached or the
Company has not satisfied the conditional regulatory approvals. The Company may
accept or reject subscriptions obtained in the Offering accepted or rejected in
whole or in part by the Company for any reason. Once a subscription is accepted
by the Company, however, it cannot be withdrawn. See "TERMS OF THE OFFERING."
THE COMPANY 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 THE COMPANY WITHDRAWS SUBSCRIPTION FUNDS FROM THE SUBSCRIPTION ESCROW
ACCOUNT. SEE "TERMS OF THE OFFERING."
ONCE SUBSCRIPTION FUNDS HAVE BEEN RELEASED BY THE ESCROW AGENT AND SHARES
OF THE COMPANY'S COMMON STOCK ARE ISSUED, IN THE EVENT THE OFFERING IS
TERMINATED BECAUSE OF THE COMPANY'S FAILURE TO SATISFY THE CONDITIONAL
REGULATORY APPROVALS, SUBSCRIBERS WILL NOT RECEIVE A FULL REFUND OF THEIR
SUBSCRIPTION PAYMENT. SEE "TERMS OF THE OFFERING - FAILURE OF BANK TO COMMENCE
OPERATIONS."
The Company is a "development stage company" with no prior operating
history. See "RISK FACTORS - Start-up Enterprise - Lack of Operating History".
Prior to this Offering, there has been no public market for the Common Stock and
it is not anticipated that there will be an active trading market for the
Shares. There can be no assurance that an active trading market for such stock
will develop since the Company presently does not intend to seek to list the
Common Stock on a national securities exchange or to qualify such Common Stock
for quotation on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ").
INVESTMENT IN THE COMPANY INVOLVES A HIGH DEGREE OF RISK, AND INVESTORS SHOULD
NOT INVEST ANY FUNDS IN THIS OFFERING UNLESS THEY CAN AFFORD TO LOSE THEIR
ENTIRE INVESTMENT. SEE "RISK FACTORS" BEGINNING ON PAGE 6 FOR A DISCUSSION OF
THOSE RISKS THAT MANAGEMENT BELIEVES PRESENT THE SUBSTANTIAL RISKS TO AN
INVESTOR IN THIS OFFERING.
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS OR SAVINGS DEPOSITS AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE SEC PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is November ___, 1998.
(Continuation of front cover)
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THIS OFFERING IS BEING MADE ON A 700,000 UNIT MINIMUM BASIS.
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Price Underwriting
to Discounts and Proceeds to
Public(1) Commissions(2) the Company
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Per Unit ......................... $ 10 $0 $ 10
Minimum(3)........................ $ 7,000,000 $0 $ 7,000,000
Maximum(3)........................ $15,000,000 $0 $15,000,000
If all Warrants are exercised..... $30,000,000 $0 $30,000,000
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(1) The Offering price was arbitrarily determined by the Board of Directors of
the Company and does not bear any relationship to the Company's assets,
book value, net worth or any other recognized criteria of value.
(2) Before deducting Offering expenses, estimated to be approximately $30,000
including registration fees, legal and accounting fees, printing and other
expenses. See "USE OF PROCEEDS" for an itemized statement of expenses.
(3) These securities are offered on a best-efforts, 700,000 Unit minimum
basis. If payment in cash for 700,000 Units is not received prior to the
end of the Offering Period, the Offering will terminate and all
subscription funds, together with any interest earned thereon, will be
promptly returned to subscribers. All purchases of Units by the Company's
Organizers will be subject to affiliate resale limitations under the 33
Act and organizer's purchases as described herein will be made on the same
terms, including Warrant provisions, as those made by other investors. The
Organizers of the Company have represented to the Company that all
purchases of Common Stock will be made for investment purposes only and
not with a view to resell such shares. The maximum number of Shares that
will be sold in the Offering will be 1,500,000 shares. In the event the
maximum number of Shares are sold, followed by the exercise of all of the
Warrants to be issued, then the maximum number of Shares which will be
outstanding is 3,000,000. There can, however, be no assurance given that
any of the Warrants will be exercised. See "RISK FACTORS," "TERMS OF THE
OFFERING," and "ORGANIZERS AND PRINCIPAL SHAREHOLDERS."
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AVAILABLE INFORMATION
Prior to the Offering, the Company has not been required to file reports
under the Securities Exchange Act of 1934 ("Exchange Act").
The Company has filed electronically with the SEC through its Electronic
Data Gathering Analysis and Retrieval ("EDGAR") system, a Registration Statement
on Form SB-2, as amended, (together will all exhibits and schedules thereto, the
"Registration Statement") under the Securities Act of 1933, as amended with
respect to the registration of the Units and shares offered by this Prospectus.
This Prospectus does not contain all of the information set forth in such
Registration Statement and the exhibits thereto, certain parts of which are
omitted in accordance with the rules and regulations of the Commission. For
further information pertaining to the Units and Shares offered by this
Prospectus and related matters, reference is made to the Registration Statement,
including the exhibits filed as a part thereof. Each statement in this
Prospectus referring to a document filed as an exhibit to such Registration
Statement is qualified by reference to the exhibit for a complete statement of
its terms and conditions.
The Registration Statement filed electronically with EDGAR by the Company
can be inspected and copied at the public reference facilities maintained by the
Commission at its Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549. The Commission maintains a web site that contains registration
statements, reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The
Company's complete Registration Statement is available for review on this Web
Site. The address of the Web Site is http://www.sec.gov. Copies of exhibits may
also be obtained by written request addressed to: Timothy A. McGuire, President,
Bay Cities Bank (In Organization), 500 N. Westshore Boulevard, Suite 1000,
Tampa, Florida 33609.
REPORTS TO SECURITY HOLDERS
The Company intends to furnish annual reports to its shareholders which
will contain audited financial statements. In addition, the Company will be
required, under section 15(d) of the Exchange Act, to file annual and quarterly
reports with the Commission. Copies of such reports will be available to the
Company's shareholders.
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PROSPECTUS SUMMARY
The following is a summary of certain information contained in this
Prospectus and is qualified in its entirety by the more detailed information and
financial statements appearing elsewhere in this Prospectus. Prospective
investors are urged to read the entire Prospectus carefully.
RISK FACTORS
The securities offered hereby may be deemed to be speculative and involve
certain risks such as:
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- - Start-up Enterprise - Intended Purchases by Organizers
- - Dependency on Key Management - Anti-takeover Provision in Company's
- - Financial Position of the Company and Articles of Incorporation
Expected Lack of Initial Profitability - No Established Market for Shares
- - Highly Competitive Banking Market - Arbitrary Determination of Offering Price
- - Unpredictable Economic Conditions - Absence of Preemptive Rights
- - Extensive Governmental Regulation - Future Capital Needs of the Bank
- - No Plans to Pay Dividends in the - No Underwriting of this Offering
- - Foreseeable Future - Possible Dilution Resulting from Shares
- - Possible Return of Less Than the - Issued Under Warrant Plan and Directors'
Subscription Amount and Incentive Option Plans and Option Plans
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For these and other reasons, the purchase of the Units is highly
speculative and involves significant investment risks. A prospective investor
should carefully consider the matters set forth under "RISK FACTORS" and should
be prepared to lose his or her entire investment.
THE COMPANY
Florida Business BancGroup, Inc. was organized under the laws of the State
of Florida on May 18, 1998, for the purpose of operating as a bank holding
company pursuant to the Federal Bank Holding Company Act of 1956, as amended
("BHC Act"). In order to fund the organizational and preopening expenses of the
proposed bank (estimated to be approximately $400,000), the Organizers initially
advanced $90,000 to the Company. The Company's obligation to repay these
advances to the Organizers have been extinguished in exchange for the issuance
of preferred stock by the Company of $90,000 in preferred stock which is
redeemable within one year after the release of subscription funds by the Escrow
Agent. After the redemption period, the preferred stock would pay a dividend at
the sole discretion of the Company. Through September 30, 1998, the Company has
expended $76,381.03 for organizational expenses. See "TERMS OF THE OFFERING -
Purchases by Organizers of the Company". The Company intends to use the net
proceeds of this Offering to purchase 100% of the common stock to be issued by
Bay Cities Bank ("Bank"), to repay organizational expenses and for other general
corporate purposes. Neither the Company nor the Bank has commenced business
operations, and neither will do so until the Offering Period is completed and
the requisite approvals of the Florida Department of Banking and Finance
("Department"), the Federal Deposit Insurance Corporation ("FDIC") and the Board
of Governors of the Federal Reserve System ("Federal Reserve") are obtained. The
main office of the Company and the Bank will be located in Tampa, Hillsborough
County, Florida. The Company's mailing address during the organizational period
is 500 N. Westshore Boulevard, Suite 1000, Tampa, Florida 33609 and the
telephone number is (813) 282-7242. See "THE COMPANY".
THE BANK
It is anticipated that the Bank will commence business operations sometime
during the fourth quarter of 1998, or as soon thereafter as practicable. The
Bank will engage in a general commercial and retail banking business with
primary emphasis upon high quality service to meet the financial needs of the
individuals and businesses residing and located in and around Tampa, Florida. As
part of its regular business operations, the Bank will offer a full compliment
of loans, including commercial, consumer/installment and real estate loans. The
Organizers expect that commercial loans will account for approximately one-half
of the Bank's estimated total loan portfolio. Commercial loans are loans made to
individual, partnership or corporate borrowers for a variety of business
purposes. Commercial loans have a higher risk of loss than consumer or real
estate loans. To the extent that borrowers fail to repay their loans, such
failure
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may have a material adverse effect on the Bank's and the Company's earnings and
overall financial condition, as well as, the value of the Common Stock. See
"BUSINESS OF THE BANK".
It is intended that the Bank will operate at Austin Center West, Tower II,
1408 North Westshore Boulevard, Suite 502, Tampa, Florida 33609, for at least
the first 10 months of operation, and that the Bank's permanent facility will be
available for occupancy by September 1, 1999. The Company has entered into lease
agreements with NovaCare, Inc. for the temporary facility and Crescent
Resources, for the permanent facility. The permanent facility is to be located
in a commercial office building to be known as International Plaza. See
"BUSINESS OF THE COMPANY - Premises" and "BUSINESS OF THE BANK - General".
TERMS AND CONDITIONS OF THE OFFERING
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Units Offered ................................ Up to 1,500,000 Shares are being offered to the public in Units
consisting of one share of Common Stock and one Warrant. A minimum
of 700,000 Units are required to be sold in this Offering.
See "TERMS OF THE OFFERING."
Warrants....................................... Each Warrant will entitle the holder thereof to purchase one
share of additional Common Stock for $10.00 per share
during the 36-month period following the Effective
Date of Registration of the Shares. Warrants
subscribed to in the Offering Period and subsequently
issued will expire 36 months from the Effective Date
of Registration, unless redeemed sooner by the
Company pursuant to the Warrant Plan. The Warrants
are transferrable only in connection with the
transfer of a like number of Shares as provided in
the Warrant Plan. See "TERMS OF THE OFFERING -
Warrants".
Common Stock Outstanding After the
Offering (exclusive of any shares issued
pursuant to the exercise of warrants and
options)....................................... Minimum - 700,000 Shares
Maximum - 1,500,000 Shares
Price.......................................... $10.00 per Unit.
Use of Proceeds................................ Proceeds of the Offering will be used to purchase 100% of the
issued and outstanding capital stock of the Bank; to
provide working capital for the Bank to commence its
business operations (including officers' and
employees' salaries); to pay expenses in connection
with the formation of the Company, the organization
of the Bank, and this Offering; and for other
corporate purposes of the Company. Proceeds not used
to purchase Bank stock will be retained by the
Company and will be used to fund future capital
requirements of the Bank, as well as for other
permissible investments for bank holding companies,
including the possible acquisition of other financial
institutions. See "USE OF PROCEEDS."
Conditions of the Offering..................... The Offering will expire 90 days from the Effective Date of
Registration unless extended for up to an additional
90 days by the Company. Funds received by the
Company during the Offering Period will be deposited
with the Escrow Agent. Funds so deposited may be
released to the Company only in accordance with the
terms of the Escrow Agreement between the Company and
the Escrow Agent. The Offering will be terminated by
the Company at the end of the Offering Period if
subscriptions for 700,000 Units have not been
received and deposited with the Escrow Agent or if
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all conditional regulatory approvals have not been
received by the Company and the Bank, or the Company
has canceled the Offering prior to withdrawing funds
from the Subscription Account.
Stock Options.................................. The Company intends to grant each of the proposed Organizing
directors options to purchase 7,694 shares of common
stock under a non-qualified Directors Stock Option
Plan. The Company intends to grant Timothy A.
McGuire, the President of the Company and President
and Chief Executive Officer of the Bank, qualified
stock options to purchase a minimum of 34,444 shares
of common stock pursuant to a Employee Stock Option
Plan. These stock options, which the Company intends
to grant at no cost to the directors or employees,
bear a minimum exercise price of $10.00 per share,
and are subject to shareholder approval following the
Bank's commencement of business. See "ORGANIZERS AND
PRINCIPAL SHAREHOLDERS."
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RISK FACTORS
PROSPECTIVE INVESTORS IN THE COMMON STOCK SHOULD GIVE CAREFUL ATTENTION TO
THE FOLLOWING STATEMENTS RESPECTING CERTAIN RISKS APPLICABLE TO THE OFFERING,
WHICH RISKS INCLUDE BUT ARE NOT LIMITED TO THOSE NOTED BELOW. OTHER FACTORS OF
IMPORTANCE ARE SET OUT ELSEWHERE IN THIS PROSPECTUS.
START-UP ENTERPRISE - LACK OF OPERATING HISTORY
Neither the Company nor the Bank has commenced business operations. Both
are newly organized entities with no operating history. The business of the
Company and the Bank is therefore subject to the risks associated with new
businesses. In addition, because the Bank has not commenced operations,
investors will not have the information normally associated with investments in
a financial institution with a history of operations. The Company's
profitability will depend primarily on the operations of the Bank. Therefore,
without any operating history there can be no assurance the Company will ever be
profitable.
DEPENDENCY ON KEY MANAGEMENT
Regulatory approval to establish and operate a state-chartered bank is,
among other things, dependent upon the Department's approval of such bank's
proposed chief executive officer. Generally, the chief executive officer of a
start-up financial institution is deemed to be vital to the potential success of
the new institution. The Bank's application for a charter filed with the
Department proposed Timothy A. McGuire as the Bank's Chief Executive Officer. In
the event of death, disability, resignation or other event causing the
unavailability of Mr. McGuire, final regulatory approval to commence banking
operations would be delayed until such time as a suitable replacement is
approved by the Department. The Company intends to obtain "Key Man" life
insurance on the life of Mr. Timothy A. McGuire in an amount of not less than
$250,000.
FAILURE TO RECEIVE REGULATORY APPROVALS
Final regulatory approval to commence banking operations will not be
obtained until the Company has expended a portion of the proceeds of this
Offering to employ personnel, rent temporary office space and pay other
pre-opening expenses. The Company received the Department's conditional approval
of the proposed Bank's charter application on ________ __,1998. The Company
received conditional approval of its application for deposit insurance from the
FDIC on _______ __, 1998. Finally, the Company filed an application to become a
one-bank holding company on __________ __, 1998. The conditional charter issued
by the Department requires that final approval to commence banking operations be
obtained within twelve months after receipt of conditional approval. While
management of the Company is confident that all of the necessary regulatory
approvals will be obtained there can be no assurance that the foregoing
approvals will be obtained. In the event that the Company issues the shares of
Common Stock and final approval to commence banking operations is not granted
within twelve months after receipt of preliminary regulatory approvals, the
Company will solicit shareholder approval for its dissolution and liquidation.
In such event, the Company will promptly return to subscribers all subscription
funds and interest earned thereon, less all expenses incurred by the Company,
including the Offering expenses, the organizational and pre-opening expenses of
the Company and the Bank. In the event of dissolution and liquidation, it is
likely that subscribers will receive only a portion of their initial investment
due to the foregoing expenses. See "TERMS OF THE OFFERING - Failure of Bank to
Commence Operations."
FINANCIAL POSITION OF THE COMPANY AND EXPECTED LACK OF INITIAL PROFITABILITY
The initial activity of the Company will be to act as the sole shareholder
of the Bank. Thus, the profitability of the Company will be dependent upon the
successful operation of the Bank. Typically, new banks are not profitable in the
first year of operation and sometimes are not profitable for several years. The
Bank will incur significant expenses in establishing itself as a going concern
and there can be no assurance that the Bank will be operated profitably or that
future earnings, if any, will meet the levels of earnings prevailing in the
banking industry. Although there can be no assurance of success, the Organizers
believe the Bank will be able to successfully implement its business plan as a
result of the selection of a favorable market area and the experience and
personal contacts of its Board of Directors and management.
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HIGHLY COMPETITIVE BANKING MARKET
The Bank will engage in a general commercial and retail banking business
in Tampa, Hillsborough County, Florida. Competition among financial institutions
in the Bank's primary market area is intense. The Bank will compete with other
state banks, consumer finance companies, money market mutual funds, and other
financial institutions which have far greater financial resources than those
available to the Bank. Additionally, the Bank will compete with banks, savings
institutions and credit unions located in nearby markets which solicit business
from the Bank's Primary Service Area. If the Bank is unable to compete for
deposits effectively in its primary service area, such inability would likely
have an adverse effect on the Bank's potential for growth and profitability. See
"BUSINESS OF THE BANK - Market Area and Competition."
UNPREDICTABLE ECONOMIC CONDITIONS
Commercial banks and other financial institutions are affected by economic
and political conditions, both domestic and international, and by governmental
monetary policies. Conditions such as inflation, recession, unemployment, high
interest rates, short money supply, international disorders and other factors
beyond the control of the Company and the Bank may adversely affect their
profitability. See "BUSINESS OF THE BANK Monetary Policies."
EXTENSIVE GOVERNMENTAL REGULATION
The Company and the Bank will operate in a highly regulated environment
and will be subject to supervision by several governmental regulatory agencies,
including the Federal Reserve, the Department, the FDIC and the Commission. The
regulations governing the Company and the Bank are intended to protect
depositors, not shareholders. The Company and the Bank will be vulnerable to
future legislation and government policy, including bank deregulation and
interstate expansion, which could adversely affect the banking industry as a
whole, including the operations of the Company and the Bank. See "SUPERVISION
AND REGULATION."
NO PLANS TO PAY DIVIDENDS IN THE FORESEEABLE FUTURE
It is not anticipated that the Company will distribute any dividends to
shareholders in the foreseeable future. Earnings of the Bank, if any, are
expected to be retained by the Bank to enhance its capital structure or
distributed to the Company to defray its operating costs. Dividend by state
banks are restricted by statute and regulation. See "DIVIDEND POLICY."
INTENDED PURCHASES BY ORGANIZERS
The Organizers intend to purchase 305,000 Units in the Offering. These
purchases represent 43.57% of the minimum of 700,000 Units required in order to
release subscription proceeds from the Subscription Escrow Account. However,
should the Organizers exercise all of their warrants and options and other
shareholders not exercise their warrants, the organizers would own 64.12% of the
outstanding common stock of the Company. See "ORGANIZERS AND PRINCIPAL
SHAREHOLDERS." The Organizers may purchase up to an additional 10% of the total
Units sold in the Offering. The ownership of more than 25% of the Company's
Shares will virtually assure control of the election of directors of the Company
in future years. The Organizers have represented to the Company that all
purchases of Common Stock will be made for investment purposes only and not with
a view to resell such shares. See "TERMS OF THE OFFERING - Purchases by
Organizers of the Company".
FAILURE OF THE BANK TO COMMENCE OPERATIONS; RETURN OF SUBSCRIPTION FUNDS
Before the Bank can open for business it must obtain final approval from
both the Department and the FDIC. In the event that the Company issues shares of
Common Stock and such approvals are not obtained, the Company will return to
subscribers only those funds remaining after deduction for expenses incurred by
the Company for this Offering and the organizational and preopening expenses of
the Company and the Bank. In the event final regulatory approvals are not
obtained, subscribers will be entitled to a return of only a portion of their
subscription funds. As of July 31, 1998, the Company's accumulated deficit was
$35,665, and the Company will continue to incur pre-opening expenses until the
Bank commences operations. It is estimated that the Company will expend as much
as $400,000 during the organizational stage and in the event of liquidation,
incur other costs of as much as $300,000 or a total of $1.00 per share
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based upon the minimum of 700,000 Shares. No assurances can be given that such
expenses and costs will not significantly exceed this estimate. See, "TERMS OF
THE OFFERING - Failure of Bank to Commence Operations."
POSSIBLE CREDITORS CLAIMS AGAINST THE COMPANY
Once the Company issues the shares of Common Stock offered hereby, the
Offering proceeds may be considered part of general corporate funds and thus may
be subject to the claims of creditors of the Company, including claims against
the Company that may arise out of actions of the Company's officers, directors,
or employees. It is possible, therefore, that one or more creditors may seek to
attach the proceeds of the Offering prior to the Bank's commencement of banking
operations. If such an attachment occurs and it becomes necessary to refund the
subscription proceeds to shareholders because of the failure to obtain the
required regulatory approvals, the refund process might be delayed and will be
reduced by the amount of the attachment.
ANTI-TAKEOVER PROVISIONS
The Company's Articles of Incorporation ("Articles") contain provisions
requiring supermajority shareholder approval to effect certain extraordinary
corporate transactions which are not approved by the Board of Directors. The
effect of these provisions is to make it more difficult to effect a merger, sale
of control or similar transaction involving the Company even though a majority
of the Company's shareholders may vote in favor of such a transaction. In
addition, the Company's Articles provide for classes of Directors, whereby
one-third of the members of the Board of Directors shall be elected each year
and each director of the Company will serve for a term of three years. The
effect of these provisions is to make it more difficult to effect a change in
control of the Company through the acquisition of a large block of the Company's
Common Stock. See "DESCRIPTION OF COMMON STOCK" and "Appendix A."
NO ESTABLISHED MARKET FOR SHARES
Presently there is no established market for the Common Stock. There can
be no assurance that an established public market will develop for such
securities upon completion of this Offering or that substantial trading activity
in the Shares will occur for several years, if at all. Moreover, in the event
that the Organizers subscribe for additional Units in this Offering, an
established public market of the Common Stock will be less likely to develop. As
a result, investors who may need or wish to dispose of all or a part of their
investment in the Common Stock may not be able to do so except by private,
direct negotiations with third parties. The Company does not presently intend to
seek to list the Common Stock on a national securities exchange or to qualify
such Common Stock for quotation on NASDAQ. At such time as the Company's stock
qualifies for listing on NASDAQ, the Company may seek to list the Shares for
quotation.
ARBITRARY DETERMINATION OF OFFERING PRICE
Prior to this Offering there has been no established market for the shares
of the Company's Common Stock. The Offering price was arbitrarily determined by
the Board of Directors of the Company, and does not bear any relationship to the
Company's assets, book value, net worth or any other recognized criteria of
value. In determining the Offering price of the Shares, the Department's capital
requirements for the Bank and general market conditions for the sale of such
securities were considered. 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.
ABSENCE OF SHAREHOLDER PREEMPTIVE RIGHTS
No holder of the Common Stock of the Company will have preemptive rights
with respect to the issuance of shares of any class of stock. The total number
of Common Stock which the Company shall have the authority to issue is
10,000,000 shares of Common Stock, par value $0.01 per. Each share of Common
Stock is entitled to one vote per share in all matters requiring a vote of
shareholders. The Board of Directors of the Company could from time to time
determine to issue additional shares of the authorized Common Stock in addition
to the shares offered hereby, and in such event the ownership interest of the
subscribers in this Offering may be diluted.
8
<PAGE> 11
FUTURE CAPITAL NEEDS OF THE BANK
The Board of Directors of the Company may determine from time to time to
obtain additional capital through the issuance of additional shares of the
authorized Common Stock of the Company. There can be no assurance that such
shares will be issued at prices or on terms equal to the Offering price and
terms of this Offering.
NO UNDERWRITER OF THIS OFFERING
This Offering is being made without the services of an underwriter. Sales
of the Company's Units will be solicited only by certain executive officers and
directors of the Company. Accordingly, there can be no assurance that the
minimum number of Units required to be sold will be sold at the expiration of
the Offering period. See "TERMS OF THE OFFERING."
POSSIBLE DILUTION RESULTING FROM WARRANTS AND OPTIONS
Up to 1,500,000 Shares may be issued pursuant to the exercise of Warrants
issued in the Offering, assuming the sale of all 1,500,000 Units. Additionally,
up to 57,496 Shares may be issued pursuant to the Directors' Stock Option Plan
("Directors' Plan") and the Key Employee Stock Option Plan ("Incentive Plan").
In the event all Warrants and Options are exercised, the Company will have
3,057,496 Shares outstanding. Warrants issued in this Offering are transferable
only if transferred simultaneously in conjunction with an equal number of
Shares. Shareholders who do not exercise, or are not able to exercise Warrants
received in this Offering, may suffer a dilution of their investment in terms of
book value if other Warrant or Option holders exercise their Warrants or Options
and the book value of the Shares is greater than $10.00 at the time of such
exercise. In addition, an individual shareholder's percentage of ownership may
be reduced if such shareholder fails to exercise his or her Warrants and other
shareholders exercise their Warrants or Options.
POSSIBLE CONTROL OF THE COMPANY BY ORGANIZERS
The exercise of Warrants or Options by the Organizers may result in
Organizers increasing their percentage of ownership thereby diluting
non-organizers' percentage of ownership. Assuming the sale of 700,000 Units, all
of which contain one Warrant, the exercise of all Warrants and Options held by
Organizers and no Warrants held by non-organizers, then the Organizers'
aggregate percentage of ownership, including shares purchased in this Offering
will be 64.12%. Assuming the exercise of all outstanding Warrants and Options by
all shareholders, the Organizers' percent of ownership will be 22.8%.
Additionally, Organizers may purchase up to an additional 10% of the total Units
sold in the Offering. The ownership of more than 25% of the Company's Shares by
the Organizers virtually assures that Organizers will control the election of
the directors of the Company. See "ORGANIZERS AND PRINCIPAL SHAREHOLDERS."
POSSIBLE RETURN OF LESS THAN THE SUBSCRIPTION AMOUNT
The Company expects to issue Common Stock before it has obtained all final
regulatory approvals for the Bank. In the event that the Company issues the
Common Stock and the Department does not grant the Bank final regulatory
approval to commence banking operations within 12 months after the Bank's
receipt of preliminary approval from the Department, the Company will promptly
return to subscribers all subscription funds and interest earned thereon, less
all expenses incurred by the Company, including the expenses of the Offering and
the organizational and pre-opening expenses of the Company and the Bank.
Once the Company issues the Common Stock offered hereby, the Offering
proceeds may be considered part of general corporate funds and thus may be
subject to the claims of creditors of the Company, including claims against the
Company that may arise out of actions of the Company's officers, directors, or
employees. It is possible, therefore, that one or more creditors may seek to
attach the proceeds of the Offering prior to the Bank's commencement of banking
operations. If such an attachment occurs and it becomes necessary to pay the
subscription funds to shareholders because of failure to obtain all necessary
regulatory approvals, the payment process might be delayed; and if it becomes
necessary to pay creditors from the subscription funds, the payment to
shareholders might be further reduced.
9
<PAGE> 12
MINIMUM AND MAXIMUM LENDING LIMITS
Florida Law allows a state bank to extend credit to any one borrower in an
amount up to 25% of its capital accounts, provided that the unsecured portion of
any such loan may not exceed 15% of the capital accounts of the bank. Based upon
the proposed investment of $6,000,000 in capital stock of the Bank, the maximum
loan the Bank will be permitted to make is $1,500,000, provided that the
unsecured portion may not exceed $900,000. Assuming that the maximum proceeds of
the Offering including the exercise of all warrants were invested in the Bank,
the maximum loan the Bank would be permitted to make would be approximately
$7,500,000 provided that the unsecured portion could not exceed $4,500,000.
THE COMPANY
Florida Business BancGroup, Inc. was incorporated under the laws of the
State of Florida on May 18, 1998 to operate as a bank holding company pursuant
to the BHC Act, and to purchase 100% of the issued and outstanding capital stock
of Bay Cities Bank, a state-chartered commercial bank to be organized under the
laws of Florida. Bay Cities Bank will conduct a general banking business in
Tampa, Florida. The Organizers filed an Application for Authority to Organize
with the Department on September 8, 1998. On _________ __, 1998, the Company
received the Department's conditional approval to Organize. The Company also
filed its application for federal deposit insurance with the FDIC on September
___, 1998, and is awaiting FDIC conditional approval. The Company expects to
file an application to become a one-bank holding company with the Federal
Reserve Bank of Atlanta in the next 30 days.
The Bank expects to commence operations sometime in the fourth quarter of
1998, or at the earliest practicable time thereafter. See "BUSINESS OF THE
BANK." The Organizers of the Company are nine individuals, eight of which reside
in Hillsborough County, Florida and one of which reside in Pinellas County,
Florida. See "ORGANIZERS AND PRINCIPAL SHAREHOLDERS." All of the Organizers of
the Company will serve on both the initial Board of Directors of the Company and
the initial Board of Directors of the Bank. See "MANAGEMENT."
Initially the principal offices of the Company and the Bank will be located
at Austin Center West, Tower II, 1408 North Westshore Boulevard, Suite 502,
Tampa, Florida 33609. See "BUSINESS OF THE COMPANY - Premises." The mailing
address of the Company's present office, which it will occupy until the Bank
opens for business, is 500 N. Westshore Boulevard, Suite 1000, Tampa, Florida
33609, and its telephone number is (813) 282-7242.
TERMS OF THE OFFERING
GENERAL
The Company is Offering hereunder up to 1,500,000 Shares of its Common
Stock for cash in Units at a price of $10.00 per Unit. A minimum subscription of
2,000 Units is required for each subscription hereunder. No single individual
investor, other than individual Organizers, may subscribe for more than 148,500
Units or more than 9.9% of the total number of Shares issued or subscribed for
at the time a subscription is received by the Company during the Offering
Period. The purchase price of $10.00 per Unit shall be paid in full upon
execution and delivery of the Unit Order Form. All subscriptions tendered by
investors are subject to acceptance by the Board of Directors of the Company
through its duly authorized Subscription Committee, and the Company reserves the
absolute and unqualified right to reject or reduce any subscription for any
reason prior to acceptance. Furthermore, the Company reserves the right to
cancel this Offering at any time prior to the time the Company withdraws funds
from the Subscription Escrow Account, for any reason whatsoever. For a 36-month
period following the effective date of Registration the Company will issue up to
1,500,000 Shares pursuant to the Company's Warrant Plan and the Warrants issued
thereunder.
