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As filed with the Securities and Exchange Commission on September 30, 1998
Registration File No. 333-65101
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO
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 59-3517595
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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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AUSTIN CENTER WEST, TOWER II, 1408 NORTH WESTSHORE BOULEVARD,
SUITE 502, TAMPA, FLORIDA 33607
(Address, including zip code, and telephone number, including area code,
of Registrant principal executive offices)
A. BRONSON THAYER
CHAIRMAN, CHIEF EXECUTIVE OFFICER
Austin Center West, Tower II, 1408 North Westshore Boulevard, Suite 502
Tampa, Florida 33607
(813) 281-0009
------------------------
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
Each Class of Proposed Proposed
Securities to be Amount (1) Maximum Offering Maximum Aggregate Amount of Registration
Registered to be Registered Price Per Share Offering Price (2) 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) Common Stock is 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
WARRANT FOR THE PURCHASE OF ONE SHARE OF COMMON STOCK
Minimum: 700,000 Units -- Maximum: 1,500,000 Units
FLORIDA BUSINESS BANCGROUP, INC.
A Proposed Bank Holding Company
for
[LOGO] 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. In no event may the Offering
be extended beyond _____, 1999. 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."
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 5 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.
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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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The Date of this Prospectus is December ___, 1998.
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(Continuation of front cover)
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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 toward
resale. 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."
A MAP OF THE STATE OF FLORIDA IN THE SHAPE
OF THE STATE WITH A SMALL RECTANGULAR MAP
OF THE WESTSHORE AREA OF HILLSBOROUGH
COUNTY.
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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.
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), Austin Center West, Tower II, 1408 North
Westshore Boulevard, Suite 502, Tampa, Florida 33607.
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 for a limited period of time. 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 Expected Articles of Incorporation
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 Subscription Issued Under Warrant Plan and Directors'
- - 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"). The following persons organized the Company and are referred to as
the Organizers: John C. Bierley, Monroe E. Berkman, Troy A. Brown, Jr., Frank G.
Cisneros, Lawrence H. Dimmitt, III, Timothy A. McGuire, Eric M. Newman, Chris A.
Peifer, and A. Bronson Thayer. In order to fund the organizational and
pre-opening expenses of the proposed bank (estimated to be approximately
$400,000), the Organizers have advanced $390,000 to the Company in exchange for
the issuance of preferred stock by the Company of $390,000 in preferred stock
which is redeemable within one year after the release of subscription funds by
the Escrow Agent. The preferred stock pays a dividend at the sole discretion of
the Company and the Company intends to pay a dividend of 2% of the purchase
price within 30 days of the closing of the offering. Through September 30, 1998,
the Company has expended $72,471 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 Austin Center West, Tower II, 1408 North Westshore
Boulevard, Suite 502, Tampa, Florida 33607 and the Company's telephone number is
(813) 281-0009. See "THE COMPANY."
THE BANK
It is anticipated that the Bank will commence business operations sometime
during the first quarter of 1999, 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 complement
of loans, including commercial, consumer/installment and real estate loans. The
Organizers expect that commercial
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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 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 33607, for at least
the first 8 months of operation, and that the Bank's permanent facility will be
available for occupancy by October 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 of Common
Stock ("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 ............................... The Board has adopted a Warrant Plan
which permits the Company to issue up
to 1,500,000 Warrants in connection
with the Offering. 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 will expire 36
months from the Effective Date of
Registration, unless redeemed sooner
by the Company. The Warrants are
transferrable only in connection with
the transfer of a like number of
Shares. 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
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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 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, incentive stock options to purchase a
minimum of 34,444 shares of common stock pursuant to an 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 MATERIAL 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 has obtained "Key Man" life insurance on
the life of Mr. Timothy A. McGuire in the amount of$250,000. See "MANAGEMENT."
FAILURE TO RECEIVE REGULATORY APPROVALS/COMMENCE OPERATIONS; POSSIBLE PARTIAL
LOSS OF SUBSCRIPTION FUNDS
The Company must obtain final approval from both the Department and the
FDIC before it can open the Bank for business, but the Company expects to issue
Common Stock and expand a portion of the proceeds of this Offering before it has
obtained all final regulatory approvals. The Company has filed an application
with the FDIC and the Florida Department of Banking and Finance and will file an
application with the Federal Reserve. If these applications are approved,
approvals will contain certain conditions for opening the Bank. In the event
that all final approvals to commence banking operations are not granted