WARRANTS
The Company has adopted a Warrant Plan which provides for the issuance of
up to 1,500,000 Warrants in connection with the Offering. Warrants subscribed to
will expire 36 months from the Effective Date of Registration unless redeemed
sooner in accordance with the terms of the Warrant Plan. Unexpired Warrants may
be exchanged for Shares upon the payment of $10.00 per share to the Company,
subject to the requirement that the minimum number of Shares which will be
issued upon any single presentment will be 100 Shares unless the Warrant
presented is for less than 100 Shares, at which time
10
<PAGE> 13
all shares must be purchased. Certificated Warrants may be transferred by a
holder only in conjunction with the simultaneous transfer of an equal number of
Shares. Warrants may be exercised by presenting an executed Warrant Certificate,
along with a check representing the full amount of the exercise price, to:
Timothy A. McGuire, President, Florida Business BancGroup, Inc.
NO ESTABLISHED MARKET
Prior to this Offering there has been no established public market for the
shares of the Common Stock and/or Warrants and there can be no assurance that an
established market for such stock or Warrants will develop. The Offering price
has been arbitrarily determined and is not a reflection of the Company's book
value, net worth or any other such recognized criteria of value. In determining
the Offering price of the Common Stock, the regulatory capital requirements of
the Bank and general market conditions for the sale of such securities were
considered. There can be no assurance that, if a market should develop for the
Common Stock or Warrants, the post-Offering market price will equal or exceed
the initial Offering price.
PLAN OF DISTRIBUTION
Pursuant to Commission Rule 415, (17 C.F.R. Section 230.415), the Company
intends to offer the Units on a continuous basis for a period of up to 180 days
from the effective date and shares to be issued pursuant to the Warrants for up
to three years from the Effective Date.
Units will be offered by certain officers and directors of the Company.
The officers and directors will not receive any commissions or other
remuneration in connection with these activities, but they may be reimbursed for
reasonable expenses incurred as a result of such activities, if any. In reliance
on Rule 3a4-1 of the Securities and Exchange Act of 1934 ("Exchange Act"), the
Company believes that its officers and directors who are engaged in the sale of
the Units will not be deemed to be brokers and/or dealers under the Exchange
Act. Units will be offered primarily to persons who work or reside in
Hillsborough County, Florida. To a limited extent, Units will be offered to
friends, acquaintances and family members of the Organizers, some of whom live
outside the Hillsborough County community and some of whom may live outside of
the State of Florida. Persons indicating an interest in acquiring Common Stock
will be provided with a copy of this Prospectus prior to the Company accepting
subscription funds. Subscriptions will be accepted only if accompanied by a
proper Unit Order Form. During this Offering Period the Company will conduct its
first Closing if the conditions required to Close have been met.
CONDITIONS OF THE OFFERING
The Offering will expire at 5:00 p.m. Eastern Time, on ___________, 1998
(the "Expiration Date"). The Offering is expressly conditioned upon fulfillment
of the following conditions ("Offering Conditions") within the Offering Period.
The Offering Conditions, which may not be waived, are as follows:
(a) Subscriptions for not less than $7,000,000 shall have been deposited
with the Escrow Agent;
(b) The Company shall have received conditional approval from the Federal
Reserve of its application to become a one-bank holding company, the
Organizers shall have received conditional approval from the
Department to charter the Bank and the proposed Bank shall have
received conditional approval of its application for deposit insurance
from the FDIC; and
(c) The Company shall not have canceled this Offering prior to the time
funds are withdrawn from the Subscription Escrow Account.
ESCROW OF SUBSCRIPTION FUNDS
All subscription funds and documents tendered by investors will be placed
in the Subscription Escrow Account with the Independent Bankers' Bank of
Florida, Orlando, Florida ("Escrow Agent"), pursuant to the terms of the Escrow
Agreement, the form of which is attached to this Prospectus as Appendix "B".
Upon receipt of a certification from the Company during the Offering Period
that: (i) the required conditional regulatory approvals have been received; and
(ii) subscriptions totaling not less than $7,000,000 have been received, the
Escrow Agent will release all subscription funds, and any income received
thereon, to the Company.
11
<PAGE> 14
Pending disposition of the Subscription Escrow Account under the Escrow
Agreement, the Escrow Agent is authorized, upon instructions to be given by
either A. Bronson Thayer or Timothy A. McGuire to invest subscription funds in
direct obligations of the United States Government, in short-term insured
certificates of deposit and/or money market management trusts for short-term
obligations of the United States Government, with maturities not to exceed 90
days. The Company will invest the subscription funds in a similar manner after
breaking escrow and prior to the time that the Company infuses capital into the
Bank. The Offering proceeds will be used to purchase capital stock of the Bank
and to repay expenses incurred in the organization of the Company and the Bank.
See "USE OF PROCEEDS."
In the event the Offering Conditions are not met within the Offering
Period or the Offering is terminated by the Company prior to withdrawing the
Subscription Funds, the Escrow Agent shall promptly return to the subscribers
their subscription funds, together with their allocated share of income, if any,
earned on the investment of the Subscription Escrow Account. Each Subscriber's
proportionate share of Subscription Escrow Account earnings shall be that
fraction (i) the numerator of which is the dollar amount of such subscriber's
tendered subscription multiplied by the number of days between the date of
acceptance of the investor's subscription and the date of the termination of the
Offering, inclusive (the subscriber's "Time Subscription Factor"), and (ii) the
denominator of which is the aggregate Time Subscription Factor of all investors
depositing subscription funds in the Subscription Escrow Account. The latest
date to which the subscription funds might be held in escrow prior to their
return in the event the minimum is not reached or the required regulatory
approvals are not received is February __, 1999.
NO ASSURANCE CAN BE GIVEN THAT SUBSCRIPTION FUNDS CAN OR WILL BE INVESTED
AT THE HIGHEST RATE OF RETURN AVAILABLE OR THAT ANY INCOME WILL BE REALIZED FROM
THE INVESTMENT OF SUBSCRIPTION FUNDS.
If all Offering Conditions are satisfied, and the Company withdraws the
subscription funds from the Subscription Escrow Account, all earnings on such
account shall belong to the Company.
The Independent Bankers' Bank of Florida, by accepting appointments as
Escrow Agent under the Escrow Agreement, in no way endorses the purchase of the
Company's securities by any person.
FAILURE OF BANK TO COMMENCE OPERATIONS
The Department requires that a new state bank open for business (i.e.,
obtain a certificate of authorization) within 12 months after receipt of
preliminary approval from the Department. The Organizers anticipate that the
Bank will open for business sometime in the fourth quarter of 1998 or as soon
thereafter as practicable. Because final approval of the Bank's charter is
conditioned on the Company's raising funds to capitalize the Bank at $6,000,000,
the Company expects to issue the shares of Common Stock before it has obtained
all final regulatory approvals for the Bank. In the event that the Company
issues the shares of Common Stock and the Department does not grant the Bank
final regulatory approval to commence banking operations within 12 months after
the Bank's receipt of preliminary approval from the Department, the Company will
promptly return to subscribers all subscription funds and interest earned
thereon, less all expenses incurred by the Company, including the expenses of
the Offering and the organizational and pre-opening expenses of the Company and
the Bank. This return may be further reduced by amounts paid to satisfy claims
of creditors, as discussed in the following paragraph.
Once the Company issues the Common Stock offered hereby, the Offering
proceeds may be considered part of general corporate funds and thus may be
subject to the claims of creditors of the Company, including claims against the
Company that may arise out of actions of the Company's officers, directors, or
employees. It is possible, therefore, that one or more creditors may seek to
attach the proceeds of the Offering prior to the Bank's commencement of banking
operations. If such an attachment occurs and it becomes necessary to pay the
subscription funds to shareholders because of failure to obtain all necessary
regulatory approvals, the payment process might by delayed; and if it becomes
necessary to pay creditors from the subscription funds, the payment to
shareholders will be further reduced. As of September 30, 1998, the Company's
accumulated deficit was $76,381.03, and the Company will continue to incur
pre-opening expenses until the Bank commences operations. It is estimated that
the Company will expend as much as $400,000 in organizational expenses and in
the event of any liquidation, incur other costs of as much as $300,000, or $1.00
per Share based upon the minimum of 700,000 Shares. No assurances can be given
that such expenses and costs will not significantly exceed this estimate.
12
<PAGE> 15
PURCHASES BY ORGANIZERS OF THE COMPANY
The Organizers have indicated they intend to purchase 305,000 Units in the
Offering. The Organizers may purchase additional Shares in the Offering equal to
10% of their intended purchases. All additional purchases will be made on the
same terms, including the same number of Warrants, as those made by other
investors. Any such purchases of Units by the Organizers will be subject to
affiliate resale limitations of the 33 Act. The Organizers have represented to
the Company that all purchases will be made for investment purposes only and not
with a view to resell such shares. See "ORGANIZERS AND PRINCIPAL SHAREHOLDERS."
In order to provide funds for the payment of initial organizational and
pre-opening expenses, the Organizers initially advanced $90,000 to the Company.
The Company's obligation to repay these advances to the Organizers have been
extinguished in exchange for the issuance of 900 shares of redeemable preferred
stock from the Company at a price of $100 per share. The preferred stock is
redeemable by the Company for the purchase price at any time after the release
of funds by the escrow agent and will not mandate the payment of any dividend,
but will have a distribution preference above common stock in the event of a
dissolution of the Company. After the redemption period, the preferred stock
would pay a dividend at the sole discretion of the Company.
OTHER TERMS AND CONDITIONS/HOW TO SUBSCRIBE
The Company may cancel this Offering for any reason at any time prior to
the release of subscription funds from the Subscription Escrow Account, and
accepted subscriptions are subject to cancellation in the event that the Company
elects to cancel the Offering in its entirety.
Units will be marketed on a best-efforts basis exclusively through certain
directors and executive officers of the Company, none of whom will receive any
commissions or other form of remuneration based on the sale of the Units.
However, in the event that the Offering Conditions have not been satisfied by
December 1, 1998, the Company may engage an underwriter to sell the Units on a
best-efforts basis and such underwriter would receive a commission based upon
such sales. It is anticipated that commissions paid to such underwriter, if
retained, will not exceed 7% of the $10.00 per Unit sales price and that other
expenses of such underwriting will not exceed an aggregate of $100,000. In the
event the Company engages an underwriter to sell Units prior to the expiration
of the Offering Period, a post-effective amendment to the Registration Statement
will be filed with the SEC containing the terms of any agreements entered into
with such underwriters and discussing any fees or expenses associated with such
agreements. In the event that the Offering Conditions have not been satisfied by
the end of the Offering Period, this Offering will be terminated and the
subscription funds promptly returned to the subscribers, together with their
allocated share of earnings, if any, earned on the investment of the
Subscription Escrow Account as described herein. See "TERMS OF THE Offering -
Escrow of Subscription Funds."
As soon as practicable, but no more than ten-business days after receipt
of a subscription, the Company will accept or reject such subscription.
Subscriptions not rejected by the Company within this ten-day period shall be
deemed accepted. Once a subscription is accepted by the Company, it cannot be
withdrawn by the subscriber. Payment from any subscriber for Units in excess of
the number of Units allocated to such subscriber, if any, will be refunded by
mail, without interest within ten days of the date of rejection.
Subscriptions to purchase shares of Common Stock can be made by completing
the Stock Order Form attached to this Prospectus (Appendix C) and delivering the
same to the Company at its offices, 500 N. Westshore Boulevard, Suite 1000
Tampa, Florida 33609, or mailing the same in the enclosed self-addressed
envelope. Full payment of the purchase price must accompany the subscription.
Failure to pay the full subscription price shall entitle the Company to
disregard the subscription. No Unit Order Form is binding until accepted by the
Company, which may, in its sole discretion, refuse to accept any subscription
for Units, in whole or in part, for any reason whatsoever. After a subscription
is accepted and proper payment received, the Company shall not cancel such
subscription unless all accepted subscriptions are canceled. Unless otherwise
agreed by the Company, all subscription amounts must be paid in United States
currency by check, bank draft or money order payable to "IBBF, for Florida
Business BancGroup, Inc." A subscription will be accepted in writing by the
Company only in the Form of Acceptance attached to this Prospectus.
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<PAGE> 16
USE OF PROCEEDS
The gross proceeds from the sale of Units offered by the Company are
estimated to be a minimum of $7,000,000. This estimate is based upon the
assumption that the sale of 700,000 Units occurs prior to the expiration of the
Offering Period. However, if 700,000 Units are not sold, prior to the expiration
of the Offering Period, then the Offering will terminate and all funds received
from subscribers, adjusted for any income thereon, will be promptly refunded.
See "TERMS OF THE OFFERING."
The estimated Organizational and Offering expenses of the Company are as
follows:
<TABLE>
<S> <C>
Offering Expenses(1) $ 30,000
Organizational Expenses(2) 370,000
--------
TOTAL $400,000
========
</TABLE>
- -------------------
(1) Comprised primarily of certain legal fees, marketing costs, registration
fees, accounting fees, escrow fees, printing and mailing costs and other
offering expenditures.
(2) Assuming the Bank opens in late 1998, organizational expenses include,
among other expenditures, application fees, salaries and related
expenditures, legal and other professional costs, temporary rent and
utilities, costs for market analysis, pre-opening advertising, and certain
capitalized organizational costs to include software to support
operations, computer hardware and furniture fixtures and equipment.
A substantial portion of the proceeds of this Offering ($7,000,000)
assuming the minimum number of Units is sold will be used by the Company for the
purchase of 100% of the issued and outstanding capital stock of the Bank and to
repay the expenses of this Offering and the expenses incurred in the
organization of the Company and the Bank.
A portion of the proceeds of this Offering in excess of the above amounts
will be retained by the Company for the purpose of funding any required future
additions to the capital of the Bank. Since state banks are regulated with
respect to the ratio that their total assets may bear to their total capital, if
the Bank experiences greater growth than anticipated, it may require the
infusion of additional capital to support that growth. Management of the Company
anticipates that the proceeds of the Offering will be sufficient to support the
Bank's immediate capital needs and will seek, if necessary, long and short-term
debt financing to support any additional needs; however, management can give no
assurance that such financing, if needed, will be available or if available will
be on terms acceptable to management.
Gross proceeds from the Offering will be applied as follows:
<TABLE>
<CAPTION>
Minimum Proceeds Maximum Proceeds
Assuming Sale Assuming Sale of
700,000 Shares 1,500,000 Shares
---------------- ----------------
<S> <C> <C>
Purchase of capital stock of the Bank................. $6,000,000 $13,000,000
Organizational and Offering expenses of the
Company............................................... 400,000 400,000
Working capital and funds available for expansion of
banking and banking-related services.................. 600,000 1,600,000
---------- -----------
Proceeds.............................................. $7,000,000 $15,000,000
========== ===========
</TABLE>
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<PAGE> 17
DIVIDEND POLICY
As the Company and the Bank are both start-up operations, it will be the
policy of the Board of Directors of the Company to reinvest earnings for such
period of time as is necessary to ensure the successful operations of the
Company and of the Bank. There are no current plans to initiate payment of cash
dividends, and future dividend policy will depend on the Bank's earnings,
capital requirements, financial condition and other factors considered relevant
by the Board of Directors of the Company.
The Bank will be restricted in its ability to pay dividends under Florida
banking laws and by regulations of the Department. Pursuant to Section 658.37,
Florida Statutes, a state bank may not pay dividends from its capital. All
dividends must be paid out of current net profits then on hand plus retained net
profits of the preceding two years, after deducting bad debts, depreciation and
other worthless assets, and after making provision for reasonably anticipated
future losses on loans and other assets. Payments of dividends out of net
profits is further limited by Section 658.37, which prohibits a bank from
declaring a dividend on its shares of common stock until its surplus equals its
stated capital, unless there has been transferred to surplus not less than 20%
of a bank's net profits for the preceding year (in the case of an annual
dividend). Finally, a state bank may not declare a dividend which would cause
the capital accounts of a bank to fall below the minimum amount required by law,
regulation, order or any written agreement with the Department or any Federal
regulatory agency.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The Company is still in the development stage, and will remain in that
state until the Offering of the Company's Common Stock is complete. The
Organizers initially advanced $90,000 to the Company. The Company's obligation
to repay these advances to the Organizers have been extinguished in exchange for
the issuance of 900 shares of redeemable preferred stock from the Company at a
price of $100 per share. Through July 31, 1998, the Company has expended $35,665
for organizational costs including attorney fees, employee compensation and
filing fees. The remaining funds will be used to fund costs and expenses during
the Offering Period. Subscription funds during the Offering Period contemplated
herein will be placed in the Subscription Escrow Account and invested in direct
obligations of the United States Government, in short-term insured certificates
of deposits and/or money market Management trusts for short-term obligations of
the United States Government, with maturities not to exceed 90 days.
In September, 1998, the Company obtained a line of credit of $300,000 from
a financial institution at an interest rate of Prime minus 1%. The line is
guaranteed by the Company's Board of Directors. At _________, 1998, there was no
balance outstanding under this line of credit.
On September 3, 1998, the Company entered into a lease agreement with
NovaCare, Inc. to lease the Bank's temporary quarters until the permanent
quarters becomes available. The Company has given a good faith deposit in the
amount of $4,054.66.
Management of the Company believes that the proceeds of $7,000,000 from
the Offering will satisfy the cash requirements of the Company and the Bank for
their respective first years of operation. It is not anticipated that the
Company will find it necessary to raise additional funds to meet expenditures
required to operate the business of the Company and the Bank over the next 12
months. All anticipated material expenditures for such period have been
identified and provided for out of the proceeds of this Offering. See "USE OF
PROCEEDS."
BUSINESS OF THE COMPANY
General
The Company was incorporated under the laws of the State of Florida on
May 18, 1998 for the purpose of organizing the Bank and purchasing 100% of the
outstanding capital stock of the Bank. The Company has been organized as a
mechanism to enhance the Bank's ability to serve its future customers'
requirements for financial services. The holding company structure will also
provide flexibility for expansion of the Company's banking business through
acquisition of other financial institutions and provision of additional
banking-related services which the
15
<PAGE> 18
traditional commercial bank may not provide under present laws. Finally, banking
regulations require that the Bank maintain a minimum ratio of capital to assets.
In the event that the Bank's growth is such that this minimum ratio is not
maintained, the Company may borrow funds, subject to the capital adequacy
guidelines of the Federal Reserve, and contribute them to the capital of the
Bank and otherwise raise capital in a manner which is unavailable to the Bank
under existing banking regulations.
The Company has no present plans to acquire any operating subsidiaries
other than the Bank; however, the Company may make additional acquisitions in
the event that such acquisitions are deemed to be in the best interest of the
Company and its shareholders. Such acquisitions, if any, will be subject to
certain regulatory approvals and requirements. See " SUPERVISION AND
REGULATION."
PREMISES
The Bank's permanent headquarters will be located at the northwest corner
of the intersection of N. Westshore Boulevard and Spruce Street in a new 6-story
office building to be developed by Crescent Resources (a subsidiary of Duke
Power). The Bank will occupy approximately 8,000 square feet on the ground floor
(including two drive-up banking lanes as well as ATM access). The building is
scheduled for occupancy in September, 1999.
BUSINESS OF THE BANK
GENERAL
Bay Cities Bank (the "Bank") seeks to be the premier community-based
financial institution in its market area by providing exceptional personalized
bank products and traditional bank services to individuals, small to
medium-sized businesses, professionals and other local organizations in its
market area; and by providing a maximum return to shareholders.
The Bank will emphasize personal contacts by the officers, directors and
employees of the Bank. Loan participations will be arranged for customers whose
loan demands exceed the Bank's lending limits. Generally, customers will have
one account officer to serve all of their banking needs and will have access to
senior management when necessary. The Bank will provide a full range of
competitive banking services; however, the marketing emphasis will be more on
the way services are delivered, than on which services are provided. Management
of the Bank intends to focus its efforts on filling the void caused by the
dwindling service provided by larger banks.
Bay Cities Bank will focus and rely on its base of local directors,
stockholders, management and employees for business development, as other banks
in this market continue to merge, consolidate and grow outside the area.
Policies and procedures will be tailored to the local market rather than to the
regional and statewide markets of other financial institutions. Local directors
and management know the people in its market area and understand their
businesses. Management will actively promote the Bank within the market due
through their established reputations and banking relationships in the local
community. Customers will be derived from Bank directors, stockholders, their
friends, relatives and business associates and others within the community who
desire superior personalized banking services unavailable from the regional and
statewide financial institutions. The bank is committed to being locally owned
and managed.
The high turnover and more rigid style of large regional banks have
created segments of the marketplace have been created that are ready to change
their banking relationships. Additionally, growth in residential and commercial
activity in the market area and surrounding counties creates opportunities for
the Bank to establish new banking relationships.
Profitable banking relationships are those with high deposit balances,
infrequent transactions and low distribution requirements. Bay Cities Bank will
be well positioned to establish these relationships with commercial and consumer
customers through the active marketing efforts of the directors, management, and
employees of the Bank and the opportunities created by the growth of the market
area and recent mergers.
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<PAGE> 19
The Bank intends to concentrate its advertising message on the advantages
of local ownership and management, as well as, fiscal responsibility, personal
service and customer relations at the local level. Particular emphasis will be
placed on newspaper and radio advertising, and direct mail on a selective basis.
THE MARKET AREA
The Bank's primary market is the Tampa Bay Metropolitan Statistical Area
("Tampa Bay MSA") with a population of 2,240,000. The Tampa Bay MSA is comprised
of four counties:
1. HILLSBOROUGH COUNTY
Hillsborough County had a population of 918,800 as of 1996 per the Sales
and Marketing Management, Demographics USA 1997. Hillsborough County is
the business center for the region, has as its center Tampa International
Airport which boarded 13.0 million passengers in 1996 up from 10.6 million
in 1990.
2. PINELLAS COUNTY
Pinellas County, with population 884,000, is the most densely populated
county in the state, has 125 different municipalities, and was at one
time, primarily residential, retirement and tourist-oriented. Today, it
has five well-defined business centers and has become a popular relocation
and startup location for high-tech, software and computer service
companies. Pinellas County is home to 24 public companies.
3. PASCO COUNTY
Pasco County, formerly possessing a split personality...retired,
Republican and residential on the west side and agricultural, Democratic
and rural on the east side, has now unified into a residential-commuter
district feeding into Hillsborough and Pinellas county businesses. In
time, there will be business relocations and startups in Pasco. Two of the
top ten residential communities in Tampa Bay MSA are in the south Pasco
region. It is 23 miles from the West Shore Business District and
accessible by the Veterans Expressway, a new toll road which opened in
1996, and Interstate 75. Pasco County had a population of 315,100 at that
time.
4. HERNANDO COUNTY
Hernando County, to the north of Pasco, is 35 miles from the West Shore
Business District, has been agricultural and rural and is now enjoying a
residential-commuter boom. With a population of 122,300 in 1996, Hernando
County has seen a 173% increase since 1980.
According to the Tampa Tribune Market Guide - 1998, the Tampa Bay MSA is a
growth market, where year after year the population size is among the top 25
MSAs nationally. The Tampa Bay MSA ranks second in population size and total
number of households among Southeastern metropolitan areas. Only Atlanta has a
larger population. The Tampa Bay MSA has the largest population and the most
households in Florida, ahead of Miami, Ft. Lauderdale and Orlando. Tampa Bay
also ranks high in other vital statistics such as effective buying income and
retail activity, not only in Florida, but in the Southeast and the United
States. The following tables set forth the details on these demographic
statistics:
[Tables Follow This Page]
17
<PAGE> 20
TABLE I - TAMPA BAY RANKINGS 1996
<TABLE>
<CAPTION>
Tampa Bay
MSA National Southeast Florida
--------- -------- --------- -------
<S> <C> <C> <C> <C>
Population 2,240,000 22 2 1
Households 933,100 17 2 1
Effective Buying Inc. $36.3 billion 24 2 1
Total Retail Sales $24.6 billion 15 2 1
Food Store Sales $ 3.7 billion 20 2 1
Eating & Drinking $ $ 2.4 billion 18 2 1
General Merchandise $ 2.4 billion 26 2 1
Apparel & Accessories $ .8 billion 34 5 5
Furniture/Home Furnishing Appliances $ 1.3 billion 22 3 2
Building Materials & Hardware $ 1.1 billion 22 2 1
Drug Store Sales $ 1.0 billion 14 3 2
Automotive Dealer Sales $ 6.5 billion 16 3 2
</TABLE>
TABLE II - SOUTHEASTERN POPULOUS METROS - 1996
<TABLE>
<CAPTION>
POPULATION NATIONAL RANK
---------- -------------
<S> <C> <C>
1. Atlanta 3,582,200 9
2. Tampa Bay 2,240,200 22
3. Miami 2,100,200 24
4. Orlando 1,460,200 37
5. Fort Lauderdale 1,452,700 39
</TABLE>
Source: Sales and Marketing, Demographics USA 1997
TABLE III - SOUTHEASTERN HOUSING METROS - 1996
<TABLE>
HOUSEHOLDS NATIONAL RANK
---------- -------------
<S> <C> <C>
1. Atlanta 1,330,200 9
2. Tampa Bay 933,100 17
3. Miami 737,100 25
4. Fort Lauderdale 608,700 30
5. Orlando 551,500 37
</TABLE>
Source: Sales and Marketing, Demographics USA 1997
18
<PAGE> 21
The Bank will be located in the West Shore Business District of Tampa. The
West Shore Business District is the geographic and population center of the
Tampa Bay MSA and is adjacent to the Tampa International Airport. The West Shore
Business District has more than 4,000 businesses and 70,000 employees according
to the Economic and Market Update of the Florida Research Group dated June 1998.
It is located within a ten to forty mile drive of the Tampa Bay MSA's ten
largest residential communities. Approximately 9.3 million square feet of office
space, half of Hillsborough county's office space, is in the West Shore Business
District. According to the Update, the success of this business district is
based on its geographically central location, its close proximity to the
airport, the nearby executive and employee housing, extensive retail amenities
and its numerous nearby hotel facilities.
The Bank will extend loans throughout the Tampa Bay MSA, but the
concentration will be in Hillsborough and Pinellas counties. The businesses in
the MSA will be served by the Bank's courier service. The organizer's believe
that a business-oriented bank with a single office serving small and
intermediate-sized firms with loan needs of between $500,000 and $2.5 million
will fill a well-defined need in the area at this time.
COMPETITION
Competition among financial institutions in the Bank's primary market is
intense. As of December 31, 1997, there were 34 financial institutions in the
market with deposits of $8.5 billion. Deposits in the market increased $380
million from December 31, 1996 through December 31, 1997, at an annual rate of
4.5%. During the same time period, the independent banks in Hillsborough County
experienced an increase in deposits from $1.2 billion to $1.6 billion, an annual
rate of 33%, and an increase in overall market share from 14.8% to 18.4%.
Financial institutions primarily compete with one another for deposits. In
turn, a bank's deposit base directly affects such bank's loan activities and
general growth. Primary methods of competition include interest rates on
deposits and loans, service charges on deposit accounts and the availability of
unique financial services products. The Bank will be competing with financial
institutions which have much greater financial resources than the Bank, and
which may be able to offer more services and possibly better terms to their
customers. The Organizers, however, believe that the Bank will be able to
attract sufficient deposits to enable the Bank to compete effectively with other
area financial institutions.
The Bank will be in competition with existing area financial institutions
other than commercial banks and thrift institutions, including insurance
companies, consumer finance companies, brokerage houses, credit unions and other
business entities which target traditional banking markets. Due to the growth of
the Tampa area, it can be anticipated that additional competition will continue
from existing, as well, new entrants to the market.
The following table provide details of the history of Bank and Thrift
(S&L) deposits in Hillsborough County:
[Table to Follow This Page]
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<PAGE> 22
BANK AND S&L DEPOSITS - HILLSBOROUGH COUNTY
<TABLE>
<CAPTION>
HILLSBOROUGH COUNTY 1996 1997
# $Millions % # $Millions %
Large Holding Company Offices Deposits MktSh Offices Deposits MktSh
- --------------------- ------- --------- ----- ------- --------- -----
<S> <C> <C> <C> <C> <C> <C>
Fortune/AmSou (4) $ 101.6 1.3% (7) $ 204.5 2.4%
Barnett (36) 2,342.5 28.7% (35) 2,450.8 28.7%
CaliforniaFed
C&S/Sovereign
First Florida
First Union (18) 1,070.6 13.1% (18) 1,029.6 12.1%
Florida Federal
Ft.Bro/Colonial (8) 185.5 2.3% (8) 189.9 2.2%
Glendale Federal
Great Western
NationsBank (35) 1,694.9 20.8% (37) 1,634.0 19.2%
SouthTrust (8) 227.9 2.8% (8) 232.7 2.7%
SunTrust (23) 972.3 11.9% (23) 1,020.8 12.0%
Terr/VilRegions (4) 97.2 1.2% (4) 190.8 2.3%
TOTAL (136) $6,692.5 82.1% (140) $6,953.4 81.6%
INDEPENDENT BANKS
Bank of Tampa (5) $ 223.8 2.7% (5) $ 251.0 2.9%
Carteret/Hamilton (1) 125.0 1.5% (1) 140.6 1.6%
Central Bank (4) 134.5 1.7% (5) 134.6 1.6%
Manufacturers (1) 90.9 1.1% (1) 124.8 1.5%
Bay Financial (1) 102.2 1.5% (1) 124.2 1.5%
Sunshine State (5) 103.4 1.3% (5) 104.5 1.2%
Southern Exchange (2) 80.7 1.0% (2) 73.4 .9%
City First (3) 61.0 .8% (3) 69.5 .8%
University/Terrace (2) 56.2 .7% (3) 65.3 .8%
Northside (2) 44.8 .6% (2) 61.5 .7%
ColumbiaBank (5) 56.0 .7% (5) 56.6 .7%
Valrico State (1) 42.2 .5% (4) 55.2 .6%
Provident (3) 51.5 .5%
Southern Commerce (1) 46.5 .6% (1) 53.1 .6%
First Commercial (1) 37.5 .5% (1) 47.2 .6%
FNB Tampa (1) 45.5 .5%
GulfWest (2) 32.2 .4%
FNBCentFla (7) 21.1 .3%
Northern Trust (1) 17.3 .2%
First of America (2) 13.6 .1%
Anchor/Beneficial (1) 5.5 .0%
Partners (1) 31. .4%
TOTAL (34) $1,204.7 14.8% (57) $1,579.3 18.4%
ALL BANKS TOTAL $8,151.6 4.5% (199) $8,534.8 4.5%
</TABLE>
Source: Florida Bankers Association
20
<PAGE> 23
BOARD OF DIRECTORS AND BOARD COMMITTEES
The Bank believes that its board is composed of the highest quality,
knowledgeable and proven business and banking professionals. Initially there
will be 9 members on the Bank's board of directors. Additional high quality
directors may be added when and as deemed necessary. In order to fulfill their
responsibilities to the customers and shareholders of the Bank, it is
anticipated that the board of directors will meet on a monthly basis, or more
often as needed, to review the operations of the Bank and provide appropriate
direction to management.
It is anticipated that a more extensive oversight of particular aspects of
the Bank's operations will be conducted by committees of the board of directors.
These committees will consist of the Executive Committee, Executive Loan
Committee, Asset/Liability and Investment Committee, Audit Committee and
Compensation Committee.
The Executive Committee will be responsible for defining and implementing
the overall strategy and policies of the Bank. It will also be responsible for
monitoring the financial performance of the Bank. The committee will review and
recommend marketing plans, capital plans, major capital expenditures and bank
expansion plans.
The Executive Loan Committee will be responsible for ensuring the
soundness of the Bank's credit policy; conformance to lending policies and
compliance with applicable laws, rules and regulations. To fulfill these
responsibilities, the Executive Loan Committee will review the adequacy of the
credit policy on at least an annual basis, review all large loans and monitor
the performance of the loan portfolio on an ongoing basis.
The Asset/Liability and Investment Committee will be responsible for
ensuring the soundness of the Bank's investment policy and asset/liability
management policy; conformance to these policies and compliance with applicable
laws, rules and regulations. To fulfill these responsibilities, the committee
will review the adequacy of the investment and asset/liability management
policies on at least an annual basis. The committee will also monitor
performance of the investment portfolio, the Bank's liquidity position and the
interest rate sensitivity position.
The Audit Committee will consist solely of outside directors and will be
responsible for ensuring that an adequate audit program exists and that Bank
personnel are operating in conformance with all applicable laws, rules and
regulations. All auditors employed or engaged by the Bank will report directly
to the Audit Committee. The Audit Committee will recommend the selection of
auditors, review the audit program on at least an annual basis to ensure the
adequacy of its scope, and review all reports of auditors and examiners as well
as management's responses to such reports to ensure the effectiveness of
internal controls and the implementation of remedial action. The Audit committee
will also be responsible for the integrity of the internal loan review system.
The Compensation Committee will be responsible for ensuring that the
Bank's compensation policy is effectively meeting its objectives. Compensation
will be reviewed on an annual basis, or more frequently if necessary.
DEPOSITS
The Bank will offer a wide range of interest-bearing and
noninterest-bearing deposit accounts, including commercial and retail checking
accounts, money market accounts, individual retirement accounts, regular
interest-bearing statement savings accounts and certificates of deposit with
fixed and variable rates and a range of maturity date options. The sources of
deposits will be residents, businesses and employees of businesses within the
Bank's market area, obtained through the personal solicitation of the Bank's
officers and directors, direct mail solicitation and advertisements published in
the local media. The Bank intends to pay competitive interest rates on time and
savings deposits up to the maximum permitted by law or regulation. In addition,
the Bank will implement a service charge fee schedule competitive with other
financial institutions in the Bank's market area covering such matters as
maintenance fees on checking accounts, per item processing fees on checking
accounts and returned check charges.
LOAN PORTFOLIO
The Bank will provide for the financing needs of the community it serves
by offering a variety of loans. Commercial loans will include both
collateralized and uncollateralized loans for working capital (including
inventory and receivables), business expansion (including real estate
acquisitions and improvements), and purchase of equipment and machinery. The
Bank will originate a variety of residential real estate loans, including
conventional mortgages collateralized by first mortgages liens to enable
borrowers to purchase, refinance, construct upon or improve real
21
<PAGE> 24
property. Consumer loans will include collateralized and uncollateralized loans
for financing automobiles, boats, home improvements, and personal investments.
The Bank will primarily enter into lending arrangements for its portfolio loans
with individuals who are familiar to the Bank and are residents of the Bank's
PSA and surrounding area. It is anticipated that 20-25% of the loans will come
from outside the Banks market area.
The bank's commercial loans primarily will be underwritten in the Bank's
market area on the basis of the borrowers' ability to service such debt from
income. As a general practice, the Bank will take as collateral a security
interest in any available real estate, equipment, or other chattel. Such loans,
however, may also be made on an uncollateralized basis. Collateralized working
capital loans will be primarily collateralized by short term assets whereas term
loans will be primarily collateralized by long term assets.
Unlike residential mortgage loans, which generally are made on the basis
of the borrowers' ability to make repayment from his employment and other
income, and which are collateralized by real property whose value tends to be
easily ascertainable, commercial loans typically will be underwritten on the
basis of the borrower's ability to make repayment from the cash flow of the
business and generally will be collateralized by business assets, such as
accounts receivable, equipment and inventory.
A portion of the Bank's lending activities will consist of the origination
of single family residential mortgage loans collateralized by owner-occupied
property located in the Bank's market area and surrounding areas. The Bank will
also offer adjustable rate mortgages (ARMs) and will maintain these ARMs in its
portfolio or may sell the ARMs in the secondary market. The ability to retain
ARMs in the portfolio will allow the Bank the opportunity to originate loans to
borrowers who may not meet the underwriting criteria of strict secondary market
standards but are still quality credit risks.
Fixed and adjustable rate mortgage loans collateralized by single family
residential real estate generally will be generated in amounts of no more than
85% of appraised value. The Bank may, however, lend up to 95% of the value of
the property collateralizing the loan, but if such loans are required to be made
in excess of 85% of the value of the property, they must be insured by private
or federally guaranteed mortgage insurance. In the case of mortgage loans, the
Bank will require mortgagees title insurance to protect against defects in its
lien on the property which may collateralize the loan. The Bank in most cases
will require title, fire and extended casualty insurance to be obtained by the
borrower. Where required by applicable regulations, the bank will also require
flood insurance. The Bank will maintain its own errors and omissions insurance
policy to protect against loss in the event of failure of a mortgagor to pay
premiums on fire and other hazard insurance policies.
The Bank will originate residential construction to contractors to finance
the construction of single family dwellings, but most of the residential
construction loans will be made to individuals who intend to erect
owner-occupied housing on a purchased parcel of real estate. The Bank's
construction loans to individuals will typically range in size from $50,000 to
$200,000. Construction loans to contractors will be generally offered on the
same basis as other residential real estate loans except that a larger
percentage down payment will typically be required.
The Bank will finance the construction of individual, owner-occupied
houses on the basis of written underwriting and construction loan management
guidelines. Construction loans will be structured either to be converted to
permanent loans with the Bank at the end of the construction phase or to be paid
off upon receiving financing from another financial institution. Construction
loans on residential properties will be generally made in amounts up to 95%
(along with mortgage insurance) of appraised value. Construction loans to
contractors will generally have terms of up to 12 months. The maximum loan
amounts for construction loans will be based on the lessor of the current
appraised value or the purchase price.
Consumer loans made by the Bank will include the financing of automobiles,
recreation vehicles, boats, second mortgages, home improvement loans, home
equity lines of credit, personal (collateralized and uncollateralized) and
deposit account collateralized loans. Consumer loans will be made at fixed and
variable interest rates and may be made based on up to a 10-year amortization
schedule but which become due and payable in full and are generally refinanced
in 36 to 60 months. Consumer loans will be attractive to the Bank because they
typically have a shorter term and carry higher interest rates than that charged
on other types of loans.
The Bank recognizes that credit losses will be experienced and the risk of
loss will vary with, among other things, the type of loan being made, the
creditworthiness of the borrower over the term of the loan and, in the case of a
collateralized loan, the quality of the collateral for the loan as well as the
general economic conditions. Management
22
<PAGE> 25
will maintain an adequate allowance for loan losses based on, among other
things, industry standards, management's experience, the Bank's historical loan
loss experience, evaluation of economic conditions and regular reviews of
delinquencies and loan portfolio quality.
The Bank intends to follow a conservative lending policy, but one which
permits prudent risks to assist businesses and consumers in the market area. The
lending area is expected to be generally the immediate Hillsborough County and
the counties contiguous to Hillsborough County. It is not expected that loan
participations will be purchased from correspondent banks. However,
participations will likely be sold, particularly with regard to real estate
lending. Interest rates will vary depending on the cost of funds to the Bank,
the loan maturity, and the degree of risk. Whenever possible, interest rates
will be adjustable with fluctuations in the "prime" rate. The long-term target
loan-to-deposit ratio will be approximately seventy-five (75%) percent. This
ratio is expected to meet the credit needs of customers while allowing prudent
liquidity through the investment portfolio. The Directors believe that this
positive, community-oriented lending philosophy will be translated into a
sustainable volume of quality loans into the foreseeable future.
Loan quality will be enhanced through the staffing of the Bank with
experienced, well-trained lending officers capable of soliciting loan business.
The officers will also have the ability to recognize and appreciate the
importance of exercising care and good judgment in underwriting loans, thus
insuring the safety and profitability of the Bank.
INVESTMENTS
The Bank's primary objective will be to construct an investment portfolio
comprised of a mixture of investments which will earn an acceptable rate of
return while meeting the liquidity requirements of the Bank. This will be
accomplished by matching the maturity of assets with liabilities to the greatest
extent possible.
The Bank intends to invest primarily in U.S. obligations guaranteed as to
principal and interest. The Bank will also enter into federal funds transactions
with its principal correspondent banks and anticipates that it will be a net
seller of funds. All investments with a maturity in excess of one year will be
readily salable on the open market.
ASSET/LIABILITY MANAGEMENT
It will be the objective of the Bank to manage assets and liabilities to
provide a satisfactory, consistent level of profitability within the framework
of established cash management, loan, investment, borrowing and capital
policies. Designated Officers of the Bank will be responsible for monitoring
policies and procedures that are designed to ensure acceptable composition of
the asset-liability mix, stability and leverage of all sources of funds while
adhering to prudent banking practices. It is the overall philosophy of
management to support asset growth primarily through growth of core deposits,
which include deposits of all categories made by individuals, partnerships and
corporations. Management of the Bank will seek to invest the largest portion of
the Bank's assets in commercial, consumer and real estate loans. The Bank's
asset/liability mix will likely be monitored on a daily basis with a monthly
report reflecting interest-sensitive assets and interest-sensitive liabilities
being prepared and presented to the Bank's board of directors. The objective of
this policy is to control interest-sensitive assets and liabilities so as to
minimize the impact of substantial movements in interest rates on the Bank's
earnings.
CORRESPONDENT BANKING
The Bank intends to purchase certain services from correspondent bank.
Such services are available on a statewide or regional basis from commercial
banks, banker's banks, the Federal Reserve Bank of Atlanta and the Atlanta
Federal Home Loan Bank. The Bank will determine the availability of such
services and evaluate the quality and pricing of the services available and
based upon the above will select one or more providers for the services the Bank
will require. The Bank will then purchase from time to time, correspondent
services offered by such banks, including some of the following: check
collections, purchase or sale of Federal Funds, security safekeeping, investment
services, coin and currency supplies, overline and liquidity loan participations
and sales of loans to or participations with correspondent banks.
The Bank anticipates that it will sell loan participations to
correspondent banks with respect to loans which exceed the Bank's lending limit.
As compensation for services provided by a correspondent, the Bank may maintain
certain balances with such correspondents in non-interest bearing accounts, or
may elect to pay for such fees directly.
23
<PAGE> 26
DATA PROCESSING
The Bank plans to sign a data processing servicing agreement with an
outside service bureau. It is expected that this servicing agreement will
provide for the Bank to receive a full range of data processing services,
including an automated general ledger, deposit accounting, commercial, real
estate and installment loan processing, payroll, central information file and
ATM processing and investment portfolio accounting.
STAFFING
It is the goal of the Bank to maintain a competently trained staff of
local bankers. A primary complaint about large regional banks is the constant
turnover of personnel. This prevents building long-term personal relationships
with local customers. The Bank intends to employ competent individuals who are
already living in the community or who commit to live in the community on a
permanent basis.
Management recognizes that the success of the Bank is directly related to
the people it is able to attract and maintain as employees. The Bank recognizes
that such officers and employees deserve to share in that success. There will be
numerous opportunities for advancement resulting from the Bank's projected
growth, and personnel will be encouraged to enroll in various banking courses
and other seminars to improve their overall knowledge.
MONETARY POLICIES
The results of operations of the Bank will be affected by credit policies
of monetary authorities, particularly the Federal Reserve. The instruments of
monetary policy employed by the Federal Reserve include open market operations
in U.S. Government securities, changes in the discount rate on member bank
borrowings, changes in reserve requirements against member bank deposits and
limitations on interest rates which member banks may pay on time and savings
deposits. In view of changing conditions in the national economy and in the
money markets, as well as the effect of action by monetary and fiscal
authorities, including the Federal Reserve, no accurate prediction can be made
as to possible future changes in interest rates, deposit levels, loan demand or
the business and earnings of the Bank.
REGULATION AND SUPERVISION
GENERAL
As a one-bank holding company registered under the BHC Act, the Company
will be subject to regulation and supervision by the Federal Reserve. Under the
BHC Act, the Company's activities and those of its Bank subsidiary are limited
to banking, managing or controlling banks, furnishing services to or performing
services for its subsidiaries or engaging in any other activity that the Federal
Reserve determines to be so closely related to banking or managing or
controlling banks as to be a proper incident thereto. As a state-chartered
commercial bank, the Bank will be subject to extensive regulation by the Florida
Department of Banking and Finance ("Department") and the FDIC.
The Company and the Bank will be required to file reports with the Federal
Reserve, the Department and the FDIC concerning their activities and financial
condition, in addition to obtaining regulatory approvals prior to entering into
certain transactions such as mergers with or acquisitions of other financial
institutions. Periodic examinations are performed by the Federal Reserve, the
Department and the FDIC to monitor the Company's and the Bank's compliance with
the various regulatory requirements. The Bank's deposits will be insured up to
the applicable limits by the FDIC under the Bank Insurance Fund ("BIF"). The
Bank will be subject to regulation by the Federal Reserve and the Department
with respect to reserves required to be maintained against transaction deposit
accounts and certain other matters.
REGULATION OF THE COMPANY
General. The BHC Act prohibits the Company from acquiring direct or
indirect control of more than 5% of any class of outstanding voting stock or
acquiring substantially all of the assets of any bank or merging or
consolidating with another bank holding company without prior approval of the
Federal Reserve. The BHC Act also prohibits the Company from acquiring control
of any bank operating outside the State of Florida, unless such action is
specifically authorized by the statutes of the state where the bank to be
acquired is located. Additionally, the BHC Act prohibits
24
<PAGE> 27
the Company from engaging in or from acquiring ownership or control of more than
5% of the outstanding voting stock of any company engaged in a non-banking
business, unless such business is determined by the Federal Reserve to be so
closely related to banking or managing or controlling banks as to be properly
incident thereto. The BHC Act generally does not place territorial restrictions
on the activities of such non-banking related activities.
TRANSACTIONS BETWEEN THE COMPANY AND THE BANK. The Company's authority to
engage in transactions with related parties or "affiliates," or to make loans to
certain insiders, is limited by certain provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 ("FIRREA"). Specifically, Sections
23A and 23B of the Federal Reserve Act apply to all transactions by an
insured-state nonmember bank or a holding company with any affiliate. Sections
23A and 23B generally define an "affiliate" as any company that controls or is
under common control with an institution. Subsidiaries of a financial
institution, however, are generally exempted from the definition of "affiliate."
Section 23A limits the aggregate amount of transactions with any individual
affiliate to 10% of the capital and surplus of the Company and also limits the
aggregate amount of transactions with all affiliates to 20% of the Company's
capital and surplus. Certain transactions with affiliates, such as loans to
affiliates or guarantees, acceptances and letters of credit issued on behalf of
affiliates, are required to be collateralized by collateral in an amount and of
a type described in the statute. The purchase of low quality assets from
affiliates is generally prohibited. Section 23B provides that certain
transactions with affiliates, including loans and asset purchases, must be on
terms and under circumstances, including credit standards, that are
substantially the same or at least as favorable to the institution as those
prevailing at the time for comparable transactions with nonaffiliated companies.
In the absence of comparable transactions, such transactions may only occur
under terms and circumstances, including credit standards, that in good faith
would be offered to or would apply to nonaffiliated companies. The Company does
not expect these provisions will have any effect on its proposed operations.
SUPPORT OF SUBSIDIARY DEPOSITORY INSTITUTIONS. In accordance with Federal
Reserve policy, the Company is expected to act as a source of financial strength
and to commit resources to support the Bank. This support may be required at
times when the Company might not be inclined to provide such support. Such
support would include the infusion of additional capital into an under
capitalized bank subsidiary in situations where an additional investment in a
troubled bank might not ordinarily be made by a prudent investor. In addition,
any capital loans by a bank holding company to any of its subsidiary banks must
be subordinate in right of payment to deposits and to certain other indebtedness
of such subsidiary banks. In the event of bankruptcy, any commitment by a bank
holding company to a federal bank regulatory agency to maintain the capital of
its subsidiary bank will be assumed by the bankruptcy trustee and will be
entitled to a priority of payment.
Under the Federal Deposit Insurance Act ("FDIA") a subsidiary bank of a
bank holding company, can be held liable for any loss incurred by, or reasonably
expected to be incurred by the FDIC in connection with (i) the default of a
commonly controlled FDIC-insured depository institution or (ii) any assistance
provided by the FDIC to any commonly controlled FDIC insured depository
institution "in danger of default". "Default" is defined generally as the
appointment of a conservator or a receiver and "in danger of default" is defined
generally as the existence of certain conditions indicating that a default is
likely to occur in the absence of regulatory assistance.
CONTROL OF A BANK HOLDING COMPANY. FRB Regulation Y, adopted pursuant to
Section 225.41 of 12 U.S.C. Section 1817(j), requires persons acting directly or
indirectly or in concert with one or more persons to give the Board of Governors
of the Federal Reserve 60 days advanced written notice before acquiring control
of a bank holding company. Under the Regulation, control is defined as the
ownership or control with the power to vote 25 % or more of any class of voting
securities of the Holding Company. The Regulation also provides for a
presumption of control if a person owns, controls, or holds with the power to
vote 10 % or more (but less than 25 %) of any class of voting securities, and
if: (i) the Holding Company's securities are registered securities under Section
12 of the Securities and Exchange Act of 1934; or (ii) no other person owns a
greater percentage of that class of voting securities. It is not anticipated
that any purchaser of the securities offered herein, including any of the
Organizers, will acquire 10% of more of the Company's Common Stock.
LEGISLATION AND REGULATIONS OF THE BANK
GENERAL. From time to time, various bills are introduced in the United
States Congress with respect to the regulation of financial institutions. Recent
banking legislation, particularly the FIRREA and the Federal Deposit Insurance
Corporation Improvement Act of 1991 ("FDICIA"), has broadened the regulatory
powers of the federal bank
25
<PAGE> 28
regulatory agencies and restructured the nation's banking system. The following
is a brief discussion of certain portions of these laws and how they would
effect the Company or the Bank.
The FDICIA revised sections of the FDIA affecting bank regulation, deposit
insurance and provisions for funding of the BIF administered by the FDIC. The
FDICIA also revised bank regulatory structures embodied in several other federal
banking statutes, strengthened the bank regulators' authority to intervene in
cases of deterioration of a bank's capital level, placed limits on real estate
lending and imposes detailed audit requirements.
PROMPT AND CORRECTIVE ACTION. The FDICIA required the federal banking
regulatory agencies to set certain capital and other criteria which would define
the category under which a particular financial institution would be classified.
The FDICIA imposes progressively more restrictive constraints on operations,
management, and capital distributions depending on the category in which an
institution is classified. Pursuant to the FDICIA, undercapitalized institutions
must submit recapitalization plans to their respective federal banking
regulatory agencies, and a company controlling a failing institution must
guarantee such institution's compliance with its plan in order for the plan to
be accepted.
The FDIC's prompt and corrective action regulations define, among other
things, the relevant capital measures for the five capital categories. For
example, a bank is deemed to be "well-capitalized" if it has a total risk-based
capital ratio (total capital to risk-weighted assets) of 10% or greater, a Tier
1 risk-based capital ratio (Tier 1 capital to risk-weighted assets) of 6% or
greater, and a Tier 1 leverage capital ratio (Tier 1 capital to adjusted total
assets) of 5% or greater, and is not subject to a regulatory order, agreement or
directive to meet and maintain a specific capital level for any capital measure.
A bank is deemed to be "adequately capitalized" if it has a total risk-based
capital ratio of 8% or greater, and (generally) a Tier 1 leverage capital ratio
of 4% or greater, and the bank does not meet the definition of a
"well-capitalized" institution. A bank is deemed to be "critically
undercapitalized" if it has a ratio of tangible equity (as defined in the
regulations) to total assets that is equal to or less than 2%. In addition, the
FDIC is authorized effectively to downgrade a bank to a lower capital category
than the bank's capital ratios would otherwise indicate, based upon safety and
soundness considerations (such as when the bank has received a less than
satisfactory examination rating for any of the CAMELS rating categories other
than capital: i.e. Asset Quality, Management, Earnings or Liquidity). As a bank
drops to lower capital levels, the extent of action to be taken by the
appropriate regulator increases, restricting the types of transactions in which
the bank may engage. The new capital standards are designed to bolster and
protect the deposit insurance fund. Based upon its proposed capital, the Bank
would be considered to be well capitalized.
INSURANCE ON DEPOSIT ACCOUNTS. In response to the requirements of the
FDICIA, the FDIC established a risk-based assessment system for insured
depository institutions that takes into account the risks attributable to
different categories and concentrations of assets and liabilities. The FDIC
assigns a financial institution to one of three capital categories based on the
institution's financial information, as of the reporting period ending seven
months before the assessment period. These categories consist of well
capitalized, adequately capitalized or undercapitalized, and one of three
supervisory subcategories within each capital group. The supervisory subgroup to
which an institution is assigned is based on a supervisory evaluation provided
to the FDIC by the financial institution's primary regulator, in the Bank's case
the Department, and information which the FDIC determines to be relevant to the
institution's financial condition and the risk posed to the deposit insurance
funds. A financial institution's assessment rate depends on the capital category
and supervisory category to which it is assigned. There are nine assessment risk
classifications (i.e., combinations of capital groups and supervisory subgroups)
to which different assessment rates are applied. BIF assessment rates range from
0 basis points on deposits for a financial institution in the highest category
(i.e.. well-capitalized and financially sound with only a few minor weaknesses)
to 31 basis points on deposits for an institution in the lowest category (i.e.,
undercapitalized and posing a substantial probability of loss to the BIF, unless
effective corrective action is taken). The Bank does not expect any assessment
for its first year of operation.
STANDARDS FOR SAFETY AND SOUNDNESS. The FDICIA requires each federal
banking agency to prescribe for all insured depository institutions and their
holding companies standards relating to internal controls, information systems
and audit systems, loan documentation, credit underwriting, interest rate risk
exposure, asset growth, compensation, fees and benefits and such other
operational and managerial standards as the agency deems appropriate. In
addition, the federal banking regulatory agencies are required to prescribe by
regulation standards specifying: (i) maximum classified assets to capital
ratios; (ii) minimum earnings sufficient to absorb losses without impairing
capital; (iii) to the extent feasible, a minimum ratio of market value to book
value for publicly traded shares of depository institutions or the depository
institution holding companies; and (iv) such other standards relating to asset
quality, earnings and valuation
26
<PAGE> 29
as the agency deems appropriate. Finally, each federal banking agency is
required to prescribe standards for employment contracts and other compensation
arrangements of executive officers, employees, directors and principal
shareholders of insured depository institutions that would prohibit compensation
and benefits and other arrangements that are excessive or that could lead to a
material financial loss for the institution. If an insured depository
institution or its holding company fails to meet any of its standards described
above, it will be required to submit to the appropriate federal banking agency a
plan specifying the steps that will be taken to cure the deficiency. If an
institution fails to submit an acceptable plan or fails to implement the plan,
the appropriate federal banking agency will require the institution or holding
company, to correct the deficiency and until corrected, may impose restrictions
on the institution or the holding company including any of the restrictions
applicable under the prompt corrective action provisions of the FDICIA.
The FDICIA also requires each appropriate federal banking agency to adopt
uniform regulations prescribing standards for extensions of credit secured by
real estate or made for the purpose of financing the construction of
improvements on real estate. In prescribing these standards, the banking
agencies must consider the risk posed to the deposit insurance funds by real
estate loans, the need for safe and sound operation of insured depository
institutions and the availability of credit.
CAPITAL REQUIREMENTS. The Federal Reserve and the FDIC have adopted
capital regulations which establishes a Tier 1 core capital definition and a
minimum 3% leverage capital ratio requirement for the most highly-rated banks
and holding companies (i.e., those banks and holding companies with a composite
CAMELS rating of 1 under the Uniform Financial Institutions Rating System
established by the Federal Financial Institutions Examination Council) that are
not anticipating or experiencing significant growth. All other state nonmember
banks are required to meet a minimum leverage ratio that is at least 100 to 200
basis points above 3%. A holding company or bank that is not in the
highest-rated category or that is anticipating or experiencing significant
growth will have to meet a minimum leverage ratio of at least 4%. The minimum
capital with which the Bank will be permitted to open is $6 million.
Under the Federal Reserve's and the FDIC's risk-based regulations, a
holding company or bank must classify its assets and certain off-balance sheet
activities into categories and maintain specified levels of capital for each
category. The least capital is required for the category deemed by the Federal
Reserve and the FDIC to have the least risk, and the most capital is required
for the category deemed by the Federal Reserve and the FDIC to have the greatest
risk. The regulations require a holding company or bank to have a total risk
based capital ratio of 8% and a Tier 1 risk based capital ratio of 4%. Under the
statement of policy, certain assets are required to be deducted from risk-based
capital. Such assets include intangible assets, unconsolidated banking and
finance subsidiaries, investments in securities subsidiaries, ineligible equity
investments and reciprocal holding of capital instruments with other banks. In
addition, the Federal Reserve or the FDIC may consider deducting other assets on
a case-by-case basis or investments in other subsidiaries on a case-by-case
basis or based on the general characteristics or functional nature of the
subsidiaries.
LOANS TO ONE BORROWER. Florida law allows a state bank to extend credit
to any one borrower in an amount up to 25% of its capital accounts, which are
defined as unimpaired capital, surplus and undivided profits, provided that the
unsecured portion may not exceed 15% of the capital accounts of the bank. The
law permits exemptions for loans collateralized by accounts maintained with the
Bank and for loans guaranteed by the Small Business Administration, the Federal
Housing Administration and the Veterans Administration. The Bank will be subject
to these limits.
PAYMENT OF DIVIDENDS. While not the only source of income, the primary
source of income to the Company will be dividends from the Bank. A Florida
chartered commercial bank may not pay cash dividends that would cause the bank's
capital to fall below the minimum amount required by federal or Florida law.
Otherwise, a commercial bank may pay a dividend out of the total of current net
profits plus retained net profits of the preceding two years to the extent it
deems expedient, except as described below. Twenty percent of the net profits in
the preceding two year period may not be paid in dividends, but must be retained
to increase capital surplus until such surplus equals the amount of common and
preferred stock issued and outstanding. In addition, no bank may pay a dividend
at any time that net income in the current year when combined with retained net
income from the preceding two years produces a loss. The ability of the Bank to
pay dividends to the Company will depend in part on the FDIC capital
requirements in effect at such time and the ability of the Bank to comply with
such requirements.
BROKERED DEPOSITS. In accordance with the FDICIA, the FDIC has
implemented restrictions on the acceptance of brokered deposits. In general, an
"undercapitalized" institution may not accept, renew or roll over any brokered
deposits. "Adequately capitalized" institutions may request a waiver from the
FDIC to do so, while "well-capitalized"
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<PAGE> 30
institutions may accept, renew or roll over such deposits without restriction.
The rule requires registration of deposit brokers and imposes certain
recordkeeping requirements. Institutions that are not "well-capitalized" (even
if meeting minimum capital requirements) are subject to limits on rates of
interest they may pay on brokered and other deposits. The Bank does not expect
to acquire any brokered deposits.
LIQUIDITY. A state-chartered commercial bank is required under Florida
law to maintain a liquidity reserve of at least 15% of its total transaction
accounts and 8% of its total nontransaction accounts subject to certain
restrictions. This reserve may consist of cash-on-hand, demand deposits due from
correspondent banks, and other investments and short-term marketable securities.
The Bank will be subject to these requirements.
COMMUNITY REINVESTMENT. Under the Community Reinvestment Act ("CRA"), as
implemented by Federal Reserve and FDIC regulations, holding companies and state
nonmember banks have a continuing and affirmative obligation consistent with
their safe and sound operation to help meet the credit needs of their entire
community, including low- and moderate-income neighborhoods. The CRA does not
establish specific lending requirements or programs for financial institutions
nor does it limit an institution's discretion to develop the types of products
and services that it believes are best suited to its particular community,
consistent with the CRA. The CRA requires the Federal Reserve and the FDIC, in
connection with their examination of holding companies or state nonmember banks,
to assess the Company's record of meeting the credit needs of their communities
and to take such record into account in its evaluation of certain applications
by such institution. The FIRREA amended the CRA to require public disclosure of
an institution's CRA rating and to require that the Federal Reserve and the FDIC
provide a written evaluation of an institution's CRA performance utilizing a
four-tiered descriptive rating system in lieu of the then existing five-tiered
numerical rating system. The Company and the Bank will be subject to these
regulations.
DEPOSIT INSURANCE FUNDS ACT OF 1996. On September 30, 1996, Congress
passed and the President signed in to law the Deposit Insurance Funds Act of
1996 ("DIFA"). Among other things, the DIFA, and rules promulgated thereunder by
the FDIC, provide for banks and thrifts to share the annual interest expense for
the Finance Corp. Bonds which were issued in the late 1980s to help pay the
costs of the savings and loan industry restructuring. The approximate annual
interest expense is $780 million of which BIF insured banks are expected to pay
approximately $322 million or 41%, while SAIF insured thrifts will pay
approximately $458 million or 59% of the interest expense. It is estimated that
the annual assessment for BIF insured institutions will be approximately 1.2
cents per $100 of deposits, while SAIF insured institutions will pay 6.5 cents
per $100 of deposits. These payments are to begin in 1997 and run through 1999.
Beginning in the year 2000 and continuing through the year 2017, banks and
thrifts will each pay 2.43 cents per $100 of deposits. These assessments will be
in addition to any regular deposit insurance assessments imposed by the FDIC
under FDICIA. See REGULATION AND SUPERVISION-Insurance on Deposit Accounts.
INTERSTATE BANKING. Under the Riegle-Neal Interstate Banking and
Branching Efficiency Act of 1994, existing restrictions on interstate
acquisitions of banks by bank holding companies were repealed on September 29,
1995, such that the Company and any other bank holding company would be able to
acquire any Florida-based bank, subject to certain deposit percentage and other
restrictions. The legislation also provides that, unless an individual state
elects beforehand either (i) to accelerate the effective date or (ii) to
prohibit out-of-state banks from operating interstate branches within its
territory, on or after June 1, 1997, adequately capitalized and managed bank
holding companies will be able to consolidate. De novo branching by an
out-of-state bank would be permitted only if it is expressly permitted by the
laws of the host state. The authority of a bank to establish and operate
branches within a state will continue to be subject to applicable state
branching laws. Florida has adopted legislation which will permit interstate
acquisitions and interstate branching effective June 1, 1997. Florida law
prohibits de novo branching by out of state banks.
DEPARTMENT ASSESSMENT. State-chartered commercial banks are required by
Department regulation to pay assessments to the Department to fund the
operations of the Department. The general assessment, to be paid semiannually,
is computed upon a bank's total assets, including consolidated subsidiaries, as
reported in the bank's latest quarterly call report. The Bank will be required
to pay such assessments semi-annually.
THE FEDERAL RESERVE SYSTEM
The Federal Reserve regulations require banks to maintain non
interest-earning reserves against their transaction accounts (primarily NOW and
regular checking accounts). The Federal Reserve regulations generally require
that reserves of 3% must be maintained against aggregate transaction accounts of
$49.3 million or less (subject to adjustment by the Federal Reserve) plus 10%
(subject to adjustment by the Federal Reserve between 8% and 14%)
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<PAGE> 31
against that portion of total transaction accounts in excess of $49.3 million.
The first $4.4 million of otherwise reservable balances (subject to adjustments
by the Federal Reserve) are exempted from the reserve requirements. The balances
maintained to meet the reserve requirements imposed by the Federal Reserve may
be used to satisfy liquidity requirements. Because required reserves must be
maintained in the form of either vault cash, a noninterest-bearing account at a
Federal Reserve Bank or a pass-through account as defined by the Federal
Reserve, interest-earning assets of the Bank are reduced. The Company and the
Bank will be subject to these requirements.
FEDERAL SECURITIES LAWS
The Company, in connection with this Offering, filed with the SEC a
registration statement under the Securities Act for the registration of the
Company's Common Stock. The registration under the Securities Act of shares of
the Common Stock issued in this Offering does not cover the resale of such
Shares. Shares of the Common Stock purchased by persons who are not affiliates
of the Company may be resold without further registration. Shares purchased by
an affiliate of the Company will be subject to the resale restrictions of Rule
144 under the Securities Act. If the Company meets the current public
information requirements of Rule 144 under the Securities Act, each affiliate of
the Company who complies with the other conditions of Rule 144 (including the
holding period and those that require the affiliate's sale to be aggregated with
those of certain other persons) may be able to sell in the public market,
without registration, a number of shares not to exceed, in any three-month
period, the greater of (i) 1% of the outstanding Shares of the Company, or (ii)
the average weekly volume of trading in such Shares during the preceding four
calendar weeks. Provision may be made in the future by the Company to permit
affiliates to have their Shares registered for sale under the Securities Act
under certain circumstances.
The scope of regulation, supervision and permissible activities of the
Company and the Bank is subject to change by future federal and state
legislation.
ORGANIZERS AND PRINCIPAL SHAREHOLDERS
The following persons are Organizers of both the Company and Bank: John C.
Bierley, Monroe E. Berkman, Troy A. Brown, Jr., Frank G. Cisneros, Lawrence H.
Dimmitt, III, Timothy A. McGuire, Eric M. Newman, Chris Peifer, and A. Bronson
Thayer. The Organizers, as a group, intend to subscribe for 305,000 Units in the
Offering which will equal 43.57% of the 700,000 minimum Units required to be
sold in order to release funds from the Subscription Escrow Agreement. In
addition to the subscriptions committed to by the Organizers, the Organizers
have indicated that they may be willing to subscribe for up to an additional 10%
of the Units sold in the Offering. In any event, total purchases by the
Organizers will not exceed 335,500 Units in the aggregate, which would equal
47.93% of the 700,000 minimum Units required to be sold in order to release
funds from the Subscription Escrow Account.
Mr. Timothy A. McGuire will be granted, at no cost to him, incentive stock
options to purchase a minimum of 34,444 shares of the Company's common stock.
Mr. McGuire may also be granted additional options under the Incentive Plans.
All such options will have a minimum exercise price of $10.00 per share,
exercisable at any time after the vesting period, for ten years from the date of
grant. See "MANAGEMENT - Executive Compensation."
The Organizers initially advanced $90,000 to the Company. The Company's
obligation to repay these advances to the Organizers have been extinguished in
exchange for the issuance of preferred stock by the Company. The preferred stock
is redeemable for the purchase price at any time after the release of funds by
the escrow agent and will not mandate the payment of any dividend but will have
a distribution preference above common stock in the event of a dissolution of
the Company. After the redemption period, the preferred stock would pay a
dividend at the sole discretion of the Company.
Pre-opening and organizing expenses in excess of $90,000 will be funded
through a line of credit that has been extended to the Company by the
Independent Banker's Bank on terms and conditions as follows:
<TABLE>
<S> <C>
Loan Amount: ...................... Up to $300,000
Terms: ........................... On demand, interest monthly, principal
due at maturity at one year.
Rate:.............................. Wall Street Journal prime minus 1%, floating
Fee:............................... All out-of-pocket expenses
Guarantors:........................ Organizing Directors at 125% of pro rata interest
</TABLE>
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<PAGE> 32
Each of the Organizers intend to purchase the number of Units set forth in
the following Table. The table also specifies the percentage of Common Stock to
be owned by the Organizers after completion of the Offering Period including the
shares to be acquired by exercise of warrants and options.
<TABLE>
<CAPTION>
Minimum
Number of
Number of Beneficial Percent of Percent of
Name of Beneficial Owner Shares(1) Shares(2) Minimum(3) Maximum(4)
- ------------------------ --------- ---------- ----------- ----------
<S> <C> <C> <C> <C>
Monroe E. Berkman 50,000 107,694 14.21% 6.91%
John C. Bierley 40,000 87,694 11.73% 5.67%
Troy A. Brown, Jr. 30,000 67,694 9.18% 4.40%
Frank G. Cisneros 50,000 107,694 14.21% 6.91%
Lawrence H. Dimmitt, III 30,000 67,694 9.18% 4.40%
Timothy A. McGuire 10,000 54,444 7.31% 3.53%
Eric M. Newman 25,000 57,694 7.87% 3.76%
Chris Peifer 20,000 47,694 6.55% 3.12%
A. Bronson Thayer 50,000 107,694 14.21% 6.91%
-------- --------- ----- -----
TOTAL(5) 305,000 705,996 64.12%(5) 37.14%(6)
======== ========= ===== =====
</TABLE>
- -------------------
(1) Number of Shares to be purchased in the Offering.
(2) Includes shares purchased, as well as Warrants for the Shares to be
issued in connection with the proposed purchase, as well as the proposed
options pursuant to the Directors' Stock Option Plan and the Incentive
Stock Option Plan.
(3) Individual minimum percentages based upon 700,000 Shares outstanding, plus
individual Warrants for the Shares to be issued in connection with the
proposed purchase, as well as individual proposed options pursuant to the
Directors' Stock Option Plan and the Incentive Stock Option Plan.
(4) Individual maximum percentages based upon 1,500,000 Shares outstanding,
plus individual Warrants for the Shares to be issued in connection with
the proposed purchase, as well as individual proposed options pursuant to
the Directors' Stock Option Plan and the Incentive Stock Option Plan.
(5) Total minimum percentage based upon 700,000 Shares outstanding, plus all
Warrants to be acquired by Organizers and all Shares under the proposed
Directors' Stock Option Plan and the Incentive Stock Option Plan. No
assurances can be given that any Warrants will be exercised, and
therefore, that any of the 700,000 Shares will ever be issued.
(6) Total maximum percentage based upon 1,500,000 Shares outstanding, plus all
Warrants to be acquired by Organizers and all Shares under the proposed
Directors' Stock Option Plan and the Incentive Stock Option Plan. No
assurances can be given that any Warrants will be exercised, and
therefore, that any of the 1,500,000 Shares will ever be issued.
Each of the Organizers will acquire their Units during the Offering Period
and, therefore, will acquire both Common Stock and Warrants exercisable in
accordance with the terms set forth herein. While there can be no assurance that
the Organizers will exercise their Warrant rights, it can be assumed that most
or all will exercise such rights and will therefore acquire additional Common
Stock during the 36-month period following the Effective Date of registration.
See, "RISK FACTORS, Possible Dilution Resulting From Warrants."
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<PAGE> 33
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY AND THE BANK
The proposed directors and executive officers for the Company and the Bank
are as follows:
<TABLE>
<CAPTION>
Position with
Name Company Position with Bank
- ---- --------------- ------------------
<S> <C> <C>
Monroe E. Berkman Director Director
John E. Bierley Director Director
Troy A. Brown, Jr. Director Director
Frank G. Cisneros Director Director
Lawrence H. Dimmitt, III Director Director
Timothy A. McGuire President President and CEO
Eric M. Newman Director Director
Chris Peifer Director Director
A. Bronson Thayer Chairman and CEO Chairman
</TABLE>
COMPANY. Each of the above persons has been a director of the Company
or a proposed director of the Bank since July 1, 1998. The initial Board of
Directors of the Company consists of nine directors. The directors will be
divided into three classes, designated Class I, Class II and Class III. Each
class will consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. The term of the
Company's initial directors will expire at the first meeting of shareholders at
which directors are elected. It is expected that the Company will hold an
organizational meeting of the shareholders shortly after the Bank commences
operations at which time the shareholders will be asked to elect Directors.
Following the subsequent election of the Company's directors, the term of the
Company's Class I directors will expire at the Company's next annual meeting of
shareholders; the term of the Company's Class II directors will expire at the
Company's second annual meeting of shareholders; and the term of the Company's
Class III directors will expire at the Company's third annual meeting of
shareholders. At each annual meeting of shareholders, successors to the class of
directors whose term expires at the annual meeting will be elected for a
three-year term. If the number of directors is changed, an increase or decrease
will be apportioned among the classes so as to maintain the number of directors
in each class as nearly equal as possible, and any additional director of any
class elected to fill a vacancy resulting from an increase in such class will
hold office for a term that will coincide with the remaining term of that class,
but in no event will a decrease in the number of directors shorten the term of
any incumbent director. Any director elected to fill a vacancy not resulting in
an increase in the number of directors will have the same remaining term as that
of his predecessor. Except in the case of removal from office, any vacancy on
the Board of Directors will be filled by a majority vote of the remaining
directors then in office. The effect of the classified Board of Directors is to
make it more difficult for a person, entity or group to effect a change in
control of the Company through the acquisition of a large block of the Company's
voting stock.
Any director may be removed, with or without cause, at any regular or
special meeting of shareholders called for that purpose, and the position filled
by another person nominated and elected for that purpose by the affirmative vote
of the holders of at least 66% of the outstanding shares of the Company's Common
Stock. The Company's officers are appointed by the Board of Directors and hold
office at the will of the Board.
BANK. Each of the Bank's proposed directors will, upon approval of the
Department, serve until the Bank's first annual shareholders meeting, which
meeting will be held shortly after the Bank commences operations. It is
anticipated that each interim director will be nominated to serve as director of
the Bank at that meeting. After the first shareholders meeting, directors of the
Bank will serve for a term of one year and will be elected each year at the
Bank's annual meeting. The Bank's officers will be appointed by its Board of
Directors and will hold office at the will of the Board.
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<PAGE> 34
INITIAL DIRECTORS AND OFFICERS. The following is a brief description of
the business, civic and educational experience of the initial Directors and
Officers:
MONROE E. BERKMAN, AGE 58: Mr. Berkman has been with The Associated Group,
Inc. and its predecessor, Associated Communications Corporation, Inc., for
nearly 20 years and currently holds the title of Vice President.
Additionally, he serves as President of W. SOL Tampa Bay, Inc. and the
Monroe E. & Suzette M. Berkman Foundation..
Mr. Berkman is a graduate of the University of Pennsylvania. He currently
serves as a Trustee for Berkeley Preparatory School and The Tampa Museum,
as well as being a member of the Board of Directors of The Tampa Marine
Institute. Mr. Berkman has been a resident of Hillsborough County, Florida
since 1973.
JOHN C. BIERLEY, AGE 61: Mr. Bierley has been practicing law for over 30
years. He is a founding partner in the firm of Smith, Clark, Delesie,
Bierley, Mueller & Kadyk, specializing in international law. Mr. Bierley
received his B.A. and J.D. degrees from the University of Florida. He is
admitted to practice by The Florida Bar and the United States Supreme
Court.
Mr. Bierley was a former director of Gulf Bay Bank of Florida and
SouthTrust Bank of West Florida. He currently serves as Chairman, Tampa
Bay Area Committee on Foreign Relations, and is a director of Cayman
National Bank, Ltd., Inter-American Bar Association and the University of
Florida Foundation. Mr. Bierley has been a resident of Hillsborough
County, Florida since 1963.
TROY A. BROWN, JR., AGE 64: Mr. Brown is President of RayBro/CED. Prior to
that position, Mr. Brown served as President and Director of RayBro
Electric Supplies, Inc.
Mr. Brown is a graduate of Harvard College and received his J.D. degree
from the University of North Carolina Law School. He is currently a member
of the Florida Bar Association. He has been a past director of First
Florida Bank, First Florida Banks, Inc., Exchange Bank of Tampa, Exchange
Bank of Temple Terrace, Smally Transportation Co., Greater Tampa Chamber
of Commerce and the National Association of Electrical Distributing. Mr.
Brown is a lifetime resident of Hillsborough County, Florida.
FRANK G. CISNEROS, AGE 56: Mr. Cisneros is President and Chief Executive
Officer of Marman USA, Inc. He also currently serves as President of
Westshore Holdings, Inc. Prior to these positions, Mr. Cisneros served as
Chairman of the Board of Micro-Flo Co., Inc.
Mr. Cisneros attended the University of Villanova, Havana, Cuba, and is a
graduate of the University of Tampa. He was a former director of the Gulf
Bay Bank of Tampa and SouthTrust Bank of West Florida, and served as the
director of the Society of International Business Fellows. He has also
served on the Board of Governors of the Greater Tampa Chamber of Commerce,
as a Board member of the United Way of Tampa, the American Red Cross, and
the Jesuit High School Foundation. Mr. Cisneros currently serves as
Trustee for the Academy of the Holy Names Foundation, University of Tampa,
Museum of Science and Industries (MOSI), the Henry B. Plant Museum, and is
King XVII of the Krewe of the Knights of Saint Yago. Mr. Cisneros has been
a resident of Hillsborough County, Florida since 1961.
LAWRENCE H. DIMMITT, III, AGE 51: The Dimmitt family has been in the
automobile dealership business in Clearwater, Florida, for over 75 years.
Mr. Dimmitt has been involved as owner and operator of Dimmitt Chevrolet
for over 25 years. He received his undergraduate degree from The
University of the South and has attended graduate school at Emory
University.
Mr. Dimmitt serves on the Chevrolet National Dealer Council and has served
as Past President of the Clearwater Auto Dealer's Association. He is a
past director of the Bank of Clearwater and First Florida Bank of
Clearwater. Mr. Dimmitt is a lifetime resident of Pinellas County,
Florida.
32
<PAGE> 35
TIMOTHY A. MCGUIRE, AGE 49: Mr. McGuire has 25 years of broad-based
commercial banking and bank management experience. From 1973 through 1981,
he held various positions with Indiana National Bank, including Vice
President and European Representative, London, England. Subsequently, Mr.
McGuire joined Barnett Bank where he held various management positions
throughout the Barnett system, including Vice President - Commercial
Lending (Tampa), Vice President - U.S. Banking (Jacksonville), Senior Vice
President & Manager - Commercial Lending (Jacksonville), Senior Vice
President & Credit Manager (Atlanta, GA), Executive Vice President &
Senior Loan Officer and Executive Vice President & Senior Credit Officer
(Atlanta, GA). Most recently, Mr. McGuire participated in the successful
establishment of First of America Bank as a commercial bank in West
Central Florida, and served as the Senior Vice President and Senior Loan
Officer, until this entity was acquired by South Trust.
Mr. McGuire received his Bachelor of Arts degree from Purdue University
and his Masters of Science in Management from the Krammert Graduate
School, Purdue University. Mr. McGuire has been a resident of Hillsborough
County, Florida since 1994.
ERIC M. NEWMAN, AGE 50: Mr. Newman is President of J.C. Newman Cigar
Company and has been with the company for over 25 years. Mr. Newman
actively serves in the community as President, Rotary Club of Tampa, Board
of Trustees, Congregation Schaarai Zedek, Board of Directors, Merchants
Association of Florida, Board of Directors, University Club of Tampa and
Board of Directors, Cigar Association of America. Mr. Newman was also
selected as Community Hero to carry 1996 Olympic torch.
Mr. Newman received his Bachelor of Arts degree from the University of the
South, and his M.B.A. degree from Emory University. Mr. Newman also has
business interest in the Luis Martinez Cigar Company and SERCO Company.
Mr. Newman has been a resident of Hillsborough County, Florida since 1954.
CHRIS PEIFER, AGE 50: Mr. Peifer is President of Tice Financial Services,
Tampa, Florida and has held that position since 1987. Mr. Peifer was also
a director of the Commercial Bank of Georgia from 1987 until 1995.
Mr. Peifer received his Bachelor of Arts degree from Denison University in
1970 and his Masters in Business Administration from Northwestern
University in 1972. Mr. Peifer has been a resident of Hillsborough County,
Florida since 1987.
A. BRONSON THAYER, AGE 58: Mr. Thayer is Managing director of The
Investment Counsel Company. Prior to that position, Mr. Thayer was
Chairman and Chief Executive Officer of First Florida Banks, Inc. He has
also served as Executive Vice President and Chief Financial Officer of
Lykes Bros., Inc. and as Vice President of Dominick & Dominick, Inc.
Mr. Thayer is a graduate of Harvard College and received his MBA from New
York University. He currently serves as a director of Lykes Bros., Inc.
Mr. Thayer has also served on the boards of the Jacksonville Branch of the
Federal Reserve Bank of Atlanta, LTV Corp., American Ship Building and
Enron Corporation. Mr. Thayer has been a resident of Hillsborough County,
Florida since 1972.
EXECUTIVE COMPENSATION
The Organizers entered into an employment agreement with Timothy A.
McGuire in September of 1998, to assist the Organizers with the formation of the
Company and the Bank. Under the terms of the Agreement, Timothy A. McGuire will
serve as a Director, President of the Company and is being paid a salary of
$6,667 per month, plus a mileage allowance of $0.315 per mile for business use
during the Bank's organizational phase. The understanding between the Organizers
and Mr. McGuire is that Mr. McGuire will be employed by the Company as its
President, and by the Bank as its President and Chief Executive Officer at an
initial annual base salary of $120,000. The Agreement which initially is for a
term of one year, also contains a commitment to grant, at no cost to him, an
option to purchase a minimum of 34,444 Shares of Company Common Stock at $10.00
per Share. Such option would vest at the rate of 20% per year over five years,
would expire 10 years from the grant date and would be subject to the terms of a
qualified
33
<PAGE> 36
stock option plan adopted by the Company's Board of Directors and approved by
its shareholders. Mr. McGuire will participate in such other benefit plans which
the Bank makes available generally to all employees. The Bank may terminate Mr.
McGuire for any reason upon majority vote of the Board of Directors. If,
however, the termination is without cause, Mr. McGuire will be entitled to
severance pay in an amount not to exceed the remainder due on his contract plus
any incentive compensation which he may have been entitled to. The Board of
Directors must review Mr. McGuire's performance annually, and determine whether
to extend the Agreement for a one-year period. In the event of Mr. McGuire's
termination for any reason, Mr. McGuire agrees not to become employed with any
business enterprise who competes or intends to compete, directly or indirectly,
with any office of the Company located in Hillsborough County for a period of 12
months following such termination.
TRANSACTIONS WITH AFFILIATES
Mr. Timothy A. McGuire is the only Organizer or proposed director of the
Company that has received any cash compensation for services rendered on behalf
of the Company. See "MANAGEMENT - Executive Compensation." Once the Bank opens
for business, it is anticipated that it will extend loans to the Bank's and/or
the Company's Directors, their associates or members of the immediate families
of the Directors of the Bank or the Company. Such loans will be made on
substantially the same terms and conditions, including interest rates,
collateral and credit underwriting procedures as those prevailing at the time
for comparable transactions by the Bank with other similarly qualified persons.
STOCK OPTION PLANS
INCENTIVE STOCK OPTION PLAN. The Company's Board of Directors has adopted
an Incentive Stock Option Plan ("Plan"), subject to shareholder approval, for
employees who are contributing significantly to the management or operation of
the business of the Company or its subsidiaries as determined by the committee
administering the Plan. The Plan is contingent upon approval by the Company's
shareholders. The Plan provides for the grant of options at the discretion of a
committee designated by the Board of Directors to administer the Plan. No person
may serve as a member of the committee who is then eligible for a grant of
options under the Plan or has been so eligible for a period of one year prior to
his service on the committee. The option exercise price must be at least 100%
(110% in the case of a holder of 10% or more of the Common Stock) of the fair
market value of the stock on the date the option is granted, but in no case will
the exercise price be less than the offering price contained herein. The options
are exercisable by the holder thereof in full at any time following a vesting
period and prior to their expiration in accordance with the terms of the Plan.
Stock options granted pursuant to the Plan will expire on or before (i) the date
which is the tenth anniversary of the date the option is granted, or (ii) the
date which is the fifth anniversary of the date the option is granted in the
event that the option is granted to a key employee who owns more than 10% of the
total combined voting power of all classes of stock of the Company or any
subsidiary of the Company. The Company intends to grant to Mr. McGuire, at no
cost to him, an option to purchase a minimum of 34,444 shares of the Company's
common stock. See "MANAGEMENT - Executive Compensation."
The Committee may grant a Limited Right simultaneously with respect to the
grant of any stock option, with respect to all or some of the Shares covered
under the stock option. A Limited Right may not be exercised before six months
from the date of the grant and may be exercised only if: (i) there is a change
in control of the Company; (ii) the underlying option is eligible to be
exercised; and (iii) the fair market value of the underlying Shares on the day
of the exercise is greater than the exercise price of the related option. The
Limited Right may be for no more than 100% of the difference between the
exercise price and the fair market value of the common stock of the Company.
DIRECTORS STOCK OPTION PLAN. The Company has adopted a non-qualified
Directors Stock Option Plan ("Directors' Plan"), subject to shareholder
approval. The Company intends to grant to each of the proposed Organizing
directors options to purchase a minimum of 7,694 shares of common stock under
the Directors Plan. The stock options, granted pursuant to the Directors' Plan
at no cost to the Directors, will bear an exercise price of $10.00 per share.
The Directors' Plan will be designed to provide incentive compensation to
directors in the event that the Company's common stock increases in value during
the term of such options. The Directors' Plan is subject to shareholder approval
following the Bank's commencement of business. See "ORGANIZERS AND PRINCIPAL
SHAREHOLDERS."
34
<PAGE> 37
KEY-MAN LIFE INSURANCE
The Company intends to purchased "key-man" life insurance policy
("Policy") insuring the life of Mr. McGuire in an amount not less than $250,000.
Should Mr. McGuire die during the organizational process the Company may elect
to terminate the Offering and refund all subscription proceeds to the
Subscribers or the Company may seek a qualified replacement which would delay
the commencement of operations and increase pre-opening expenses.
ARTICLES OF INCORPORATION - SUMMARY
GENERAL
The authorized capital stock of the Company is 10,000,000 shares of Common
Stock, par value, $0.01 per share, of which no shares are presently outstanding
and 2,000,000 shares of preferred stock, of which 900 shares are presently held
by organizers. See "ORGANIZERS AND PRINCIPAL SHAREHOLDERS."
COMMON STOCK
The holders of Common Stock are entitled to elect the members of the Board
of Directors of the Company and such holders are entitled to vote as a class on
all matters required or permitted to be submitted to the shareholders of the
Company. No holder of any class of stock of the Company has preemptive rights
with respect to the issuance of shares of that or any other class of stock and
the Common Stock is not entitled to cumulative voting rights with respect to the
election of directors.
The holders of Common Stock are entitled to dividends and other
distributions if, as, and when declared by the Board of Directors out of assets
legally available therefore. Upon the liquidation, dissolution or winding up of
the Company, the holder of each share of Common Stock will be entitled to share
equally in the distribution of the Company's assets. The holders of Common Stock
are not entitled to the benefit of any sinking fund provision. The shares of
Common Stock of the Company are not subject to any redemption provisions, nor
are they convertible into any other security or property of the Company. All
shares of Common Stock outstanding upon completion of this Offering will be,
fully paid and nonassessable.
The Board of Directors has the authority to provide for the issuance of
Preferred Stock in series and to determine the number of shares of each series
and the designation, powers, preferences and rights of each series. The Board of
Directors has provided for the issuance of Class A preferred stock for the
purpose of funding preopening expenses. Class A Preferred Stock is non-voting
stock which pay no mandatory dividend. It is redeemable by the Company at any
time after the release of funds by the escrow agent. After the redemption
period, the preferred stock would pay a dividend at the sole discretion of the
Company. In the event of a dissolution, the Class A Preferred Stock will have a
distribution preference over Common Stock.
The Company will require the payment of a $10.00 transfer fee with regard
to all requests for cancellation and re-issue of the Company's shares after the
initial issue of share certificates. No such fee will be required for shares
originally issued, or issued in exchange for Warrants.
LEGAL PROCEEDINGS
There are no material pending legal proceedings to which the Company or
the proposed Bank is a party or of which any of their properties are subject;
nor are there material proceedings known to the Company contemplated by any
governmental authority; nor are there material proceedings known to the Company,
pending or contemplated, in which any director, officer or affiliate or any
proposed principal security holder of the Company, or any associate of any of
the foregoing is a party or has an interest adverse to the Company or the Bank.
35
<PAGE> 38
LEGAL MATTERS
Certain legal matters in connection with the shares of Common Stock
offered hereby will be passed upon for the Company by Igler & Dougherty, P.A.,
Park Tower - Suite 2625, 400 North Tampa Street, Florida 32602, counsel to the
Company.
EXPERTS
The financial statements of the Company for the period from May 18, 1998
(date of incorporation) to June 30, 1998 and as of June 30, 1998, included
elsewhere in the Registration Statement have been included in reliance upon the
reports of Hacker, Johnson, Cohen & Grieb, PA, independent certified public
accountants, and upon the authority of said firm as experts in accounting and
auditing matters.
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission, 450
Fifth Street Northwest, Washington, D.C. 20549, a Form SB-2 Registration
Statement (herein, together with all amendments thereto, called the
"Registration Statement") under the 33 Act, as amended, with respect to the
shares of Common Stock offered hereby. This filing was made electronically
through EDGAR. This Prospectus does not contain all of the information included
in the Registration Statement. For further information with respect to the
Company and the Common Stock, reference is hereby made to the Registration
Statement and the exhibits and schedules thereto. A complete copy of the
document may be obtained at the Securities and Exchange Commission's web site
located at http://www.sec.gov.
[Financial Statements Follow This Page]
36
<PAGE> 39
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Independent Auditors' Report........................................................F-2
Balance Sheet at June 30, 1998......................................................F-3
Statement of Operations for the Period from May 18, 1998
(Date of Incorporation) to June 30, 1998 ....................................F-4
Statement of Cash Flows for the Period from May 18, 1998
(Date of Incorporation) to June 30, 1998 ....................................F-5
Notes to Financial Statements as of June 30, 1998
and for the Period from May 18, 1998 (Date of Incorporation)
to June 30, 1998 ......................................................F-6 - F-7
</TABLE>
All schedules have been omitted because of the absence of the conditions under
which they are required or because the required information is included in the
financial statements and related notes.
F-1
<PAGE> 40
INDEPENDENT AUDITORS' REPORT
Board of Directors
Florida Business BancGroup, Inc.
Tampa, Florida:
We have audited the accompanying balance sheet of Florida Business BancGroup,
Inc. (a development stage company) (the "Company") at June 30, 1998, and the
related statement of operations, and cash flows for the period from May 18,
1998 (Date of Incorporation) to June 30, 1998. These financial statements are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audit provides a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of the Company at June 30, 1998,
and the results of its operations and its cash flows for the period from May
18, 1998 (Date of Incorporation) to June 30, 1998, in conformity with generally
accepted accounting principles.
/s/ Hacker, Johnson, Cohen & Grieb PA
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
September 29, 1998
F-2
<PAGE> 41
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEET
JUNE 30, 1998
<TABLE>
<CAPTION>
ASSETS
<S> <C>
Cash......................................................................... $ 51,637
--------
Total................................................................ $ 51,637
========
LIABILITIES AND STOCKHOLDERS' DEFICIT
Advances from organizers..................................................... 80,000
Stockholders' deficit:
Preferred stock:
Designated Series A, $0.01 par value, redeemable at $100 per
share, 1,000 shares, none issued or outstanding.................... --
Nondesignated, no par value, 1,999,000 shares authorized,
none issued or outstanding......................................... --
Common stock, $0.01 par value 10,000,000 shares authorized,
none issued or outstanding........................................... --
Accumulated deficit...................................................... (28,363)
--------
Total stockholders' deficit.......................................... (28,363)
--------
Total................................................................ $ 51,637
========
</TABLE>
See Accompanying Notes to Financial Statements.
F-3
<PAGE> 42
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
PERIOD FROM MAY 18, 1998 (DATE OF INCORPORATION) TO JUNE 30, 1998
<TABLE>
<S> <C>
Income.............................................................. $ --
---------
Salaries and employee benefits...................................... 10,258
Organizational costs................................................ 13,500
Other expenses...................................................... 4,605
---------
Total expenses.................................................. (28,363)
---------
Net loss........................................................ $ (28,363)
=========
</TABLE>
See Accompanying Notes to Financial Statements.
F-4
<PAGE> 43
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF CASH FLOWS
FOR THE PERIOD FROM MAY 18, 1998 (DATE OF INCORPORATION) TO JUNE 30, 1998
<TABLE>
<S> <C>
Cash flows used in administrative activities during the
development stage:
Net loss............................................................ $(28,363)
Cash flows from financing activities-
Advances from organizers............................................ 80,000
--------
Net increase in cash..................................................... 51,637
Cash at beginning of period.............................................. --
--------
Cash at end of period.................................................... $ 51,637
========
</TABLE>
See Accompanying Notes to Financial Statements.
F-5
<PAGE> 44
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
JUNE 30, 1998 AND FOR THE PERIOD FROM MAY 18, 1998 TO JUNE 30, 1998
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
GENERAL. Florida Business BancGroup, Inc. (the "Company") was incorporated
on May 18, 1998 in the State of Florida for the purpose of operating as
a bank holding company. The Company and its planned subsidiary Bay
Cities Bank (the "Bank") will be located in Tampa, Florida. As of June
30, 1998, neither the Company nor the Bank had commenced business
operations, and neither will do so until the Offering Period is
completed and the requisite approvals of the Florida Department of
Banking and Finance ("Department"), the Federal Deposit Insurance
Corporation ("FDIC") and the Board of Governors of the Federal Reserve
System ("Federal Reserve") are obtained. Therefore, with the exception
of organizational costs, accounting policies have not been established.
All organizational costs have been expensed as incurred.
The Company has adopted a fiscal year end of December 31.
ESTIMATES. The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make
estimates and assumptions that affect the reported amounts of assets
and liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results could
differ from those estimates.
(2) RELATED PARTIES
The Company has appointed one of its Organizers as the President and Chief
Executive Officer of the Company.
(3) ADVANCES FROM ORGANIZERS
To provide an initial source of funds with which to pay organizational and
preopening expenses, Organizers have made contributions of $80,000 as
of June 30, 1998. On September 29, 1998, these advances and an
additional $10,000 advance were converted into 900 shares of the
Company's Series A preferred stock.
(4) SALE OF COMMON SHARES
The Company plans to offer a minimum of 700,000 units and a maximum of
1,500,000 units in a public offering. The units will be offered at $10
each and will include one common share and one warrant. The Company
expects to incur expenses of approximately $30,000 in offering costs
related to this offering.
(5) WARRANTS
The Company has adopted a warrant plan which provides for 1,500,000
warrants to be issued in conjunction with the sale of the Company's
common stock. Each warrant will entitle the holder to purchase one
share of common stock for $10 anytime during a thirty-six month period,
however, the Company has the option to accelerate the warrant exercise
period.
(continued)
F-6
<PAGE> 45
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS, CONTINUED
(6) STOCK OPTION PLANS
INCENTIVE STOCK OPTION PLAN. The Company's Board of Directors has adopted
an Incentive Stock Option Plan ("Plan") for employees who are
contributing significantly to the management or operation of the
business of the Company or its subsidiaries as determined by the
committee administering the Plan. The Plan is contingent upon approval
by the Company's shareholders. The Plan provides for the grant of
options at the discretion of a committee designated by the Board of
Directors to administer the Plan.
DIRECTORS STOCK OPTION PLAN. The Company's Board of Directors has also
adopted a directors stock option plan. The Company has proposed
granting to each of the proposed Organizing directors options to
purchase a minimum of 7,694 shares of common stock under a nonqualified
Directors Stock Option Plan ("Directors' Plan"). The Directors' Plan is
subject to shareholder approval following the Bank's commencement of
business.
(7) SUBSEQUENT EVENTS
ESTABLISHMENT OF LINE OF CREDIT. On September 22, 1998, the Company
obtained a commitment for a line of credit from a bank to fund
additional organizational and preopening expenses. The line will be for
$300,000, will bear interest at prime less 1%, will be due in one year
and will be guaranteed by the Company's Organizers.
LEASE ON TEMPORARY OFFICE SPACE. On September 3, 1998, the Company entered
into an agreement to lease temporary office space. The lease term is
eleven months and provides for a monthly rental of $4,045. The Company
is negotiating the lease on its permanent office facilities.
F-7
<PAGE> 46
APPENDIX A
ARTICLES OF INCORPORATION
AND
AMENDED ARTICLES OF INCORPORATION
<PAGE> 47
ARTICLES OF INCORPORATION
OF
FLORIDA BUSINESS BANCGROUP, INC.
In compliance with the requirements of Chapter 607, Florida Statutes,
the undersigned, being a natural person, does hereby act as an incorporator in
adopting and filing the following Articles of Incorporation for the purpose of
organizing a business corporation.
ARTICLE I - NAME
The name of the corporation is Florida Business BancGroup, Inc.
("Corporation"). The initial street address of the principal office of the
Corporation is Park Tower, 400 N. Tampa Street, Suite 2625, Tampa, Florida 33602
or at such other place within the State of Florida as the Board of Directors may
designate.
ARTICLE II - NATURE OF BUSINESS
The Corporation may engage in or transact any or all lawful
activities or business permitted under the laws of the United States and the
State of Florida, or any other state, country, territory or nation.
ARTICLE III - CAPITAL STOCK
The maximum number of shares this Corporation is authorized to issue
is 10,000,000, all of which shall be common shares (Common Shares). All Common
Shares shall be identical with each other in every respect and the holders of
Common Shares shall be entitled to one vote for each share on all matters on
which shareholders have the right to vote.
ARTICLE IV - INITIAL REGISTERED AGENT AND STREET ADDRESS
The name of the registered agent is Igler & Dougherty, P.A., 1501
Park Avenue East, Tallahassee, Florida 32301, which address is also the address
of the Registered Office of the Corporation.
ARTICLE V - DIRECTORS
The initial Board of Directors shall consist of five (5) members. The
names and address of the person who will serve on the initial Board of Directors
is:
NAME ADDRESS
---- -------
Timothy A. McGuire Park Tower, 400 N. Tampa Street, Suite 2625
Tampa, Florida 33602
<PAGE> 48
ARTICLE VI - INCORPORATORS
The names and street addresses of the persons signing these Articles
of Incorporation are:
NAME ADDRESS
---- -------
Herbert D. Haughton Igler & Dougherty, P.A.
1501 Park Avenue East
Tallahassee, Florida 32301
ARTICLE VII - INDEMNIFICATION
The Corporation shall indemnify its directors, officers, employees,
and agents to the fullest extent permitted by Florida law.
ARTICLE XIII - AMENDMENT
The Corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation in the manner prescribed by Chapter
607, Florida Statutes, and all rights conferred upon shareholders are granted
subject to this reservation;
IN WITNESS WHEREOF, the undersigned incorporator has executed these
Articles of Incorporation this 7th day of May, 1998.
/s/ Herbert D. Haughton
--------------------------------
Herbert D. Haughton
Incorporator/General Counsel
<PAGE> 49
CERTIFICATE OF DESIGNATION OF
REGISTERED AGENT/REGISTERED OFFICE
PURSUANT TO THE PROVISIONS OF SECTION 607.0501, FLORIDA STATUTES, THE
UNDERSIGNED CORPORATION, ORGANIZED UNDER THE LAWS OF THE STATE OF FLORIDA,
SUBMITS THE FOLLOWING STATEMENT IN DESIGNATING THE REGISTERED THE REGISTERED
OFFICE/REGISTERED AGENT, IN THE STATE OF FLORIDA.
1. The name of the corporation is Florida Business BancGroup, Inc.
2. The name and address of the registered agent and office is:
Igler & Dougherty, P.A.
1501 Park Avenue East
Tallahassee, Florida 32301
Having been named as registered agent and to accept service of process for the
above stated corporation at the place designated in this certificate, I hereby
accept the appointment as registered agent and agree to act in this capacity. I
further agree to comply with the provisions of all statutes relating to the
proper and complete performance of my duties, and I am familiar with and accept
the obligations of my position as registered agent.
IGLER & DOUGHERTY, P.A.
By: /s/ Herbert D. Haughton May 7, 1998
----------------------------------- --------------------
Herbert D. Haughton, Secretary Date
<PAGE> 50
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
FLORIDA BUSINESS BANCGROUP, INC.
Pursuant to Section 607.1005, Florida Statutes, Florida Business
BancGroup, Inc. ("Corporation") adopts the following Articles of Amendment to
its Articles of Incorporation dated May 18, 1998.
ARTICLE I
Article III is hereby amended to read:
ARTICLE III - CAPITAL STOCK.
SECTION 1 - CLASSES OF STOCK: The total number of shares of all
classes of capital stock which the Corporation shall have authority to issue is
12,000,000, consisting of:
A. 2,000,000 shares of preferred stock ("Preferred Stock"); and
B. 10,000,000 shares of common stock, par value one cent
($0.01) per share ("Common Stock").
SECTION 2 - COMMON STOCK: There shall be one class of Common Stock.
Each share of Common Stock shall have the same relative rights and be identical
in all respects with every other share of Common Stock. The holders of Common
Stock are entitled to elect the members of the Board of Directors of the Company
and such holders are entitled to vote as a class on all matters required or
permitted to be submitted to the shareholders of the Company. Each holder of
Common Stock is entitled to one vote per share. No holder of any class of stock
of the Company has preemptive rights with respect to the issuance of shares of
that or any other class of stock and the Common Stock is not entitled to
cumulative voting rights with respect to the election of directors.
SECTION 3 - PREFERRED STOCK: The Board of Directors is authorized,
subject to any limitations prescribed by law, to provide for the issuance of the
shares of Preferred Stock in series, and by filing a certificate pursuant to the
applicable laws of the State of Florida (such certificate being hereinafter
referred to as a "Preferred Stock Designation"), to establish from time to time
the number of shares to be included in each such series and to fix the slated
value, designation, powers, preferences and right of the shares of each such
series and any qualifications, limitations or restrictions thereof. The number
of authorized shares of Preferred Stock may be increased or decreased (but not
below the number of shares then outstanding) by the affirmative vote of the
holders of a majority of the Common Stock, without a vote of the holders of the
Preferred Stock, or of any series thereof, unless a vote of any such holders is
required pursuant to the terms of any Preferred Stock Designation.
<PAGE> 51
ARTICLE II
Article V is hereby amended to read:
ARTICLE V - MANAGEMENT OF THE BUSINESS OF THE COMPANY.
SECTION 1 - AUTHORITY OF THE BOARD: The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authority expressly conferred upon them
by the Florida Statutes or by these Articles of Incorporation or the Bylaws of
the Corporation, the directors are hereby empowered to exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation.
SECTION 2 - ACTION BY SHAREHOLDERS: Any action required or permitted
to be taken by the shareholders of the Corporation must be effected at a duly
called Annual or Special Meeting of Shareholders of the Corporation and may not
be effected by any consent in writing by such shareholders.
SECTION 3 - SPECIAL MEETING OF SHAREHOLDERS: Special Meeting of
shareholders of the Corporation may be called by the Board of Directors pursuant
to a resolution adopted by a majority of the total number of authorized
directors (whether or not there exist any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board for
adoption), the Chairman of the Board or the President of the Corporation, or by
shareholders holding at least 20% of the outstanding shares of the Corporation.
ARTICLE III
Article VI is hereby amended to read:
ARTICLE VI - DIRECTORS.
SECTION 1 - NUMBER OF DIRECTORS: The Board of Directors of the
Corporation shall be comprised of not less than three (3) nor more than fifteen
(15) directors and shall be fixed from time to time exclusively by the Board of
Directors pursuant to a resolution adopted by a majority of the Full Board as
set forth in the Corporation's Bylaws. The Board of Directors is authorized to
increase the number of directors by no more than two and to immediately appoint
persons to fill the new director positions until the next Annual Meeting of
Shareholders, at which meeting the new director positions shall be filled by
persons elected by the shareholders of the voting power of all the
then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
SECTION 2 - ELECTION AND TERM: Directors shall be elected by a
plurality of the votes cast by the shares entitled to vote in the election at a
meeting at which a quorum is present. The term of the initial directors of the
Corporation expires at the first shareholders' meeting at which directors are
elected.
2
<PAGE> 52
SECTION 3 - CLASSES: The Directors shall be divided into three
classes, as nearly equal in number as reasonably possible, with the term of
office of the first class (Class I) to expire at the 1999 Annual Meeting of the
Shareholders, the term of office of the second class (Class II) to expire at the
2000 Annual Meeting of Shareholders and the term of office of the third class
(Class III) to expire at the 2001 Annual Meeting of Shareholders. At each Annual
Meeting of Shareholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding Annual meeting of
Shareholders after their election.
SECTION 4 - VACANCIES: Subject to the rights of the holders of any
series of Preferred Stock then outstanding, newly created directorships
resulting from any increase in the authorized number of directors of any
vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause may be filled
only by a majority vote of the directors then in office, though less than a
quorum. Directors so chosen shall hold office for a term expiring at the next
Annual Meeting of Shareholders. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
SECTION 5 - NOTICE: Advance notice of shareholder nominations for the
election of directors and of business to be brought by shareholders before any
meeting of the shareholders of the Corporation shall be given in the manner
provided in the Bylaws of the Corporation.
SECTION 6 - REMOVAL BY SHAREHOLDERS: Subject to the rights of the
holders of any series of Preferred Stock then outstanding, any director, or the
entire Board of Directors, may be removed from office at any time by the
affirmative vote of the holders of at least 66% of the voting power of all of
the then-outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
ARTICLE IV
The following Article VIII is hereby adopted and incorporated into
the Articles of Incorporation:
ARTICLE VIII - ACQUISITION OFFERS.
The Corporation shall not be merged or consolidated with another
corporation or entity and the Corporation shall not sell or otherwise dispose of
all or substantially all of the properties or assets of the Corporation unless
such merger, consolidation, sale or disposition is approved by a vote of at
least 66% of the outstanding shares of common stock of the Corporation.
The Board of Directors of the Corporation, when evaluating any offer
of another Person to: (i) make a tender or exchange offer for any equity
security of the Corporation, (ii) merge or consolidate the Corporation with
another corporation or entity, or (iii) purchase or otherwise acquire all or
substantially all of the properties and assets of the Corporation, shall, in
connection with the exercise of its judgment in determining what is in the best
interest of the Corporation and its
3
<PAGE> 53
shareholders, give due consideration to all relevant factors including, without
limitation, the social and economic effect of acceptance of such offer on the
Corporation's present and future customers and employees and those of its
Subsidiaries; on the communities in which the Corporation and its Subsidiaries
operate or are located; on the ability of the Corporation to fulfill its
corporate objectives as a financial institution holding company and on the
ability of its subsidiary financial institutions to fulfill the objectives of
such institutions under applicable statutes and regulations.
ARTICLE V
Articles XIII is hereby amended to read:
ARTICLE IX - AMENDMENTS.
The Corporation reserves the right to amend or repeal any provision
contained in these Articles of Incorporation in the manner prescribed by Chapter
607, Florida Statutes, and all rights conferred upon shareholders are granted
subject to this reservation; however, an affirmative vote of at least 66% of the
outstanding common stock of the Corporation shall be necessary to amend Articles
VIII and Article V, Section 6 of these Articles.
ARTICLES VI
These amendments were adopted by the Incorporators without
shareholder action prior to the issuance of any shares of the Corporation and
shareholder action was, therefore, not required.
ARTICLE VII
The date of each amendment adopted is the date of the execution of
these Articles.
IN WITNESS WHEREOF, the undersigned Incorporator has executed these
Articles of Amendment to the Articles of Incorporation of Florida Business
Bancgroup, Inc. this 28th day of September, 1998.
/s/ Herbert D. Haughton
-------------------------------------
Herbert D. Haughton
Incorporator/General Counsel
4
<PAGE> 54
APPENDIX B
ESCROW AGREEMENT
<PAGE> 55
INDEPENDENT BANKERS' BANK OF FLORIDA
ESCROW AGREEMENT
This Escrow Agreement is entered into and effective this ____ day of
_______, 1998, by and between Florida Business Bancgroup, Inc., a Florida
corporation (the "Company") and the Independent Bankers' Bank of Florida
("Escrow Agent" or "Agent").
W I T N E S S E T H:
WHEREAS, the Company, proposes to offer for sale up to 1,500,000 shares of
its $ 0.01 par value common stock (the "Common Stock"), which shares shall be
registered under the Securities Act of 1933, as amended, at a price of $10.00
each, in minimum subscriptions of 2,000 shares ("Offering"); and
WHEREAS, the Company has requested the Escrow Agent to serve as the
depository for the payment of subscription proceeds ("Subscription Payment(s) or
Funds") received by the Company from investor(s) who are subscribing to purchase
shares of Common Stock in the Company pursuant to, and in accordance with, the
terms and conditions contained in the Company's Prospectus dated _________, 1998
and an executed Unit Order Form and Certification ("Unit Order Form"); and
WHEREAS, the Offering will terminate at 5:00 P.M., Local Time, 90 Days
after the Effective Date of the Company's Registration Statement, unless
extended by the Company for up to an additional 90 days ("Offering Period").
NOW THEREFORE, in consideration of the premises and understandings contained
herein, the parties agree as follows:
(1) The Company hereby appoints and designates the Escrow Agent for the
purposes set forth herein. The Escrow Agent acknowledges and accepts said
appointment and designation. The Company understands that the Escrow Agent, by
accepting said appointment and designation, in no way endorses the merits of the
offering of the shares described herein. The Company agrees to notify any person
acting on its behalf that the position of Escrow Agent does not constitute such
an endorsement, and to prohibit said persons from the use of the Agent's name as
an endorser of such offering. The Company further agrees to allow the Escrow
Agent to review any sales literature in which the Agent's name appears and which
is used in connection with such offering.
(2) The Company shall deliver all Subscription Payments received to the
Escrow Agent (Independent Bankers' Bank of Florida, Attn: Customer Service
Group) in the form in which they are received by noon of the fifth (5th)
business day after their receipt by the Company, and the Company shall deliver
to the Escrow Agent within fifteen (15) calendar days after receipt, copies of
written acceptances of the Company for shares in the Company for which the
Subscription Funds represent payment. Upon receipt, the Escrow Agent shall
immediately deposit such funds into the escrow account. The Company shall also
deliver to the Escrow Agent completed copies of Unit Order Forms for each
subscriber, along with such subscriber's name, address, number of shares
subscribed and social security or taxpayer identification number.
Page 1 of 6
<PAGE> 56
(3) Subscription Funds shall be held and disbursed by the Escrow Agent in
accordance with the terms of this Agreement.
(4) In the event any Subscription Payment is dishonored for payment for
any reason, the Escrow Agent agrees to orally notify the Company thereof as soon
as practicable and to confirm same in writing and to return the dishonored
Subscription Funds to the Company in the form in which they were delivered.
(5) Should the Company elect to accept a subscription for less than the
number of shares shown in the purchaser's Unit Order Form, by indicating such
lesser number of shares on the written acceptance of the Company transmitted to
the Escrow Agent, the Escrow Agent shall, upon separate instruction from the
Company, remit within ten (10) days to such subscriber at the address shown in
his Unit Order Form that amount of his Subscription Payment in excess of the
amount which constitutes full payment for the number of subscribed shares
accepted by the Company as shown in the Company's written acceptance, without
interest or diminution. Said address shall be provided by the Company to the
Escrow Agent as requested.
(6) Definitions as used herein:
(a) "Total Receipts" shall mean the sum of all Subscription Payments
delivered to the Escrow Agent pursuant to Paragraph (3) hereof, less: (i) all
Subscription Funds returned pursuant to Paragraphs (4) and (5) hereof; and (ii)
all Subscription Funds which have not been paid by the financial institution
upon which they are drawn.
(b) "Expiration Date" shall mean 5:00 P.M., Local Time, 90 days after
the Effective Date of the Company's Registration Statement dated _____________,
1998; provided, however, in the event that the Escrow Agent is given oral
notification followed in writing, by the Company that it has elected to extend
the offering to a date not later than 90 additional days, then the Expiration
Date shall mean 5:00 P.M., Local Time, on the date to which the offering has
been extended. The Company will notify the Escrow Agent of the effective date of
the Prospectus as soon as practicable after such date has been determined.
(c) "Closing Date" shall mean the business day on which the Company,
after determining that all of the Offering conditions have been met, selects in
its sole discretion. The Closing Date shall be confirmed to the Escrow Agent in
writing by the Company.
(d) "Escrow Release Conditions" shall mean that (i) the Company has
not canceled the Offering, and (ii) that the Company has received preliminary
approval from the appropriate regulatory entity to charter the Bank as well as
preliminary approval for deposit insurance from the FDIC.
(7) If, on or before the Expiration Date, (i) the Total Receipts held by
the Escrow Agent equal or exceed $7,000,000 and (ii) the Company has certified
to the Agent that, upon receipt of the net proceeds of the offering (after the
deduction of all fees, commissions, and other expenses of the offering): (a) the
Company will have stockholders' equity of at least $6,000,000; and (b) the
Escrow Release Conditions have been consummated, the Escrow Agent shall:
(a) No later than 10:00 A.M., Local Time, one day prior to Closing
Date (as that term is defined herein), deliver to the Company all Subscription
Documents provided to the Escrow Agent; and
Page 2 of 6
<PAGE> 57
(b) On the Closing Date, no later than 10:00 o'clock A.M., Local
Time, upon receipt of 24-hour written instructions from the Company, remit all
amounts representing Subscription Funds, plus any profits or earnings, held by
the Escrow Agent pursuant hereto to the Company in accordance with such
instructions.
(8) If (i) the Escrow Release Conditions are not met by the Expiration
Date, or (ii) the offering is canceled by the company at any time prior to the
Expiration Date, then the Escrow Agent shall promptly remit to each subscriber
at the address set forth in his Unit Order Form an amount equal to the amount of
his Subscription Payments thereunder, plus any profits or earnings thereon to
the extent that such profits or earnings are not payable to the Company under
paragraph (9) of this Escrow Agreement. The earnings accruing to any individual
subscriber under this paragraph shall be a prorated share of the gross earnings
on all funds under escrow, weighted by the amount and the duration of the funds
tendered for the individual subscription. Under no circumstances will earnings
accrue to any subscription canceled for any reason other than those provided for
in this paragraph.
(9) Pending disposition of the Subscription Funds under this Agreement,
the Escrow Agent will invest collected Subscription Funds, in $1,000 increments
above a maintained balance of $50,000, in overnight repurchase agreements
collateralized at 102% with obligations of the United States Treasury or United
States Government Agencies. These repurchase agreement transactions will earn
interest at a rate of 35 basis points below the daily Overnight Fed Funds Sold
rate. The Escrow Agent shall pay such investment interest to the Company upon
written instruction from the Company for the purpose of paying or reimbursing
the Company for pre-opening or organizing expenses.
(10) The obligations as Escrow Agent hereunder shall terminate upon the
Agents transferring all funds held hereunder pursuant to the terms of Paragraphs
(7) or (8) herein, as applicable.
(11) The Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization, or other
paper or document which the Agent believes to be genuine and what it purports to
be.
(12) The Escrow Agent shall not be liable for anything which the Agent may
do or refrain from doing in connection with this Escrow Agreement, except for
the Agent's own gross negligence or willful misconduct.
(13) The Escrow Agent may confer with legal counsel in the event of any
dispute or questions as to the construction of any of the provisions hereof, or
the Agent's duties hereunder, and shall incur no liability and shall be fully
protected in acting in accordance with the opinions and instructions of such
counsel. Any and all expenses and legal fees in this regard will be paid by the
Company.
(14) In the event of any disagreement between the Company and any other
person resulting in adverse claims and demands being made in connection with any
Subscription Funds involved herein or affected hereby, the Agent shall be
entitled to refuse to comply with any such claims or demands as long as such
disagreement may continue, and in so refusing, shall make no delivery or other
disposition of any Subscription Funds then held under this Agreement which are
the subject of such disagreement, and in so doing shall be entitled to continue
to refrain from acting until (a) the right of adverse claimants shall have been
finally settled by binding arbitration or finally adjudicated in a court in
Orange County, Florida assuming and having jurisdiction of the Subscription
Funds involved herein or affected hereby or (b) all differences shall have been
adjusted by agreement and the Agent shall have been notified in writing of such
agreement signed by the parties hereto. In the event of such disagreement, the
Agent may, but need not, tender into the
Page 3 of 6
<PAGE> 58
registry or custody of any court of competent jurisdiction in Orange County,
Florida all money or property in the Agent's hands under the terms of this
Agreement, together with such legal proceedings as the Agent deems appropriate
and thereupon to be discharged from all further duties under this Agreement. The
filing of any such legal proceeding shall not deprive the Agent of compensation
earned prior to such filing. The Escrow Agent shall have no obligation to take
any legal action in connection with this Agreement or towards its enforcement,
or to appear in, prosecute or defend any action or legal proceeding which would
or might involve the Agent in any cost, expense, loss or liability unless
indemnification shall be furnished.
(15) The Escrow Agent may resign for any reason, upon thirty (30) days
written notice to the Company. Upon the expiration of such thirty (30) day
notice period, the Escrow Agent may deliver all Subscription Funds and Unit
Order Forms in possession under this Escrow Agreement to any successor Escrow
Agent appointed by the Company, or if no successor Escrow Agent has been
appointed, to any court of competent jurisdiction. Upon either such delivery,
the Escrow Agent shall be released from any and all liability under this Escrow
Agreement. A termination under this paragraph shall in no way change the terms
of Paragraphs (14) and (16) affecting reimbursement of expenses, indemnity and
fees.
(16) The Escrow Agent will charge the Company for services hereunder a fee
of $1,500, plus an additional fee of $5.00 for each check issued, $10.00 for
each wire and $.50 for each photo copy necessitated in the performance of
duties, with total fees for services not to exceed $2,500. All actual expenses
and costs incurred by the Agent in performing obligations under this Escrow
Agreement will be paid by the Company. All fees and expenses shall be paid on
the Closing Date by the Company. Any subsequent fees and expenses will be paid
by the Company upon receipt of invoice.
(17) All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if sent by registered or certified mail, return
receipt requested, to the respective addresses set forth herein. The Escrow
Agent shall not be charged with knowledge of any fact, including but not limited
to performance or non-performance of any condition, unless the Escrow Agent has
actually received written notice thereof from the Company or its authorized
representative clearly referring to this Escrow Agreement.
(18) The rights created by this Escrow Agreement shall inure to the
benefit of, and the obligations created hereby shall be binding upon the
successors and assigns of the Escrow Agent and the parties hereto.
(19) This Escrow Agreement shall be construed and enforced according to
the laws of the State of Florida.
(20) This Escrow Agreement shall terminate and the Escrow Agent shall be
discharged of all responsibility hereunder at such time as the Escrow Agent
shall have completed all duties hereunder.
(21) This Escrow Agreement may be executed in several counterparts, which
taken together shall constitute a single document.
(22) This Escrow Agreement constitutes the entire understanding and
agreement of the parties hereto with respect to the transactions described
herein and supersedes all prior agreements or understandings, written or oral,
between the parties with respect thereto.
Page 4 of 6
<PAGE> 59
(23) If any provision of this Escrow Agreement is declared by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions shall nevertheless continue in full force and effect without being
impaired or invalidated in any way.
(24) The Company shall provide the Escrow Agent with its Employer
Identification Number as assigned by the Internal Revenue Service. Additionally,
the Company shall complete and return to the Escrow Agent any and all tax forms
or reports required to be maintained or obtained by the Escrow Agent.
(25) The authorized signature of the Escrow Agent hereto is consent that a
signed copy hereof may be filed with the various regulatory authorities of the
State of Florida and with any Federal regulatory authorities.
IN AGREEMENT AND ACCEPTANCE OF THE INDEPENDENT BANKERS' BANK OF FLORIDA ESCROW
AGREEMENT BETWEEN FLORIDA BUSINESS BANCGROUP, INC. (COMPANY), FOR THE PURPOSE OF
ORGANIZING A FINANCIAL INSTITUTION TO BE KNOWN AS BAY CITIES BANK, AND THE
INDEPENDENT BANKERS' BANK OF FLORIDA (ESCROW AGENT).
FLORIDA BUSINESS BANCGROUP, INC.
Address: 500 N. Westshore Boulevard,
Suite 1000
Tampa, Florida 33609
Phone: (813) 282-7242
ATTEST:
By: By:
------------------------------- -------------------------------
Authorized Signature
Title: Title:
------------------------------- ------------------------------
(Type Name and Title) (Type Name and Title)
ATTEST: ADDITIONAL AUTHORIZED SIGNER
By: By:
------------------------------- -------------------------------
Authorized Signature
Title: Title:
------------------------------- ------------------------------
(Type Name and Title) (Type Name and Title)
(CORPORATE SEAL)
Page 5 of 6
<PAGE> 60
IN AGREEMENT AND ACCEPTANCE OF THE INDEPENDENT BANKERS' BANK OF FLORIDA ESCROW
AGREEMENT BETWEEN FLORIDA BUSINESS BANCGROUP, INC. (COMPANY), FOR THE PURPOSE OF
ORGANIZING A FINANCIAL INSTITUTION TO BE KNOWN AS BAY CITIES BANK, AND THE
INDEPENDENT BANKERS' BANK OF FLORIDA (ESCROW AGENT).
INDEPENDENT BANKERS' BANK OF FLORIDA
Address: 109 E. Church Street
Suite BB
P.O. Box 4998
Orlando, FL 32802-4998
Phone: (407) 423-2002
Fax: (407) 843-4817
ATTEST:
<TABLE>
<S> <C> <C> <C>
By: By:
------------------------------- -----------------------------------------
Authorized Signature
Title: Title: James H. McKillop, Senior Vice President
------------------------------- ----------------------------------------
(Type Name and Title) (Type Name and Title)
ATTEST: ADDITIONAL AUTHORIZED SIGNER
By: By:
------------------------------- -----------------------------------------
Authorized Signature
Title: Title:
------------------------------- ----------------------------------------
(Type Name and Title) (Type Name and Title)
(CORPORATE SEAL)
</TABLE>
Page 6 of 6
<PAGE> 61
APPENDIX C
UNIT ORDER FORM
<PAGE> 62
UNIT ORDER FORM & FLORIDA BUSINESS BANCGROUP, INC.
CERTIFICATION
(Holding Company for Bay Cities Bank)
(OFFERING ORDER FORM)
Note: Please read the Stock Order Form Guide and Instructions on the back of
this form before completion
- --------------------------------------------------------------------------------
DEADLINE: The Offering began __________, 1998. A condition of the Offering is
that the Minimum Offering (sale of 700,000 Units, each Unit consisting of one
(1) share of Common Stock and one (1) Warrant to purchase one (1) additional
share of Common Stock for $10.00, must be completed on or before ______________,
1999, or the Offering will be terminated. If the minimum offering is
consummated, the Offering will continue so long as shares remain available or
until 5:00 p.m. Local Time, on November __, 1999, whichever occurs first, unless
terminated by the Company beforehand.
- --------------------------------------------------------------------------------
NUMBER OF UNITS
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
(1) Number of Units Price Per Unit (2) Total Amount Due
------------------- ----------------
x $10.00 = $
------------------- ----------------
</TABLE>
The minimum number of Units that may be subscribed for is 2,000. The maximum any
individual and their Related Party may subscribe for in the Offering is 148,500
Units or 9.9% of the total number of shares outstanding following the completion
of the Offering. See the Section entitled "THE OFFERING - General" on page 10 of
the Prospectus dated __________, 1998.
- --------------------------------------------------------------------------------
METHOD OF PAYMENT AND PURCHASER INFORMATION
- --------------------------------------------------------------------------------
(3) [ ] Enclosed is a check, bank draft or money order payable to INDEPENDENT
BANKERS' BANK OF FLORIDA FBO FBBI of $___________.
(4) [ ] Check here if you are a director or employee of FBBI or a member of such
person's immediate family.
- --------------------------------------------------------------------------------
STOCK REGISTRATION
- --------------------------------------------------------------------------------
(5) Form of stock ownership
<TABLE>
<S> <C> <C>
[ ] Individual [ ] Uniform Transfer to Minors [ ] Partnership
[ ] Joint Tenants [ ] Uniform Gift to Minors [ ] Individual Retirement Account
[ ] Tenants in Common [ ] Corporation [ ] Fiduciary/Trust (Under Agreement Dated ________)
</TABLE>
<TABLE>
<S> <C> <C> <C>
----------------------------------------------------------------------------- --------------------------------------------
Name Social Security or Tax I.D.
----------------------------------------------------------------------------- --------------------------------------------
Name Daytime Telephone
-------------------------------------------------------- -----------------------------------------------------------------
Street Address Evening Telephone
----------------------------------------------------------------------------- --------------------------------------------
City State Zip Code State of Residence
----------------------------------------------------------------------------- --------------------------------------------
</TABLE>
Note: The Unit Order Form and Certification will constitute a binding
subscription for the purchase of common stock of Florida Business
BancGroup, Inc. according to its terms and the terms set forth in the Form
of Acceptance.
================================================================================
OFFICE USE Batch # _______
Date Rec'd ___/____/____ Order # ____________
Check # _____________ Category ____________
Amount $____________ Initials ____________
================================================================================
<PAGE> 63
- --------------------------------------------------------------------------------
NASD AFFILIATION (This section only applies to those individuals who meet the
delineated criteria)
- --------------------------------------------------------------------------------
[ ] Check here if you are a member of the National Association of Securities
Dealers, Inc. ("NASD"), a person associated with an NASD member, a member of the
immediate family of any such person to whose support such person contributes,
directly or indirectly, or the holder of an account in which an NASD member or
person associated with an NASD member has a beneficial interest. To comply with
conditions under which an exemption from the NASD's Interpretation with Respect
to Free-Riding and Withholding is available, you agree, if you have checked the
NASD affiliation box: (1) not to sell, transfer or hypothecate the shares
subscribed for herein for a period of three months following the issuance, and
(2) to report this subscription in writing to the applicable NASD member within
one day of the payment therefor.
- --------------------------------------------------------------------------------
ACKNOWLEDGMENTS
- --------------------------------------------------------------------------------
1. By signing below, I acknowledge receipt of the Prospectus dated November
__, 1998, and that I have reviewed all provisions therein. I understand
that I may not change or revoke my order once it is received by FBBI. I
also certify that this stock order is for my account and there is no
agreement or understanding regarding any further sale or transfer of these
shares.
2. Under penalties of perjury, I further certify that:
(i) the social security number or taxpayer identification number given
above is correct; and
(ii) I am not subject to backup withholding.
If you have been notified by the Internal Revenue Service that you are
subject to backup withholding because of under-reporting interest or
dividends on your tax return, you must cross out Item (ii) above.
3. By signing below, I also acknowledge that I have not waived any rights
under the Securities Act of 1933 and the Securities Exchange Act of 1934.
4 By signing below, I hereby represent to FBBI that the purchase of shares
subscribed for complies with the "Purchase Limitation" set forth in the
Prospectus dated __________, 1998.
5. By signing below, I certify that before purchasing the Common Stock of FBBI
that I received a copy of the Prospectus dated, November __, 1998, which
discloses the nature of the Common Stock being offered thereby and
describes certain risks involved in an investment in the Common Stock under
the heading "Risk Factors" beginning on page 6 of the Prospectus.
- --------------------------------------------------------------------------------
SIGNATURE
- --------------------------------------------------------------------------------
THIS FORM MUST BE SIGNED AND DATED. THIS ORDER IS NOT VALID IF THE UNIT ORDER
FORM IS NOT SIGNED. YOUR ORDER WILL BE FILLED IN ACCORDANCE WITH THE PROVISIONS
OF THE PROSPECTUS.
When purchasing as a custodian, corporate officer, etc.; include your full
title. An additional signature is required only if payment is by withdrawal from
an account that requires more than one signature to withdraw funds.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Signature Title (if applicable) Date
- --------------------------------------------------------------------------------
<S> <C> <C>
1.
- --------------------------------------------------------------------------------
2.
- --------------------------------------------------------------------------------
3.
- --------------------------------------------------------------------------------
</TABLE>
THE SHARES OF COMMON STOCK OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS AND ARE NOT
INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK
INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
RETURN THIS FORM TO: Florida Business BancGroup, Inc.
Attn: Stock Sales Center
500 North Westshore Boulevard, Suite 1000
Tampa, Florida 33622
<PAGE> 64
FLORIDA
BUSINESS UNIT ORDER FORM GUIDE
BANCGROUP, INC. AND INSTRUCTIONS
- --------------------------------------------------------------------------------
INSTRUCTIONS
- --------------------------------------------------------------------------------
ITEMS 1 AND 2 - Fill in the number of Units that you wish to purchase and the
total payment due. The amount due is determined by multiplying the number of
Units by the Subscription Price of $10.00 per share. The minimum purchase is
2,000 Units. With the exception of the Organizers, the maximum amount any
participant may purchase in the Offering is 148,500 Units in the Offering, or
9.9% of the total number of shares outstanding following the completion of the
Offering, whichever is greater.
FBBI has reserved the right to reject any subscription received in the Offering,
if any, in whole or in part.
ITEM 3 - Payment for shares may be made by check, bank draft or money order made
payable to "INDEPENDENT BANKERS' BANK OF FLORIDA FBO FBBI." DO NOT MAIL CASH.
Your funds will be returned promptly with interest if the Offering is
terminated.
ITEM 5 - The stock transfer industry has developed a uniform system of
shareholder registrations that we will use in the issuance of FBBI common stock.
Print the name(s) in which you want the shares registered and the mailing
address of the registration. Include the first name, middle initial and last
name of the shareholder. Avoid the use of two initials. Please omit the words
that do not affect ownership rights, such as "Mrs.," "Mr.," "Dr.," "special
account," etc.
SEE YOUR LEGAL OR FINANCIAL ADVISOR IF YOU ARE UNSURE ABOUT THE CORRECT
REGISTRATION OF YOUR STOCK AND WARRANTS.
INDIVIDUAL - The shares and warrants are to be registered in an individual's
name only. You may not list beneficiaries for this ownership.
TENANTS IN COMMON - Tenants in common may also identify two or more owners. When
shares/warrants are held by tenants in common, upon the death of one co-tenant,
ownership of the shares/warrants will be held by the surviving co-tenant(s) and
by the heirs of the deceased co-tenant. All parties must agree to the transfer
or sale of shares held by tenants in common. You may not list beneficiaries for
this ownership.
INDIVIDUAL RETIREMENT ACCOUNT - Individual Retirement Account ("IRA") holders
may make unit purchases from their deposits through a pre-arranged
"trustee-to-trustee" transfer. Shares may only be held in a self-directed IRA.
Bay Cities Bank does not offer a self-directed IRA. Please contact the Stock
Sales Center if you have any questions about your IRA account. There will be no
early withdrawal or IRS penalties incurred in these transactions.
UNIFORM GIFT TO MINORS - For residents of many states, shares/warrants may be
held in the name of a custodian for the benefit of a minor under the Uniform
Transfers to Minors Act. For residents in other states, shares may be held in a
similar type of ownership under the Uniform Gift to Minors Act of the individual
states. For either type of ownership, the minor is the actual owner of the
shares with the adult custodian being responsible for the investment until the
child reaches legal age.
On the first line, print the first name, middle initial and last name of the
custodian, with the abbreviation "CUST" and "Unif Tran Min Act" or "Unif Gift
Min Act" after the name. Print the first name, middle initial and last name of
the minor on the second "NAME" line. Standard U.S. Postal Service state
abbreviations should be used to describe the appropriate state. For example,
shares held by John Doe as custodian for Susan Doe under the Ohio Transfer to
Minors Act will be abbreviated John Doe, CUST Susan Doe Unif Tran Min Act. OH.
USE THE MINOR'S SOCIAL SECURITY NUMBER. Only one custodian and one minor may be
designated.
(Front)
<PAGE> 65
JOINT TENANTS - Joint Tenants with right of survivorship identifies two or more
owners. When shares/warrants are held by joint tenants with rights of
survivorship, ownership automatically passes to the surviving joint tenant(s)
upon the death of any joint tenant. You may not list beneficiaries for this
ownership.
CORPORATION/PARTNERSHIP - Corporations/Partnerships may purchase Units. Please
provide the Corporation's/Partnership's legal name and Tax I.D.
FIDUCIARY/TRUST - Generally, fiduciary relationships (such as trusts, estates,
guardianships, etc.) are established under a form of trust agreement or pursuant
to a court order. Without a legal document establishing a fiduciary
relationship, your shares/warrants may not be registered in a fiduciary
capacity.
On the first "NAME" line, print the first name, middle initial and last name of
the fiduciary if the fiduciary is an individual. If the fiduciary is a
corporation, list the corporate title on the first "NAME" line. Following the
name, print the fiduciary "title" such as trustee, executor, personal
representative, etc.
On the second "NAME" line, print either the name of the maker, donor or testator
OR the name of the beneficiary. Following the name, indicate the type of legal
document establishing the fiduciary relationship (agreement, court order, etc.).
In the blank after "Under Agreement Dated," fill in the date of the document
governing the relationship. The date of the document need not be provided for a
trust created by a will.
An example of fiduciary ownership of stock in the case of a trust is: "John D.
Smith, Trustee for Thomas A. Smith Trust Under Agreement Dated June 9, 1987."
- --------------------------------------------------------------------------------
DEFINITION OF ASSOCIATE
- --------------------------------------------------------------------------------
A person's Associates consist of the following: (a) any corporation or other
organization (other than Florida Business BancGroup, Inc. ["FBBI"], Bay Cities
Bank ["Bank"], or a majority owned subsidiary of the Bank) of which such person
is a director, officer or partner or is directly or indirectly the beneficial
owner of 10% or more of any class of equity securities; (b) any trust or other
estate in which such person has a substantial beneficial interest or as to which
such person serves as trustee or in a similar fiduciary capacity, provided,
however, that such term shall not in include any tax-qualified employee stock
benefit plan of FBBI or the Bank in which such person has a substantial
beneficial interest or serves as a trustee or in a similar fiduciary capacity;
and (c) any relative or spouse of such person, or any relative of such person,
who either has the same home as such person or who is a director or officer of
FBBI or the Bank or any of their subsidiaries.
- --------------------------------------------------------------------------------
NON-TRANSFERABILITY OF RIGHTS
- --------------------------------------------------------------------------------
Subscription rights are not transferable. If you are a qualified shareholder, to
protect your priority over other purchasers as described in the Prospectus, you
must take ownership in at least one of the account holder's names. Enter the
Social Security or Tax I.D. number of one registered owner. This registered
owner must be listed on the first "NAME" line. BE SURE TO INCLUDE YOUR TELEPHONE
NUMBER BECAUSE WE WILL NEED TO CONTACT YOU IF WE CANNOT EXECUTE YOUR ORDER AS
GIVEN. Review the Stock Ownership Guide and refer to the instructions for
Uniform Gift to Minors/Uniform Transfer to Minors and Fiduciaries.
<PAGE> 66
STOCK AND WARRANT CERTIFICATE REGISTRATION
INSTRUCTIONS
- --------------------------------------------------------------------------------
Name:
- --------------------------------------------------------------------------------
Additional Name if Tenant in Common, Joint Tenant or Tenants by the Entireties
(see below): _________________
- --------------------------------------------------------------------------------
Mailing Address:
----------------------------------------------------------------
----------------------------------------------------------------
Social Security Number or other Taxpayer Identification Number:
----------------
Number of Shares to be registered in above name(s):
-----------------------------
Legal form of ownership:
___ Individual ___ Joint Tenants with Rights of Survivorship
___ Tenants in Common ___ Uniform Gift to Minors
___ Tenants by the Entirety ___ Other ______________________
(Husband and wife only)
INFORMATION AS TO BANKING INTERESTS
1. As a prospective shareholder I would be interested in the following services
checked below:
<TABLE>
<CAPTION>
PERSONAL BUSINESS
<S> <C> <C>
(a) Checking Account ___ ___
(b) Savings Account ___ ___
(c) Certificates of Deposit ___ ___
(d) Individual Retirement Accounts ___ ___
(e) Checking Account Overdraft Protection ___ ___
(f) Commercial Cash Management Services ___
(g) Consumer Loans (Auto, etc.) ___ ___
(h) Commercial Loans ___
(i) Equity Line of Credit ___ ___
(j) Commercial Mortgage Loans ___
(k) Residential Mortgage Loans ___ ___
(l) Revolving personal Credit Line ___ ___
(m) Safe Deposit Box ___ ___
(n) Automatic Teller Machines (ATM's) ___ ___
(o) Debit Card ___ ___
(p) Visa/MasterCard ___ ___
(q) Future Trust Services ___ ___
</TABLE>
2. I would like our new bank to provide the following additional services:
----------------------------------------------------------------------------
----------------------------------------------------------------------------
<PAGE> 67
FORM OF ACCEPTANCE
FLORIDA BUSINESS BANCGROUP, INC.
500 N. WESTSHORE BOULEVARD
SUITE 1000
TAMPA, FLORIDA 33609
Dear Subscriber:
Florida Business BancGroup, Inc. ("Company"), acknowledges receipt of your
order for _______ Units, each consisting of one Share of its $0.01 par value
Common Stock and one Warrant to purchase one share of Common Stock and your
check in the amount of $________________.
The Company hereby accepts your order for the purchase of _________ Units,
for an aggregate amount of $______________, effective as of the date of this
letter.
YOUR STOCK CERTIFICATE(S) REPRESENTING SHARES OF COMMON STOCK DULY
AUTHORIZED AND FULLY PAID ALONG WITH YOUR WARRANT CERTIFICATE WILL BE ISSUED TO
YOU AS SOON AS PRACTICABLE AFTER ALL SUBSCRIPTION FUNDS ARE RELEASED TO THE
COMPANY FROM THE SUBSCRIPTION ESCROW ACCOUNT, AS DESCRIBED IN THE UNIT ORDER
FORM EXECUTED BY YOU AND IN THE PROSPECTUS WHICH YOU HAVE BEEN FURNISHED. IN THE
EVENT THAT: (I) THE OFFERING IS CANCELED; OR (II) THE MINIMUM NUMBER OF
SUBSCRIPTIONS (700,000 UNITS) IS NOT OBTAINED; OR (III) THE COMPANY SHALL NOT
HAVE RECEIVED APPROVAL FROM THE FEDERAL RESERVE TO BECOME A BANK HOLDING
COMPANY; OR (IV) THE BANK SHALL NOT HAVE RECEIVED FINAL CHARTER APPROVAL FROM
THE FLORIDA COMPTROLLER AND APPROVAL FOR DEPOSIT INSURANCE FROM THE FEDERAL
DEPOSIT INSURANCE CORPORATION, YOUR SUBSCRIPTION FUNDS WILL BE RETURNED TO YOU,
TOGETHER WITH ANY PRO RATA PORTION OF INTEREST EARNED THEREON, IF ANY, AS
DESCRIBED IN THE PROSPECTUS.
If this acceptance is for a lesser number of Units than that number
ordered by you as indicated in your Unit Order Form, your payment for Units in
excess of the number of Units accepted hereby will be refunded to you by mail,
without interest, within ten (10) days of the date hereof.
Very truly yours,
FLORIDA BUSINESS BANCGROUP, INC.
By:
-----------------------------------
President & Chief Executive Officer
<PAGE> 68
================================================================================
No dealer, salesperson or other person has been authorized to give any
information or to make any representations, other than those contained in this
Prospectus, and, if given or made, such other information or representations
must not be relied upon as having been authorized by the Company. This
Prospectus does not constitute an offer to sell or an offer to buy, any
securities other than the Units to which it relates, or any offer of such Units
to any person in any state or other jurisdiction in which such offer is
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that there has been no
change in the affairs of the Company since the date hereof or that information
contained herein is correct as of any time subsequent to any of the dates as of
offers or sales are being made hereunder, the Company is required to update the
Prospectus to reflect any facts or events arising after the effective date of
the Registration Statement filed with the Securities and Exchange Commission
which represent a fundamental change in the information set forth in the
Registration Statement.
Until ___________ 1998, all dealers effecting transactions in the Units,
whether or not participating in this distribution, may be required to deliver a
Prospectus. This delivery requirements is in addition to the obligation of
dealers to deliver a Prospectus when acting as underwriters and with respect to
their unsold allotments or subscriptions.
-----------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Prospectus Summary........................................................
Risk Factors..............................................................
The Company...............................................................
Terms of the Offering.....................................................
Use of Proceeds...........................................................
Dividend Policy...........................................................
Management's Discussion and Analysis of Financial Conditions
and Results of Operations...............................................
Business of the Company...................................................
Business of the Bank......................................................
Regulation and Supervision................................................
Organizers and Principal Shareholders.....................................
Management................................................................
Articles of Incorporation -- Summary......................................
Legal Proceedings.........................................................
Legal Matters.............................................................
Experts...................................................................
Additional Information....................................................
Index to Financial Statements.............................................
Appendix A -- Articles of Incorporation
Appendix B -- Escrow Agreement
Appendix C -- Stock Order Form
</TABLE>
================================================================================
================================================================================
Minimum 700,000 Units
Maximum 1,500,000 Units
[LOGO]
FLORIDA BUSINESS BANCGROUP, INC.
a proposed Bank Holding Company for
Bay Cities Bank, Tampa, Florida
(a proposed State-Chartered Bank)
Each Unit consists of One Share of
Common Stock and One
Warrant to Purchase
Additional Common Stock
-----------------------------
PROSPECTUS
-----------------------------
November __, 1998
================================================================================
<PAGE> 69
PART-II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24: INDEMNIFICATION OF DIRECTORS AND OFFICERS
As provided under Florida law, the Company's Directors shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of duty of care or any other duty owed to the Company as a director,
unless the breach of or failure to perform those duties constitutes: (i) a
violation of criminal law, unless the director had reasonable cause to believe
his conduct was lawful, or had no reasonable cause to believe his conduct was
unlawful; (ii) a transaction from which the director received an improper
personal benefit; (iii) for unlawful corporate distributions; or (iv) an act or
omission which involves a conscious disregard for the best interests of the
Corporation or which involves willful misconduct; or (v) an act of recklessness
or an act or omission which was committed in bad faith or with malicious purpose
or in a manner exhibiting wanton and willful disregard of human rights, safety,
or property.
Article VII of the Company's Articles of Incorporation provides that the
Company shall indemnify its directors, officers, employees, and agents to the
fullest extent permitted by Florida law.
<PAGE> 70
ITEM 25: OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses expected to be incurred in
connection with the issuance and distribution of the securities being
registered, other than the underwriting discounts and commissions, if any. All
of the amounts shown are estimated except for the registration fees of the SEC.
<TABLE>
<S> <C>
SEC Registration Fees.......................................................... $ 8,850
Blue Sky Registration Fees & Expenses.......................................... 5,000
Legal fees and expenses........................................................ 20,000
Accounting Fees................................................................ 2,000
Printing and Engraving expenses................................................ 2,700
Miscellaneous.................................................................. 5,000
---------
Total................................................................... $ 43,550
=========
</TABLE>
ITEM 26: RECENT SALES OF UNREGISTERED SECURITIES.
During the organizational phase of the Company, and in order to meet the
net worth requirements of a Florida issuer, the Company issued 3,900 shares of
Preferred Stock in a private Offering to its directors for $100.00 per share.
<PAGE> 71
ITEM 27: EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<S> <C>
+3.1 Articles of Incorporation and Amended Articles of Incorporation of
Florida Business BancGroup, Inc.
3.2 By-Laws of Florida Business BancGroup, Inc.
4.1 Specimen Common Stock Certificate.
4.2 Specimen Warrant Certificate.
++4.3 Escrow Agreement with Independent Bankers' Bank of Florida.
4.4 Warrant Plan.
5.1 Opinion of Igler & Dougherty, P.A., regarding legality of shares.
*10.1 Employment Agreement between the Company and Timothy A. McGuire.
21.0 Subsidiaries of Florida Business BancGroup, Inc.
23.1 Consent of Igler & Dougherty, P.A.
23.2 Consent of Hacker, Johnson, Cohen & Grieb
24 Power of Attorney
27 Financial Data Schedule
99.1 Letter to Prospective Investor
+++99.2 Unit Order Form
</TABLE>
- --------------------
* To be filed supplementally
+ (Incorporated within as Appendix A of Prospectus)
++ (Incorporated within as Appendix B of Prospectus)
+++ (Incorporated within as Appendix C of Prospectus)
<PAGE> 72
ITEM 28. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (ss. 230.424[b] of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(c) The undersigned registrant hereby undertakes to supplement the
prospectus, after the expiration of the subscription period, to set forth the
results of the subscription offer, the transactions by the underwriters during
the subscription period, the amount of unsubscribed securities to be purchased
by the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwriters is to be made on terms different from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed to set forth the terms of such offering.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
<PAGE> 73
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Form SB-2 Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Tampa, State of
Florida, on September 29, 1998.
FLORIDA BUSINESS BANGROUP, INC.
By: /s/ A. Bronson Thayer
----------------------------------------------
A. Bronson Thayer
Chairman of the Board and
Chief Executive Officer
By: /s/ Timothy A. McGuire
----------------------------------------------
Timothy A. McGuire
Director, President, and Principal
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below, being a director of the Registrant (Florida Business Bancgroup, Inc.)
constitute and appoint A. Bronson Thayer and Timothy A. McGuire, or either of
them, as their true and lawful attorneys-in-fact and agents with capacities to
sign any or all amendments to the Form SB-2 Registration Statement of the
Registrant, and to file to the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and things requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as each might of
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ A. Bronson Thayer Chairman of the Board and Chief September 29, 1998
- ----------------------------------- Executive Officer
A. Bronson Thayer
/s/ Timothy A. McGuire Director, President, and Principal September 29, 1998
- ----------------------------------- Financial Officer
Timothy A. McGuire
/s/ Monroe E. Berkman Director September 29, 1998
- -----------------------------------
Monroe E. Berkman
/s/ John C. Bierley Director September 29, 1998
- -----------------------------------
John C. Bierley
/s/ Troy A. Brown, Jr. Director September 29, 1998
- -----------------------------------
Troy A. Brown, Jr.
Director September __, 1998
- -----------------------------------
Frank G. Cisneros
Director September __, 1998
- -----------------------------------
Lawrence H. Dimmitt, III
/s/ Eric M. Newman Director September 29, 1998
- -----------------------------------
Eric M. Newman
Director September __, 1998
- -----------------------------------
Chris A. Peifer
</TABLE>
<PAGE> 74
EXHIBIT INDEX
FORM SB-2
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Page
------ -------------
<S> <C> <C>
+3.1 Articles of Incorporation and Amended Articles of
Incorporation of Florida Business BancGroup, Inc.
3.2 By-Laws of Florida Business BancGroup, Inc.
4.1 Specimen Common Stock Certificate.
4.2 Specimen Warrant Certificate.
++4.3 Escrow Agreement with Independent Bankers'
Bank of Florida.
4.4 Warrant Plan.
5.1 Opinion of Igler & Dougherty, P.A., regarding legality of
shares.
*10.1 Employment Agreement between the Company
and Timothy A. McGuire.
21.0 Subsidiaries of Florida Business BancGroup, Inc.
23.1 Consent of Igler & Dougherty, P.A.
23.2 Consent of Hacker, Johnson, Cohen & Grieb
24 Power of Attorney
27 Financial Data Schedule
99.1 Letter to Prospective Investor
+++99.2 Unit Order Form
</TABLE>
- ------------------------------------
*To be filed supplementally
+ (Incorporated within as Appendix A of Prospectus)
++ (Incorporated within as Appendix B of Prospectus)
+++ (Incorporated within as Appendix C of Prospectus)
<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
FLORIDA BUSINESS BANCGROUP, INC.
ARTICLE I. MEETING OF SHAREHOLDERS
SECTION 1. ANNUAL MEETING. Unless otherwise determined by the Board of
Directors, the annual meeting of the shareholders for the election of Directors,
and for the transaction of such other business as may properly come before the
meeting, shall be held at the principal office of Florida Business BancGroup,
Inc. ("Corporation"), at 2:00 p.m., on the 3rd Tuesday of April following the
close of each fiscal year, if such day is not a legal holiday. If such day is a
legal holiday, the annual meeting will be held on the first following day that
is not a legal holiday or on such date and at such time chosen by the Board of
Directors. Failure to hold the annual meeting at the designated time shall not
work any forfeiture or a dissolution of the Corporation.
SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders of
the Corporation may be called by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of authorized directors (whether or
not there exist any vacancies in previously authorized directorships at the time
any such resolution is presented to the Board for adoption), the Chairman of the
Board or the President of the Corporation, or by shareholders holding ten (10%)
percent of the outstanding shares of the Corporation.
SECTION 3. PLACE OF MEETING. Unless otherwise directed by the Board of
Directors, meetings of the shareholders shall be held at the principal offices
of the Corporation in the State of Florida.
SECTION 4. NOTICE OF MEETING. Written notice stating the place, day and
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered to each shareholder
of record entitled to vote at such meeting not less than ten (10) nor more than
sixty (60) days before the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, the President and Chief Executive
Officer, the Secretary, or the officer or persons calling the meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
stock transfer books of the Corporation, with postage thereon prepaid.
SECTION 5. WAIVER OF NOTICE OF MEETING OF SHAREHOLDERS. Any notice
required to be given to any shareholder of the Corporation by law or under the
provisions of the Articles of Incorporation of the Corporation or these Bylaws
may be waived by a waiver in writing signed by the person or persons entitled to
such notice, whether before or after the time stated therein. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends the meeting for the express purpose of objectives, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or conveyed.
SECTION 6. NOTICE OF ADJOURNED MEETINGS. When a meeting is adjourned to
another time or place, it shall not be necessary to give any notice of the
adjourned meeting if the time and place
<PAGE> 2
to which the meeting is adjourned are announced at the meeting at which the
adjournment is taken, and any business may be transacted at the adjourned
meeting that might have been transacted on the original date of the meeting. If,
however, after the adjournment, the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given as
provided in Section 4 of these Bylaws to each shareholder of record on the new
record date entitled to vote at such meeting.
SECTION 7. CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE. For the
purpose of determining shareholders entitled to notice or to vote at any meeting
of shareholders or any adjournment thereof, or entitled to receive payment or
any dividend, or in order to make a determination of shareholders for any other
purpose, the Board of Directors may provide that the stock transfer books shall
be closed for a stated period but not to exceed, in any case, sixty (60) days.
If the stock transfer books shall be closed for the purpose of determining
shareholders entitled to notice or to vote at a meeting of shareholders, such
books shall be closed for at least ten (10) days immediately preceding such
meeting.
In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than sixty (60) days and, in
case of a meeting of shareholders, not less than ten (10) days prior to the date
on which the particular action, requiring such determination of shareholders is
to be taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or shareholders entitled to receive payment of dividend, the
date on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date for the adjourned meeting.
SECTION 8. VOTING RECORD. The officer or agent having charge of the
stock transfer books for shares of the Corporation shall make, at least ten (10)
days before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, with their address
and the number, class and series of shares, if any, held by each. Such list
shall be kept on file at the registered office of the Corporation, at the
principal place of business of the Corporation or at the office of the transfer
agent or registrar of the Corporation for a period of ten (10) days prior to
such meeting and shall be subject to inspection by any shareholder at any time
during normal business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
shareholder at any time during the meeting.
2
<PAGE> 3
If the requirements of this Section have not been substantially
complied with, the meeting shall be adjourned on the demand of any stockholder
in person or by proxy until the requirements are complied with. If no such
demand is made, failure to comply with the requirements of this Section shall
not affect the validity of any action taken at such meeting.
SECTION 9. SHAREHOLDER QUORUM AND VOTING. A majority of the shares
entitled to vote, represented in person or by proxy, shall constitute a quorum
at a meeting of shareholders. When a specified item of business is required to
be voted on by a class or series of stock, a majority of the shares of such
class or series shall constitute a quorum for the transaction of such item of
business by that class or series.
If a quorum is present, the affirmative vote of the majority of the
shares represented at the meeting and entitled to vote on the subject matter
shall be the act of the shareholders, unless the vote of a greater number or
voting by classes is required.
After a quorum has been established at a shareholders' meeting, the
subsequent withdrawal of shareholders, so as to reduce the number of shares
entitled to vote at the meeting below the number required for a quorum, shall
not affect the validity of any action taken at the meeting or any adjournment
thereof.
SECTION 10. VOTING OF SHARES. The holders of common stock shall possess
and exercise exclusive voting rights. Each outstanding share of common stock
shall be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders.
Treasury shares, shares of this Corporation's own stock owned by
another corporation, the majority of the voting stock of which is owned or
controlled by this Corporation, and shares of this Corporation's own stock held
by it in a fiduciary capacity shall not be voted, directly or indirectly, at any
meeting, and shall not be counted in determining the total number of outstanding
shares at any given time.
A shareholder may vote either in person or by proxy executed in writing
by the shareholder or his duly authorized attorney-in-fact.
At the election for directors, every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected at
that time and for whose election he has a right to vote.
Shares entitled to vote standing in the name of another corporations,
domestic or foreign, may be voted by the officer, agent, or proxy designated by
the Bylaws of the corporate shareholder. In the absence of any such designation,
or in case of conflicting designation by the corporate shareholders, the
Chairman of the Board, President, any Vice President, Secretary and Treasurer of
the corporate shareholder shall be presumed to possess, in that order, authority
to vote such shares.
3
<PAGE> 4
Shares entitled to vote held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares entitled to vote standing in the
name of a trustee may be voted by him, either in person or by proxy, but a
trustee shall not be entitled to vote shares held by him without a transfer of
such shares into his name.
Shares entitled to vote standing in the name of a receiver may be voted
by such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name, if authority
to do so is contained in an appropriate order of the court by which such
receiver was appointed.
A shareholder otherwise entitled to vote whose shares are pledged shall
be entitled to vote such shares until the shares have been transferred into the
name of the pledgee, and thereafter, the pledgee or his nominee shall be
entitled to vote the shares so transferred.
Shares shall not be entitled to vote on any matter and shall not be
deemed to be outstanding shares if on or after the date on which written notice
or redemption of redeemable shares has been mailed to the holders thereof and a
sum sufficient to redeem such shares has been deposited with a bank or trust
company with irrevocable instruction and authority to pay the redemption price
to the holders thereof upon surrender of certificates.
SECTION 11. PROXIES. Every shareholder entitled to vote at a meeting of
shareholders or the express consent or dissent without a meeting or his duly
authorized attorney-in-fact may authorize another person or persons to act for
him by proxy.
Every proxy must be signed by the shareholder or his attorney-in-fact.
No proxy shall be valid after the expiration of six (6) months from the date
thereof, unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided by
law.
The authority of the holder of a proxy to act shall not be revoked by
the incompetence or death of the shareholder who executed the proxy unless,
before the authority is exercised, written notice of an adjudication of such
incompetence or of such death is received by the corporate officer responsible
for maintaining the list of shareholders.
If a proxy for the same shares confers authority upon two or more
persons and does not otherwise require a majority of them to be present at the
meeting, or if only one is present then that one may exercise all the powers
conferred by the proxy; but if the proxy holders present at the meeting are
equally divided as to the right and manner of voting in any particular case, the
voting of such shares shall be prorated.
Any proxy holder may appoint in writing a substitute to act in his
place, if expressly provided for in the proxy.
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SECTION 12. VOTING TRUSTS. Any number of shareholders of this
Corporation may create a voting trust for the purpose of conferring upon a
trustee or trustees the right to vote or otherwise represent their shares, as
provided by law, for a period not to exceed five (5) years. Where the
counterpart of a voting trust agreement and the copy of the record of the
holders of voting trust certificates have been deposited with the Corporation,
the Corporation is to treat the shareholders of record as entitled to vote the
shares standing in their names.
A transferee of shares of this Corporation shall be bound by any such
shareholder's agreement if he takes the shares subject to such agreement with
notice thereof.
SECTION 13. SHAREHOLDERS' AGREEMENTS. Two or more shareholders of this
Corporation may enter into an agreement if in writing and signed by the parties
thereof, providing for the exercise of voting rights in the manner provided in
the Agreement, or as they may agree, or as determined in accordance with
procedures agreed upon by them. Nothing therein shall impair the right of the
Corporation to treat the shareholders of record as entitled to vote the shares
standing in their names.
A transferee of shares of this Corporation shall be bound by any such
shareholder's Agreement if he takes the shares subject to such Agreement with
notice thereof.
SECTION 14. SHAREHOLDER PROPOSALS AND NEW BUSINESS. To be considered
for inclusion in the proxy statement and proxy relating to the annual meeting of
shareholders, a shareholder proposal must be received by the Corporate Secretary
of the Corporation by no later than one hundred twenty (120) calendar days in
advance of the date (month and date) of the Corporation's proxy statement
released to shareholders in connection with the previous year's annual meeting,
except if no annual meeting was held in the previous year, such proposal must be
received by the Corporation at a reasonable time before a solicitation for the
upcoming annual meeting of shareholders is made.
A shareholder may place on the agenda certain new business to be
considered at an annual meeting, including the nominations for directors,
provided the shareholder has given proper written notice to the Corporate
Secretary of not less than ten business days before the time originally fixed
for such meeting.
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ARTICLE II. DIRECTORS.
SECTION 1. FUNCTION. All corporate powers shall be exercised by or
under the authority of the Board of Directors, and the business and affairs of
this Corporation shall be managed under the direction of the Board of Directors.
SECTION 2. QUALIFICATION. The directors are required to be shareholders
of this Corporation and must own directly or beneficially a minimum of 500
shares of the Company's common stock.
SECTION 3. COMPENSATION. The Board of Directors shall have authority to
fix the compensation of directors.
SECTION 4. DUTIES OF DIRECTORS. A director shall perform his duties as
a director, including his duties as a member of any committee of the Board upon
which he may serve, in good faith, in a manner he reasonably believes to be in
the best interests of the corporation, and with such care as an ordinarily
prudent person in a like position would use under similar circumstances.
In performing his duties, a director shall be entitled to rely on
information, opinions, reports or statements, including financial statements and
other financial data, in each case prepared or presented by:
(A). One or more officers or employees of the Corporation whom the
director reasonably believes to be reliable and competent in
the matters presented; or
(B). Counsel, public accountants or other persons as to matters
which the director reasonably believes to be within such
persons' professional or expert competence; or
(C). A committee of the Board upon which he does not serve, duly
designated in accordance with a provision of the Articles of
Incorporation or these Bylaws, as to matters within its
designated authority, which committee the director reasonably
believes to merit confidence.
A director shall not be considered to be acting in good faith if he has
knowledge concerning the matter in question that would cause such reliance
described above to be unwarranted.
A person who performs his duties in compliance with this section shall
have no liability by reason of being or having been a director of the
Corporation.
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SECTION 5. PRESUMPTION OF ASSENT. A director of the Corporation, who is
present at a meeting of its Board of Directors at which action on any corporate
matter is taken, shall be presumed to have assented to the action taken unless
he votes against such action or abstains from voting in respect thereto because
of an asserted conflict of interest.
SECTION 6. NUMBER. The business and affairs of the Corporation shall be
managed under the direction of the Board numbering not less than three (3)
members nor more than fifteen (15) members. The number of directors may be
increased or decreased from time to time by action of the Board of Directors,
but no decrease shall have the effect of shortening the terms of any incumbent
director. If the number of directors is changed, any increase or decrease in
directorships shall be so apportioned among the classes as to make all classes
as nearly equal in number as possible.
SECTION 7. ELECTION AND TERM. Directors shall be elected by a plurality
of the votes cast by the shares entitled to vote in the election at a meeting at
which a quorum is present. The term of the initial directors of the Corporation
expires at the first shareholders' meeting at which directors are elected. The
terms of subsequent directors shall expire in accordance with the expiration of
their Class.
SECTION 8. DIRECTOR COMMITTEES.
(A) The board of Directors may create one or more committees
and appoint members of the board of directors to serve on them. Each committee
must have three or more members, who shall serve at the pleasure of the board of
directors.
(B) The creation of a committee and appointment of members to
it must be approved by a majority of all the directors in office when the action
is taken.
(C) Each committee shall exercise those aspects of the
authority of the board of directors which the board of directors confers upon
such committee in the resolution creating the committee. Provided, however, no
committee may:
(I) authorize distributions including dividends;
(II) approve or propose to shareholders any action
that the Florida Business Corporation Act requires to be approved by
shareholders;
(III) fill vacancies on the board of directors or on
any of its committees;
(IV) adopt, amend, or repeal bylaws;
(V) approve a plan of merger not requiring shareholder
approval;
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(VI) authorize or approve any reacquisition of shares; or
(VII) authorize or approve the issuance or sale or
contract for sale of shares or determine the designation and relative
rights, preferences, and limitations of a class or series of shares.
SECTION 9. EXECUTIVE COMMITTEE. The board of directors by resolution
adopted by a majority of the full board, may designate five or more of its
members to constitute an executive committee and designate one of whom shall be
chairman. The designation of such committee and the delegation thereto of
authority shall not operate to relieve the board of directors, or any member
thereof, of any responsibility imposed by law.
(A) The executive committee shall have and may exercise all of
the authority of the board of directors except to the extent, if any, that such
authority shall be limited by these bylaws.
(B) Each member of the executive committee shall hold office
until the next regular annual meeting of the board of directors following his
designation or until his successor is designated, elected and qualified.
(C) Regular meetings of the executive committee may be held
without notice at such times and places as the executive committee may fix from
time to time by resolution. Special meetings of the executive committee may be
called by any member thereof upon not less than one day's notice stating the
place, date and hour of the meeting. Any member of the executive committee may
waive notice of any meeting and no notice of any meeting need be given to any
member who attends in person. The notice of a meeting of the executive committee
need not state the business proposed to be transacted at the meeting.
(D) Three members of the executive committee shall constitute a
quorum for the transaction of business at any meeting thereof, and action of the
executive committee must be authorized by the affirmative vote of a majority of
the members present at a meeting at which a quorum is present.
(E) Any action required or permitted to be taken by the
executive committee at a meeting may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
members of the executive committee.
(F) Any member of the executive committee may be removed at any
time with or without cause by resolution adopted by a majority of the full board
of directors. Any member of the executive committee may resign from the
executive committee at any time by giving written notice to the president or
secretary of the corporation, and unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
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(G) The executive committee may fix its own rules of procedure
which shall not be inconsistent with these Bylaws. It shall keep regular minutes
of its proceedings and report the same to the board of directors for its
information at the director's meeting held next after the proceedings have been
taken.
SECTION 10. ALTERNATE COMMITTEE MEMBERS. The Board of Directors, by
resolution adopted in accordance with this Section, may designate one or more
directors as alternate members of any committee, who may act in the place and
instead of any absent member or members at any meeting of such committee.
SECTION 11. VACANCIES. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors though less than a quorum of the Board of Directors. A director
elected to fill a vacancy shall hold office only until the next election of
directors by the shareholders.
SECTION 12. REMOVAL OF DIRECTORS. Directors may be removed for any
reason at a meeting of stockholders, noticed and called expressly for that
purpose, by a vote of the holders of not less than 66% of the shares then
entitled to vote at an election of directors; or
SECTION 13. DIRECTOR QUORUM AND VOTING. A majority of the number of
directors, fixed by these Bylaws, shall constitute a quorum for the transaction
of business. The act of the majority of the directors present at a meeting, at
which a quorum is present, shall be the act of the Board of Directors.
SECTION 14. DIRECTOR CONFLICTS OF INTEREST. No contract or other
transaction between this Corporation and one or more of its directors or any
other corporation, firm, association or entity in which one or more of its
directors are directors or officers or are financially interested, shall be
either void or voidable because of such relationship or interest or because such
director or directors are present at the meeting or the Board of Directors of a
committee thereof which authorized, approves or ratifies such contract or
transaction or because his or their votes are counted for such purpose, if:
(A). The fact of such relationship or interest is disclosed or
known to the Board of Directors or committee which authorizes,
approves or ratifies the contract or transaction by a vote or
consent; or
(B). The fact of such relationship or interest is disclosed or
known to the shareholders entitled to vote and they authorize,
approve or ratify such contract or transaction by vote or
written consent; or
(C). The contract or transaction is fair and reasonable as to the
corporation at the time it is authorized by the Board, a
committee, or the shareholders.
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Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves or ratifies such contract or transaction.
SECTION 14. TIME, NOTICE, AND CALL OF DIRECTORS' MEETINGS. Regular
meetings of the Board of Directors, if held, shall be held without notice at
such stated time as the Chairman of the Board, the President and Chief Executive
Officer of the Corporation, or any two directors shall direct.
Special meetings of the Board of Directors may be called at any time by
the Chairman of the Board, by the President and Chief Executive Officer of the
Corporation, or by any two directors. Written notice of the time and place of
special meetings of the Board of Directors shall be given to each director
either by personal delivery or by mail, telegram or facsimile at least two days
before the meeting.
Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
SECTION 15. WAIVER OF NOTICE. Notice of a meeting of the Board of
Directors need not be given to any director who signs a waiver of notice either
before or after the meeting. Attendance of a director at a meeting shall
constitute a waiver of notice of such meeting and waiver of any and all
objections to the place of the meeting, the time of the meeting, or the manner
in which it has been called or convened, except when a director states, at the
beginning of the meeting, any objection to the transaction of business because
the meeting is not lawfully called or convened.
SECTION 16. ADJOURNMENTS. A majority of the directors present, whether
or not a quorum exists, may adjourn any meeting of the Board of Directors to
another time and place. Notice of any such adjourned meeting shall be given to
the directors who were not present at the time of the adjournment and, unless
the time and place of the adjoined meeting are announced at the time of the
adjournment, to the other directors.
SECTION 17. PARTICIPATION BY CONFERENCE TELEPHONE. Members of the Board
of Directors of any committee thereof may participate in a meeting of such Board
or Committee by way of a conference telephone or similar communicating
equipment, provided all the participants at the meeting can hear each other at
the same time. Participation by such means shall constitute presence in person
at such meeting.
SECTION 18. ACTION WITHOUT A MEETING. Any action required by law to be
taken at a meeting of the directors of the Corporation, or any action which may
be taken at a meeting of the directors or a committee thereof, may be taken
without a meeting if a consent in writing, setting forth the action so to be
take, signed by all of the directors, or all of the members of the
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committee, as the case may be, is filed in the minutes of the proceedings of the
Board or the committee. Such consent shall have the same effect as a unanimous
vote.
ARTICLE III. OFFICERS
SECTION 1. OFFICERS, ELECTION AND TERMS OF OFFICE. The Principal
officers of this Corporation shall consist of a President and Chief Executive
Officer, and may consist of one or more Vice Presidents, a Secretary, a
Treasurer, and (at the discretion of the Board of Directors) a Chairman of the
Board, each of whom shall be elected by the Board of Directors at the first
meeting of directors immediately following the annual meeting of shareholders of
this Corporation; and shall hold their respective offices from the date of the
meeting at which elected until the time of the next succeeding meeting of the
Board following the annual meeting of the shareholders. The Board of Directors
shall have the power to elect or appoint, for such term as it may see fit, such
other officers and assistant officers and agents as it my deem necessary, and to
prescribe such duties for them to perform as it may deem advisable. Any two or
more offices may be held by the same person. Failure to elect a Chairman of the
Board, President, Vice President, Secretary or Treasurer shall not affect the
existence of the Corporation.
SECTION 2. REMOVAL OF OFFICERS. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board whenever, in its
judgment, the best interests of the Corporation will be served thereby.
Any officer or agent elected by the shareholders may be removed only by
vote of the shareholders, unless the shareholders shall have authorized the
directors to remove such officer or agent.
Removal of any officer shall be without prejudice to the contract
rights, if any, of the person so removed; however, election or appointment of an
officer or agent shall not of itself create contract rights.
SECTION 3. VACANCIES. Any vacancy, however occurring, in any office may
be filled by the Board of Directors.
SECTION 4. CHAIRMAN OF THE BOARD. At its discretion, the Board of
Directors may elect one of its members to serve as Chairman of the Board. The
Chairman of the Board shall coordinate and supervise the activities of all other
officers of the Corporation. The Chairman of the Board shall from time to time
call special meetings of the Board of Directors whenever he deems it necessary
to do so or whenever the requisite number of the members of the Board of
Directors shall request him in writing to do so. He or she shall preside at all
meetings of the shareholders and the Board of Directors and shall generally
perform such other duties as are delegated to him by the Board of Directors.
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SECTION 5. PRESIDENT AND CHIEF EXECUTIVE OFFICER. Except as otherwise
provided in these Bylaws, the President and Chief Executive Officer, subject to
the directions of and limitations imposed by the Board of Directors, shall
perform all the duties and have all the power usually pertaining and attributed
by law or otherwise to the office of the President and Chief Executive Officer
of the Corporation. He or she shall, in the absence of the Chairman of the
Board, preside at all meetings of the shareholders and the Board of Directors.
The President and Chief Executive Officer, unless some other person is thereunto
expressly authorized by resolution of the Board of Directors, shall sign all
certificates of stock, execute all contracts, deeds, notes, mortgages, bonds and
other instruments and papers in the name of the Corporation and on its behalf,
subject to the control of the Board of Directors. He or she shall, at each
annual meeting, present a report of the business and affairs of the Corporation,
and shall from time to time, whenever requested, report to the Board all matters
within his knowledge, which the interest of the Corporation may require to be
brought to the notice of the directors.
The President and Chief Executive Officer, after consultation with the
Board of Directors, shall have the power to employ and terminate the employment
of all such subordinate officers, agents, clerks and other employees not herein
provided to be selected by the Board, as he may find necessary to transact the
business of the Corporation, and shall have the right, after consultation with
the Board to fix the compensation thereof.
SECTION 6. VICE PRESIDENT. The Corporation may have one or more Vice
Presidents. Each Vice President shall have the powers and perform such duties as
may be delegated to him or her by the Board of Directors, or in the absence or
such action by the Board, then by the Chairman of the Board or by the President
and Chief Executive Officer. In case of the death, absence, or inability of the
President and Chief Executive Officer to act, except as may be expressly limited
by action of the Board of Directors, the Board of Directors shall designate a
Vice President and Chief Executive Officer following such death of the President
and Chief Executive Officer or during the absence or inability of the President
and Chief Executive Officer to act; and, in such case, concurrently with the
President and Chief Executive Officer, shall at all times have the power to sign
all certificates of stock, execute all contracts, deeds, notes, mortgages, bonds
and other instruments and documents in the name of the Corporation in its behalf
which the President and Chief Executive Officer is authorized to do, but subject
to the control and authority at all times of the Board of Directors.
SECTION 7. SECRETARY. The Secretary shall keep the minutes of all
meetings of the shareholders and the Board of Directors in a book or books to be
kept for such purposes, and also, when so requested, the minutes of all meetings
of committees in a book or books to be kept for such purposes. He or she shall
attend to the giving and serving of all notices, and he shall have charge of all
books and papers of the Corporation, except those hereinafter directed to be in
the charge of the Treasurer, or except as otherwise expressly directed by the
Board of Directors. He or she shall keep the stock certificate book or books.
The Secretary shall be the custodian of the seal of the Corporation. The
Treasurer shall sign with the President and Chief Executive Officer all
certificates of stock as the Treasurer of this Corporation and the Secretary
shall affix or cause
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to be affixed thereto the seal of the Corporation. The Secretary may sign as
Secretary of the Corporation, with the President and Chief Executive Officer in
the name of the Corporation and on its behalf, all contracts, deeds, mortgages,
bonds, notes and other papers, instruments and documents, except as otherwise
expressly provided by the Board of Directors, and as such Secretary he shall
affix the seal of the Corporation thereto. Under the direction of the Chief
Executive Officer, the Secretary shall perform all the duties usually pertaining
to the office of Secretary; and he shall perform such other duties as may be
prescribed by the Board of Directors or the President and Chief Executive
Officer.
SECTION 8. TREASURER. The Treasurer shall have the custody of all the
funds and securities of the Corporation except as may be otherwise provided by
the Board of Directors, and he shall make such disposition of the funds and
other assets of the Corporation as may be directed by the Board of Directors. He
or she shall keep or cause to be kept a record of all money received and paid
out, and all vouchers and receipt given therefor, and all other financial
transactions of the Corporation. The Treasurer shall have general charge of all
financial books vouchers and papers belonging to the Corporation or pertaining
to its business. He or she shall render an account of the Corporation's funds at
the first meeting of the Board of Directors immediately following the annual
meeting of shareholders of this Corporation and at such other meetings as he or
she may be requested, and he or she shall make an annual statement of the
finances of the Corporation. If at any time there is a person designated as
Comptroller of the Corporation, the Treasurer may delegate to such Comptroller
such duties and powers as to the Treasurer may seem proper. The Treasurer shall
perform such other duties as are usually incident by law or otherwise to the
office of the Treasurer, and as he or she may be directed or required by the
Board of Directors, the Chairman of the Board or the President.
ARTICLE IV. DIVIDENDS
The Board of Directors of this Corporation may, from time to time,
declare and the Corporation may pay dividends on its shares in cash, property or
its own shares, except when the Corporation is insolvent or when the declaration
or payment thereof would be contrary to any restrictions contained in the
Articles of Incorporation or contrary to any provision in the Florida Statutes,
subject to the following provisions:
(A). Dividends in cash or property may be declared and paid, except
as otherwise provided in this section, only out of the
unreserved and unrestricted earned surplus of the Corporation
or out of capital surplus, howsoever arising but each dividend
paid out of capital surplus shall be identified as a
distribution of capital surplus, and the amount per share paid
from such surplus shall be disclosed to the shareholders
receiving the same concurrently with the distribution.
(B). Dividends may be declared and paid in the Corporation's own
treasury shares.
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(C). Dividends may be declared and paid in the Corporation's own
authorized but unissued shares out of any unreserved and
unrestricted surplus of the Corporation upon the following
conditions:
(1) If a dividend is payable in shares having a par value, such
shares shall be issued at not less than the par value thereof
and there shall be transferred to stated capital at the time
such dividend is paid an amount of surplus at least equal to
the aggregate par value of the shares to be issued as a
dividend.
(2) If a dividend is payable in shares without par value, such
shares shall be issued at such stated value as shall be fixed
by the Board of Directors by resolution adopted at the time
such dividend is declared, and there shall be transferred to
stated capital at the time such dividend is paid an amount of
surplus at least equal to the aggregate stated value so fixed
in respect of such shares; and the amount per share so
transferred to stated capital shall be disclosed to the
shareholders receiving such dividend concurrently with the
payment thereof.
(D). No dividend payable in shares of any class shall be paid to the
holders of shares of any other class unless the Articles of
Incorporation so provide or such payment is authorized by the
affirmative vote or the written consent of the holders of at
least a majority of the outstanding shares of the class in
which the payment is to be made.
(E). A split or division of the issued shares of any class into a
greater number of shares of the same class without increasing
the stated capital of the Corporation shall not be construed
to be a share dividend within the meaning of this section.
ARTICLE V. STOCK CERTIFICATES
SECTION 1. ISSUANCE. Every holder of shares in this Corporation shall
be entitled to have a certificate, representing all shares to which he is
entitled. No certificate shall be issued for any share until such share is fully
paid.
SECTION 2. FORM. Certificates representing shares in this Corporation
shall be signed by the President and Chief Executive Officer and the Treasurer
and may be sealed with the seal of this Corporation or a facsimile thereof. The
signatures of the President and Chief Executive Officer and the Treasurer may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or a registrar, other than the Corporation itself or an employee of the
Corporation. In case any officer, who signed or whose facsimile signature has
been placed upon such certificate, is removed from or leaves office, the
certificate may be issued by the Corporation with the same effect as if he were
such officer at the date of its issuance.
Every certificate representing shares which are restricted as to the
sale, disposition or other transfer of such shares shall state that such shares
are restricted as to transfer and shall set forth
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or fairly summarize the restrictions upon the certificate, or shall state that
the Corporation will furnish to any shareholder upon request and without charge
a full statement of such restrictions.
Each certificate representing shares shall state upon the face thereof:
the name of the Corporation; that the Corporation is organized under the laws of
the State of Florida; the name of the person or persons to whom issued; the
number and class of shares; and the designation of the series, if any, which
such certificate represents.
SECTION 3. TRANSFER OF STOCK. Transfers of stock shall be made only on
the books of the Corporation upon surrender of the original certificate of stock
(as between the holder and the Corporation) by the holder, in person, or by an
attorney-in-fact under a power of attorney duly executed by the shareholder and
filed with the Secretary with written direction for the transfer, and the
payment of a $10.00 transfer fee and shall not be regarded as evidence of
ownership of the same in any person other than the registered owner until the
transfer thereof is duly made on the books of the Corporation. No transfer of
stock shall be valid against the Corporation until it has been effected and
registered upon the Corporation's books in the manner herein provided.
On the transfer of any shares, each certificate shall be receipted for
and such receipt shall be attached to the margin or stub of such certificate in
the certificate book. When such certificate is delivered by the Corporation by
registered or certified mail, such delivery shall be sufficient as the receipt
herein provided for. All certificates exchanged or surrendered to the
Corporation shall be cancelled by the Secretary and affixed in their original
places in the certificate book, and no new certificates shall be issued until
the certificate for which it is exchanged has been cancelled and returned to its
original place in said book, except as provided in Section 4 of this article
pertaining to lost or destroyed certificates.
If any holder of any stock of the Corporation has entered into an
agreement with any other holder of any stock of the Corporation or with the
Corporation, or both, relating to a sale or sales or transfer of any shares of
stock of the Corporation, or wherein or whereby any restriction or condition is
imposed or placed upon or in connection with the sale or transfer of any share
of stock of the Corporation, and if a duly executed or certified copy thereof
shall have been filed with the Secretary of the Corporation, none of the shares
of stock covered by such agreement or to which it relates, of any such
contracting shareholder, shall be transferred upon the books of the Corporation
until there has been filed with the Secretary of the Corporation evidence
satisfactory to the Secretary of the Corporation of compliance with such
agreement, and any evidence of any kind or quality of compliance with the terms
of such agreement which the Secretary deems satisfactory or sufficient shall be
conclusive upon all parties interested; provided, however, that neither the
Corporation nor any director, officer, employee or transfer agent thereof shall
be liable for transferring or effecting or permitting the transfer of any such
shares of stock contrary to or inconsistent with the terms of any such
agreement, in the absence of proof of willful disregard thereof or fraud, bad
faith or gross negligence on the part of the party to be charged; provided,
further, that the certificate of the Secretary, under the seal of the
Corporation, bearing the date of its issuance by the Secretary, certifying that
such an agreement is or is not on file with the
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Secretary, shall be conclusive as to such fact so certified for a period of five
(5) days from the date of such certificate, with respect to the rights of any
innocent purchaser or transferee for value of any such shares without actual
notice of the existence of any restrictive agreement.
SECTION 4. LOST CERTIFICATES. Any shareholder claiming a certificate of
stock to be lost or destroyed shall make an affidavit or affirmation to that
fact and affirm that he or she is the owner and holder thereof, give notice of
the loss or destruction of same in such manner as the Board of Directors may
require, and shall give the Corporation a bond of indemnity in form, and with
one or more sureties satisfactory to the Board of Directors, which shall be at
least equal to the book value of all the shares of stock represented by such
certificate, payable as may be required by the Board of Directors to protect the
Corporation and any person injured by the issuance of the new certificate from
any liability or expense which it or they may be put to or incur by reason of
the original certificate remaining outstanding; whereupon the President and the
Treasurer may cause to be issued a new certificate in the same tenor as the one
alleged to be lost or destroyed, but always subject to approval of the Board of
Directors.
ARTICLE VI. BOOKS AND RECORDS
SECTION 1. BOOKS AND RECORDS. This Corporation shall keep correct and
complete books and records of accounts and shall keep minutes of the proceedings
of its shareholders, Board of Directors and committees.
This Corporation shall keep at its registered office or principal place
of business, or at the office of its transfer agent or registrar, a record of
its shareholders, giving the names and addresses of all shareholders, and the
number, class and series, if any, of the shares held by each.
Any books, records and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable time.
SECTION 2. SHAREHOLDERS' INSPECTION RIGHTS. A shareholder of the
Corporation is entitled to inspect and extract during regular business hours, at
the Corporation's principal office, any of the corporate records described in
Section 607.160, Florida Statutes, if the shareholder gives written notice of
his or her demand at least five (5) business days before the date of inspection.
The written demand must state the purpose of the request. The Corporation may
impose a reasonable charge to cover the costs of labor and material for copies
of any documents provided to the shareholder. The charge may not exceed the
estimated cost of production or reproduction of the records.
SECTION 3. FINANCIAL INFORMATION. No later than four (4) months after
the close of each fiscal year, this Corporation shall prepare a balance sheet
showing in reasonable detail the financial condition of the Corporation as of
the close of its fiscal year, and a profit and loss statement showing the
results of its operations during its fiscal year.
16
<PAGE> 17
Upon the written request of any shareholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail to such
shareholder or holder of voting trust certificates a copy of the most recent
such balance sheet and profit and loss statement.
The balance sheets and profit and loss statements shall be filed in the
registered office of the Corporation in this state shall be kept for at least
five (5) years, and shall be subject to inspection during business hours by any
shareholder or holder of voting trust certificates, in person or by agent.
ARTICLE VII. SEAL
The seal of this Corporation shall be circular and shall have inscribed
thereon the name of the Corporation and such other words and figures and in such
design as may be prescribed by the Board of Directors, and may be facsimile,
engraved, printed or an impression or other type seal.
ARTICLE VIII. AMENDMENT OF BYLAWS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted, by the Board of Directors.
17
<PAGE> 18
CERTIFICATE OF ADOPTION
I hereby certify that the foregoing Bylaws were duly adopted pursuant
to action taken by the Board of Directors dated the _____ day of ______________.
/s/
--------------------------------------
Timothy A. McGuire
President and Chief Executive Officer
18
<PAGE> 1
EXHIBIT 4.1
NUMBER SHARES
000 1000
-------- ------
FLORIDA BUSINESS BANCGROUP, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF FLORIDA
COMMON STOCK
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS CERTIFIES THAT ____________________
is the owner of:
FULLY PAID AND NONASSESSABLE SHARES OF COMMON STOCK OF FLORIDA BUSINESS
BANCGROUP, INC.
$.01 PAR VALUE PER SHARE
The shares represented by this certificate are transferable only on the stock
transfer books of Florida Business BancGroup, Inc. by the holder of record
hereof, or by his duly authorized attorney or legal representative, upon the
surrender of this certificate properly endorsed. This certificate and the shares
represented hereby are issued and shall be held subject to all the provisions of
the Articles of Incorporation of Florida Business BancGroup, Inc. and any
amendments thereto (copies of which are on file with the Secretary of Florida
Business BancGroup, Inc.), to all of which provisions the holder by acceptance
hereof, assents. The shares evidenced by this certificate are not of an
insurable type and are not insured by the Federal Deposit Insurance Corporation.
IN WITNESS WHEREOF, Florida Business BancGroup, Inc. has caused this
certificate to be executed by the signature of its duly authorized officers and
has caused its corporate seal to be hereunto affixed.
Dated: ______________, 1998
SEAL
- ----------------------------------- --------------------------------------
President Secretary/Treasurer
<PAGE> 1
EXHIBIT 4.2
[ DEFINITIVE FORM OF WARRANT CERTIFICATE ]
CERTIFICATE NO. ____________ NUMBER OF WARRANTS:___________
WARRANT CERTIFICATE FOR PURCHASE OF
COMMON STOCK OF FLORIDA BUSINESS BANCGROUP, INC.
(See Reverse side for Summary of Terms of Warrant Plan)
THIS CERTIFIES THAT, for value received, _________________________, or
registered assigns, is the owner of the number of Warrants set forth above, each
of which entitles the owner to purchase, subject to the terms and conditions
hereof and of the Warrant Plan referred to herein, at any time after the date
hereof and prior to the Expiration Date (as herein defined), one share of Common
Stock, par value $0.01 per share ("Shares"), of Florida Business BancGroup,
Inc., a Florida corporation ("Company") at $10.00 per share ("Exercise Price"),
payable in cash, or by cashiers check or other official bank check, payable to
the Company. Warrants may be exercised by delivery and surrender of this Warrant
Certificate, along with the form of Election to Exercise on the reverse hereof
duly completed and executed together with payment of the Exercise Price at the
office of the Company or its duly appointed agent.
This Warrant Certificate and each Warrant represented hereby are issued
pursuant to and are subject to all of the terms, provisions and conditions of
that certain Warrant Plan dated as of _____________, 1998 (hereinafter called
the "Warrant Plan"), adopted by the Company, to all of which terms, provisions
and conditions the registered holder of this Warrant Certificate consents by
acceptance hereof. The Warrant Plan and the summary of its terms set forth on
the reverse side of this Warrant Certificate are hereby incorporated into this
Warrant Certificate by reference and made a part hereof. The Warrant Plan sets
forth the terms and conditions under which the exercise price for a Warrant, the
number of shares to be received upon exercise of a Warrant, or both, may be
adjusted. Reference is hereby made to the Warrant Plan for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Company and the holders of the Warrant Certificates or Warrants. In the
event of any conflict between the provisions of this Warrant Certificate and the
Warrant Plan, the provisions of the Warrant Plan shall control.
Copies of the Warrant Plan are available for inspection at the
Company's Office, or may be obtained upon written request addressed to the
Secretary, Florida Business BancGroup, Inc., 500 North Westshore Boulevard,
Suite 1000, Tampa, Florida 33609. The Company shall not be required upon the
exercise of the Warrants evidenced by this Warrant Certificate to issue
fractions of Warrants or Shares, but shall make adjustments therefor in cash on
the basis of the current market value of any fractional interest as provided in
the Warrant Plan.
The Warrants evidenced by this Warrant Certificate shall expire at 5:00
p.m. Eastern Standard time on _______________ or sooner if called by The Board
of Directors pursuant to the Warrant Plan. The day and time of expiration is
referred to herein as the "Expiration Date".
IN WITNESS WHEREOF, FLORIDA BUSINESS BANCGROUP, INC. has caused this
certificate to be executed by the signature of its duly authorized officers and
has caused its corporate seal to be hereunto affixed.
Dated: SEAL
- ------------------------------- ----------------------------------
President Secretary/Treasurer
<PAGE> 2
FLORIDA BUSINESS BANCGROUP, INC.
Summary of Terms of Warrant Plan
The Warrant Plan provides that, upon the occurrence of certain events,
the initial exercise price set forth on the face of this Warrant Certificate
may, subject to specified conditions, be adjusted (such exercise price, as
initially established or as adjusted from time to time, is referred to herein as
the "Exercise Price"). If the Exercise Price is adjusted, the Warrant Plan
provides that the number of shares which can be purchased upon the exercise of
each Warrant represented by this Warrant Certificate and the type of securities
or other property subject to purchase upon the exercise of each Warrant
represented by this Warrant Certificate are subject to modification or
adjustment.
The Warrants evidenced by this Warrant Certificate shall be exercisable
until 5:00 p.m. Local Time on ____________ or sooner if called in accordance
with the Warrant Plan.
In the event that upon any exercise the number of Warrants exercised
shall be fewer than the total number of Warrants represented hereby, there shall
be issued to the holder hereof or his assignee a new Warrant Certificate
evidencing the Warrants not so exercised.
No payment or adjustment will be made for any cash dividends, whether
paid or declared, on any shares issuable upon exercise of a Warrant. The Company
shall not be required to issue fractions of shares or any certificates which
evidence fractional shares. In lieu of a fractional share, if any, there shall
be paid to the registered holder of a Warrant with regard to which the
fractional share would be issuable, an amount in cash equal to the same fraction
of the current market value (as determined pursuant to the Warrant Plan) of a
share.
The Company may deem and treat the registered holder of this Warrant
Certificate as the absolute owner hereof and of the Warrants represented by this
Warrant Certificate (notwithstanding any notation of ownership or other writing
hereon made by anyone) for the purposes of any exercise of such Warrants and for
all other purposes, and the Company shall not be affected by any notice to the
contrary.
Prior to the exercise of the Warrants represented hereby, the
registered holder of this Warrant Certificate, shall not be entitled to vote on
or be deemed the holder of Common Stock or any other securities of the Company
which may at any time be issuable on the exercise hereof for any purpose, and
nothing contained in the Warrant Plan or herein shall be construed to confer
upon the holder of this Warrant Certificate, any of the rights of a stockholder
of the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action (whether upon any recapitalization, issue of
stock, reclassification of stock, change of par value or change of stock to no
par value, consolidation, merger, conveyance or otherwise) or to receive notice
of meetings or other actions, affecting stockholders or to receive dividends or
subscription rights or otherwise.
Upon surrender of this Warrant Certificate with the form of Assignment
below duly completed and executed, and subject to the transfer restrictions
contained in the Warrant Plan, a new Warrant Certificate or Certificates
representing the Warrants represented by this Warrant Certificate will be issued
to the transferee; provided, however, that if the registered holder of this
Warrant Certificate elects to transfer fewer than all Warrants represented by
this Warrant Certificate, a new Warrant Certificate for the Warrants not so
transferred will be issued to such registered holder. This Warrant Certificate,
together with other Warrant Certificates, may be exchanged by the registered
holder for another Warrant Certificate or Certificates of different
denominations, of the tenor and representing in the aggregate Warrants equal in
number to the same full number of Warrants represented by this Warrant
Certificate and any other Warrant Certificate so exchanged.
ELECTION TO EXERCISE
The undersigned hereby irrevocably elects to exercise ____________
Warrants evidenced by this Warrant Certificate, to purchase __________ full
shares of the Common Stock of the Company ("Shares") and herewith tenders
payment for such Shares in the amount of $_________ in accordance with the terms
hereof. The undersigned hereby acknowledges receipt of a Prospectus, including
amendments and supplements thereto relating to the Offering of the Common Stock
to be acquired in connection with this transaction. The undersigned requests
that a certificate representing such shares be registered in the name of
________________________________________ and that the Certificate be delivered
as follows:
<TABLE>
<S> <C>
--------------------------------------------------------------------------------
Name (Please Print)
Whose address is
--------------------------------------------------------------------------------
Address (Please Print)
--------------------------------------------------------------------------------
Delivery Address (if different) (Please Print)
</TABLE>
If said Shares are fewer than all the Shares purchasable hereunder, the
undersigned requests that a new Warrant Certificate evidencing the right to
purchase the balance of the Shares be registered in the name of the Holder,
whose address is listed below.
<TABLE>
<S> <C> <C>
--------------------------------------------------------------------------------
Name of Registered Holder of Warrant (Please Print)
--------------------------------------------------------------------------------
Address (Please Print)
--------------------------------------------------------------------------------
Delivery Address (if different) (Please Print)
- ------------------------------------------ --------------------------------------------------
Dated Signature
NOTE: The above signature must correspond with the
- ------------------------------------------ name as written upon the face of this Warrant
(Social Security or Other Taxpayer Certificate in every particular, without alteration
Identification Number of Holder) or enlargement or any change whatsoever. If the
holder hereof is hereby electing to exercise fewer
than all Warrants represented by this Warrant
Certificate and is requesting that a new Warrant
Certificate evidencing the Warrants not exercised be
registered in a name other than that in which this
Signature Guaranteed: Warrant Certificate is registered, the signature
of the holder of this Warrant Certificate must be
guaranteed.
- ------------------------------------------
</TABLE>
ASSIGNMENT
For value received, the Holder hereof hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
Name of Assignee
this Warrant Certificate, and all right, title and interest therein and to the
Shares represented thereby, and does irrevocably constitute and appoint
__________________________________________________________________ attorney, to
transfer said Warrant represented by Warrant Certificate number __________ on
the books of the Company, with full power of substitution in the premises.
<TABLE>
<S> <C>
- ------------------------------------------ -------------------------------------------------
Dated Signature
NOTE: The above signature must correspond with the
name as written upon the face of this Warrant
Certificate in every particular, without alteration
- ------------------------------------------ or enlargement or any change whatsoever.
(Social Security or Other Taxpayer
Identification Number of Holder)
Signature Guaranteed:
- ---------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 4.4
WARRANT PLAN ADOPTED BY THE COMPANY
ON___________________, 1998
<PAGE> 2
WARRANT PLAN
OF
FLORIDA BUSINESS BANCGROUP, INC.
===============================================================================
ARTICLE I
PURPOSE OF THE PLAN
The Board of Directors of Florida Business BancGroup, Inc. ("Company")
has determined that it is in the best interests of the Company to issue Warrants
to purchase the Company's Common Stock in connection with the Company's initial
public offering of Common Stock. The Company proposes to issue up to 1,500,000
shares of Common Stock and Warrants to purchase Common Stock in Units. Each Unit
will contain one share of Common Stock and one Warrant which will entitle the
holder thereof to purchase additional Common Stock. Therefore the Board of
Directors, in order to provide for the above, has adopted this Warrant Plan
("Plan") on the date set forth herein.
ARTICLE II
SCOPE OF THE PLAN
Section 1. Definitions. Unless the context clearly indicates otherwise,
the following terms have the meanings set forth below:
a. "Board" means the Board of Directors of the Company.
b. "Call Date" means the date established by the Board upon
which some or all of the Warrants must be exchanged for shares
and if not so exchanged upon which such Warrants shall expire.
c. "Common Stock" means the $0.01 par value common stock of
the Company.
d. "Expiration Date" shall be 5:00 p.m. Eastern Standard Time
on the third annual anniversary date of the date of the
Warrant Certificate or 5:00 p.m. on the Call Date, whichever
comes sooner.
e. "Plan" means this Warrant Plan as adopted by the Board as
set forth herein and as amended from time to time.
f. "Warrant" means the right to purchase additional shares of
Common Stock.
g. "Warrant Certificate" means the evidence of ownership of
Warrants, as executed and issued by the Company in
substantially the form attached hereto as Exhibit A.
Section 2. Warrants. There is hereby authorized 1,500,000 Warrants,
each of which shall be redeemable for one share of Common Stock of the Company.
Warrants shall be included
<PAGE> 3
only in Units offered by the Company in its Initial Stock Offering. Any Warrants
not issued in connection with the Initial Stock Offering shall automatically
expire. Warrants may be redeemed by the Board at anytime after their one year
anniversary.
Section 3. Call Option. The Board may call some or all of the Warrants
issued and outstanding anytime after the expiration of a 12 month period
following the date such Warrants are issued. Warrants may be called on a
pro-rata basis, or in their entirety, from all Warrant holders. If such action
is taken by the Board, each Warrant holder shall be given written notice thereof
and shall have 45 days from the date of such notice to present to the Company
the Warrants so called, along with payment therefore as required in Section 10
herein. Warrants not presented for exchange during this period shall expire at
5:00 p.m. on the 45th day following the date of such notice.
Section 4. Form of Warrants. The certificates evidencing the Warrants
(the "Warrant Certificates") shall be substantially in the form set forth in
Exhibit A attached hereto, and may have such letters, numbers or other marks of
identification or designation and such legends, summaries or endorsements
printed, lithographed or engraved thereon as the Company may deem appropriate
and as are not inconsistent with provisions of this Plan, or as may be required
to comply with any law, or with any rule or regulation made pursuant thereto, or
to conform to usage. Each Warrant Certificate shall entitle the registered
holder thereof, subject to the provisions of this Agreement and of such Warrant
Certificate, to purchase one fully paid and non-assessable share of Common Stock
for each Warrant evidenced by such Warrant Certificate, at $10.00 per share.
Section 5. Issuance of Warrants. The Warrant Certificates when issued
shall be dated and signed on behalf of the Company, manually or by facsimile
signature, by its Chairman of the Board or President, and by its Secretary or an
Assistant Secretary under its corporate seal, if any. The seal of the Company,
if any, may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Warrants.
Section 6. Registration of Warrant Certificates; Registered Owners. The
Company shall maintain or cause to be maintained books for registration of
ownership and transfer of ownership of the Warrant Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Warrant Certificates and the number of Warrants evidenced by each
such Warrant Certificate. The Company may deem and treat the registered holder
of a Warrant Certificate as the absolute owner thereof and of the Warrants
evidenced thereby (notwithstanding any notation of ownership or other writing
thereon made by anyone), for the purpose of any exercise of such Warrants and
for all other purposes, and the Company shall not be affected by any notice to
the contrary.
Section 7. Registration of Transfers and Exchanges. Warrants may be
transferred by a holder only in connection with the transfer of an equal number
of shares of Common Stock. The Company shall transfer from time to time, any
outstanding Warrants upon the books to be maintained by the Company for that
purpose, upon surrender of the Warrant Certificate evidencing such Warrants,
with the Form of Assignment duly filled in and executed and accompanied by a
Common Stock Certificate evidencing an equal number of shares to be transferred,
to the Company, at its office in Tampa, Florida at any time prior to the
Expiration Date. Upon receipt of a Warrant Certificate, with the Form of
Assignment duly completed and executed, the Company shall promptly deliver a
Warrant Certificate or Certificates representing an equal aggregate full number
of Warrants
2
<PAGE> 4
to the transferee; provided, however, in case the registered holder of any
Warrant Certificate shall elect to transfer fewer than all of the Warrants
evidenced by such Warrant Certificate, the Company in addition shall promptly
deliver to such registered holder a new Warrant Certificate or Certificates for
the full number of Warrants not so transferred.
Subject to Section 9 hereof, any Warrant Certificate or Certificates
may be exchanged at the option of the holder thereof for Warrant Certificates of
different denominations (subject to a minimum denomination of 100 warrants), of
like tenor and representing in the aggregate the same number of Warrants, upon
surrender of such Warrant Certificate or Certificates, with the Form of
Assignment duly completed and executed, on or prior to the Expiration Date.
The Company shall not effect any transfer or exchange which will result
in the issuance of a Warrant Certificate for a fraction of a Warrant.
Section 8. Mutilated, Destroyed, Lost or Stolen Warrant Certificates.
Upon receipt by the Company of evidence reasonably satisfactory to them of the
loss, theft, destruction or mutilation of any Warrant Certificate, and, in the
case of loss, theft or destruction, receipt by the Company of indemnity or
security reasonably satisfactory to them, and reimbursement to them of all
reasonable expenses incidental thereto, and, in the case of mutilation, upon
surrender and cancellation of the Warrant Certificate, the Company shall deliver
a new Warrant Certificate of like tenor representing in the aggregate the same
number of Warrants.
Section 9. Payment of Taxes. With respect to any Warrant, the Company
will pay all documentary stamp taxes attributable to the initial issuance of
shares of Common Stock upon the exercise of the Warrant; provided, however, that
the Company shall not be required to pay any tax or taxes which may be payable
in respect of any transfer involved in the issue of any Warrant or any
certificates for shares of Common Stock in a name other than that of the
registered holder of the Warrant or Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such Warrant or certificates unless or until the person or persons requesting
the issuance thereof shall have paid to the Company the amount of such tax if
any, or shall have established to the satisfaction of the Company that such tax
if required, has been paid.
Section 10. Exercise, Purchase Price and Duration of Warrants. Subject
to the provisions of this Agreement, the holder of a Warrant shall have the
right to purchase from the Company (and the Company shall issue and sell to that
holder) one fully paid and non-assessable share of Common Stock for each Warrant
at the initial exercise price of $10.00 per share (subject to adjustment as
provided in Section 12 hereof), upon the surrender of the Warrant Certificate
evidencing such Warrant Agent on any business day prior to 5:00 p.m. Eastern
Standard Time on the Expiration Date, with the Form of Election to Exercise on
the reverse thereof duly completed and executed, and payment of the Exercise
Price in lawful money of the United States of America in cash or by cashiers' or
certified check payable to the Company. The exercise price and the shares of
Common Stock issuable upon exercise of a Warrant shall be subject to adjustment
from time to time in the manner specified in Section 12 and, as initially
established or as so adjusted, are referred to herein as the "Exercise Price"
and the "Shares", respectively. The Warrants shall be so exercisable either as
an entirety or from time to time in part at the election of the registered
holder thereof except that the Company shall not be required to issue
certificates in denominations of less than 100 shares. In the event that fewer
than all Warrants evidenced by a Warrant Certificate are exercised at any time
3
<PAGE> 5
prior to 5:00 p.m. Eastern Standard Time on the Expiration Date a new Warrant
Certificate will be issued for the Warrants not so exercised.
No payments or adjustments shall be made for any cash dividends,
whether paid or declared, on Shares issuable on the exercise of a Warrant.
No fractional shares of Common Stock shall be issued upon exercise of a
Warrant, but, in lieu thereof, there shall be paid to the registered holder of
the Warrant Certificate evidencing such Warrant or other person designated on
the Form of Election to Exercise as soon as practicable after date of surrender,
an amount in cash equal to the fraction of the current market value of a share
of Common Stock equal to the fraction of a share to which such Warrant related.
For such purpose, the current market value of a share of Common Stock shall be
the book value of the Common Stock as of the last day of the month immediately
preceding the date of the Election to Exercise.
Subject to Section 9 hereof, upon surrender of a Warrant Certificate,
with the Form of Election to Exercise duly completed and executed, together with
payment of the Exercise Price, the Company shall issue and deliver the full
number of Shares issuable upon exercise of the Warrants tendered for exercise.
Shares shall be deemed to have been issued, and any person so designated by the
registered holder shall be deemed to have become the holder of record of a
Share, as of the date of the surrender of the Warrant Certificate to which the
Share relates and payment of the appropriate Exercise Price; provided, however,
if the date of surrender of a Warrant Certificate shall occur within any period
during which the transfer books for the Company's Common Stock are closed for
any purpose, such person shall not be deemed to have become a holder of record
of a Share until the opening of business on the day of reopening said transfer
books, and certificates representing such Shares shall not be issuable until
such day.
Section 11. Reservation of Shares. The Company will at all times
reserve and keep available, free from preemptive rights, out of the aggregate of
its authorized but unissued Common Stock, for the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Warrants, through the
close of business on the Expiration Date, the number of Shares deliverable upon
the exercise of all outstanding Warrants.
The Company covenants that all Shares issued upon exercise of the
Warrants will, upon issuance in accordance with the terms of this Agreement, be
fully paid and non-assessable.
The shares allocated for such Warrants were included for Registration
under the Securities Act of 1993, and Rule 415 adopted thereunder, in a
registration of securities filed by the Company with the Securities and Exchange
Commission on September 30, 1998.
Section 12. Adjustment of Exercise Price and Number of Shares
Purchasable. The Exercise Price and the number of Shares which may be purchased
upon the exercise of each Warrant are subject to adjustment from time to time
upon the occurrence, after the date hereof, if the Company shall (i) declare a
dividend on the Common Stock payable in shares of common stock, (ii) subdivide
the outstanding Common Stock into a greater number of shares or (iii) combine
the outstanding Common Stock into a smaller number of shares, then the Exercise
Price in effect on the record date for that dividend or on the effective date of
that subdivision or combination, and/or the number and kind of shares of capital
stock issuable on that date, shall be proportionately adjusted
4
<PAGE> 6
so that the holder of any Warrant exercised after such time shall be entitled to
receive solely the aggregate number and kind of shares of capital stock which,
if the Warrant had been exercised immediately prior to that date, such holder
would have owned upon exercise and been entitled to receive by virtue of that
dividend, subdivision, or combination. The foregoing adjustments shall be made
by the Company successively whenever any event listed above shall occur.
Section 13. Notices to Warrant Holders. Upon any adjustment to the
Exercise Price pursuant to Section 10 hereof, the Company within twenty calendar
days thereafter shall cause to be given to the registered holders of outstanding
Warrant Certificates at their respective addresses appearing on the Warrant
Certificate register written notice of the adjustments by first-class mail,
postage prepaid. Where appropriate, the notice may be given in advance and
included as a part of the notice required to be mailed under the other
provisions of this Section 12.
Section 14. Supplements and Amendments. The Company may from time to
time supplement or amend this Agreement without the consent or concurrence of or
notice to any holders of Warrant Certificates or Warrants in order to cure any
ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, to correct any defective
provision, clerical omission, mistake or manifest error herein contained, or to
make any other provision with respect to matters or questions arising under this
Agreement which shall not be inconsistent with the provisions of the Warrant
Certificates; provided that such action shall not adversely affect the interests
of the holders of the Warrant Certificates or Warrants. Other amendments to this
Agreement may be approved by a vote of at least 66 percent of the Company's
shares.
Section 15. Governing Law. This Plan and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Florida and for all purposes shall be governed by, construed and
enforced in accordance with the laws of said State.
Section 16. Benefits of This Plan. Nothing in this Plan shall be
construed to give to any person or corporation other than the Company and the
registered holders of the Warrant Certificates or Warrants any legal or
equitable right, remedy or claim under this Plan; this Plan shall be for the
sole and exclusive benefit of the Company and the registered holders of the
Warrant Certificates.
Adopted by the Board of Directors of Florida Business BancGroup, Inc.
on the ____th day of ___________, 1998.
ATTEST:
/s/
---------------------------------------
Timothy A. McGuire
President
5
<PAGE> 1
EXHIBIT 5.1
IGLER & DOUGHERTY, P.A.
Attorneys at Law
1501 PARK AVENUE EAST
TALLAHASSEE, FLORIDA 32301
--------
<TABLE>
<CAPTION>
Winter Park Office Tampa Office
------- ------
<S> <C> <C>
Federal Trust Bank Building (850) 878-2411 TELEPHONE Park Tower - Suite 2625
1211 Orange Avenue (850) 878-1230 FACSIMILE 400 North Tampa Street
Winter Park, Florida 32789 Tampa, Florida 33602
(407) 647-0822 - Telephone REPLY TO: TALLAHASSEE OFFICE (813) 307-0510 - Telephone
(407) 647-8089 - Facsimile (813) 307-0415 - Facsimile
</TABLE>
September 30, 1998
Board of Directors
Florida Business BancGroup, Inc.
500 North Westshore Boulevard
Suite 1000
Tampa, Florida 33609
Gentlemen:
You have requested our opinion in connection with the proposed stock
offering of up to 1,500,000 shares of Common Stock, par value $.01 per share
(the "Common Stock") by Florida Business BancGroup, ("Company") through a public
offering.
In preparation of this opinion, we have reviewed the Company's Articles
of Incorporation, its Bylaws, Registration Statement on Form SB-2 filed on
behalf of the Company with the Securities and Exchange Commission ("SEC") on
September 30, 1998, and all exhibits thereto (the "Registration Statement"). We
have also examined the originals or copies, certified or otherwise identified to
our satisfaction, of such documents and corporate and other records, have
obtained such certificates, letters, representations, and information from the
officers and directors of the Company and from others, and made such
examinations of law as we have deemed necessary. In connection with rendering
the opinions set forth below, we have assumed that the Company will conduct
business primarily in Florida.
Based upon the foregoing, it is our opinion that:
1. The Company has been duly organized and is validly existing in good
standing as a corporation under the laws of Florida, with corporate power and
authority to own its property and conduct its business as now conducted as
described in the Registration Statement;
2. The shares of Common Stock of the Company to be issued in accordance
with the terms set forth in the Prospectus constituting a part of the
Registration Statement are validly authorized and, when (a) the pertinent
provisions of the Securities Act of 1933 and such "blue-sky" and securities law
as may be applicable have been complied with, (b) the orders for such shares
have been properly accepted, and (c) such shares have been duly delivered
against payment therefore as contemplated by the Prospectus, such shares will be
validly issued, fully paid, and nonassessable.
<PAGE> 2
Board of Directors
September 30, 1998
Page 2
We understand that you may wish to include this Opinion as an exhibit
to the Registration Statement, and we consent to such inclusion. Furthermore, we
consent to the references to this firm's name in the Company's Prospectus and
any and all amendments thereto.
Sincerely,
/S/ IGLER & DOUGHERTY, P.A.
--------------------------------------
IGLER & DOUGHERTY, P.A.
<PAGE> 1
EXHIBIT 21
FLORIDA BUSINESS BANCGROUP, INC. SUBSIDIARIES
PARENT
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FLORIDA BUSINESS BANCGROUP, INC.
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SUBSIDIARY
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BAY CITIES BANK
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<PAGE> 1
EXHIBIT 23.1
IGLER & DOUGHERTY, P.A.
1501 PARK AVENUE EAST
TALLAHASSEE, FLORIDA 32301
CONSENT
We hereby consent to the references to this firm and our opinions in
the Form SB-2 Registration Statement filed by Florida Business BancGroup, Inc.
("Company"), and any amendments thereto regarding the issuance and registration
of shares of common stock by the Company.
IGLER & DOUGHERTY, P.A.
/s/ Igler & Dougherty
---------------------------------
September 28, 1998
<PAGE> 1
Exhibit 23.2
ACCOUNTANTS' CONSENT
Board of Directors
Florida Business BancGroup, Inc.
Tampa, Florida:
We consent to the use of our report dated September 29, 1998 relating to the
balance sheet as of June 30, 1998 and the related consolidated statements of
operations and cash flows for the period from May 18, 1998 (date of
incorporation) to June 30, 1998 and to the reference to our firm under the
caption "experts" in the Form SB-2 of Florida Business BancGroup, Inc.
/s/ Hacker, Johnson, Cohen & Grieb PA
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
September 29, 1998
<PAGE> 1
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, being a director of the Registrant (Florida Business Bancgroup,
Inc.) constitute and appoint A. Bronson Thayer and Timothy A. McGuire, or
either of them, as their true and lawful attorneys-in-fact and agents with
capacities to sign any or all amendments to the Form SB-2 Registration
Statement of the Registrant, and to file to the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and things requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as each might of could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or his substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ A. Bronson Thayer
- ------------------------------------------- Chairman of the Board and September 29, 1998
A. Bronson Thayer Chief Executive Officer
/s/ Timothy A. McGuire
- ------------------------------------------- Director, President, and September 29, 1998
Timothy A. McGuire Principal Financial Officer
/s/ Monroe E. Berkman
- ------------------------------------------- Director September 29, 1998
Monroe E. Berkman
/s/ John C. Bierley
- ------------------------------------------- Director September 29, 1998
John C. Bierley
/s/ Troy A. Brown, Jr.
- ------------------------------------------- Director September 29, 1998
Troy A. Brown, Jr.
- ------------------------------------------- Director September __. 1998
Frank G. Cisneros
- ------------------------------------------- Director September __, 1998
Lawrence H. Dimmitt, III
/s/ Eric M. Newman
- ------------------------------------------- Director September 29, 1998
Eric M. Newman
- ------------------------------------------- Director September __, 1998
Chris A. Peifer
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 9
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM SB-1
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FINANCIAL STATEMENTS
INCLUDED IN THAT DOCUMENT.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> MAY-18-1998
<PERIOD-END> JUN-30-1998
<CASH> 52
<INT-BEARING-DEPOSITS> 0
<FED-FUNDS-SOLD> 0
<TRADING-ASSETS> 0
<INVESTMENTS-HELD-FOR-SALE> 0
<INVESTMENTS-CARRYING> 0
<INVESTMENTS-MARKET> 0
<LOANS> 0
<ALLOWANCE> 0
<TOTAL-ASSETS> 52
<DEPOSITS> 0
<SHORT-TERM> 0
<LIABILITIES-OTHER> 80
<LONG-TERM> 0
0
0
<COMMON> 5
<OTHER-SE> (28)
<TOTAL-LIABILITIES-AND-EQUITY> 52
<INTEREST-LOAN> 0
<INTEREST-INVEST> 0
<INTEREST-OTHER> 0
<INTEREST-TOTAL> 0
<INTEREST-DEPOSIT> 0
<INTEREST-EXPENSE> 0
<INTEREST-INCOME-NET> 0
<LOAN-LOSSES> 0
<SECURITIES-GAINS> 0
<EXPENSE-OTHER> 28
<INCOME-PRETAX> (28)
<INCOME-PRE-EXTRAORDINARY> (28)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (28)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<YIELD-ACTUAL> 0
<LOANS-NON> 0
<LOANS-PAST> 0
<LOANS-TROUBLED> 0
<LOANS-PROBLEM> 0
<ALLOWANCE-OPEN> 0
<CHARGE-OFFS> 0
<RECOVERIES> 0
<ALLOWANCE-CLOSE> 0
<ALLOWANCE-DOMESTIC> 0
<ALLOWANCE-FOREIGN> 0
<ALLOWANCE-UNALLOCATED> 0
</TABLE>
<PAGE> 1
EXHIBIT 99.1
November ___, 1998
Dear Prospective Investor:
We are pleased to announce that Florida Business BancGroup, Inc., a
Florida corporation and parent of Bay Cities Bank ("Company"), is offering up to
1,500,000 units composed of one share of common stock and one warrant to
purchase one share of common stock. Florida Business BancGroup, Inc. is offering
the units at a price of $10.00 each unit to members of the general public. Net
offering proceeds will increase the capital of the Bank and support future
growth of the Bank.
We have enclosed the following materials which will help you learn more
about the merits of Florida Business BancGroup, Inc. as an investment. Please
read and review the materials carefully.
PROSPECTUS: This document provides detailed information about the
operations of Florida Business BancGroup, Inc. and a complete
discussion on the proposed Offering.
UNIT ORDER FORM & CERTIFICATION FORM: This form is used to purchase
units composed of one share of common stock and one warrant to purchase
one share of common stock by returning it with your payment in the
enclosed business reply envelope. The deadline for ordering common
stock is 5:00 p.m. Eastern Time _________, 1998.
We invite the Company's directors, employees, the local community and
members of the general public to become shareholders of Florida Business
BancGroup, Inc. Through this Offering you have the opportunity to buy Common
Stock without paying a commission or a fee.
If you have additional questions regarding the Offering, please call
(813) 282-7242.
Sincerely,
Timothy A. McGuire
THE UNITS SHARES OF COMMON STOCK BEING OFFERED ARE NOT SAVINGS ACCOUNTS OR
DEPOSITS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE
BANK INSURANCE FUND, THE SAVINGS ASSOCIATION INSURANCE FUND OR ANY OTHER
GOVERNMENTAL AGENCY. THIS IS NOT AN OFFER TO SELL OR A SOLICITATION OF AN OFFER
TO BUY STOCK. THE OFFER IS MADE ONLY BY THE PROSPECTUS.
<PAGE> 2
CERTIFICATE OF ADOPTION
I hereby certify that the foregoing Bylaws were duly adopted pursuant
to action taken by the Board of Directors dated the _____ day of ______________.
/s/
------------------------------------
Timothy A. McGuire
President and Chief Executive Officer
18
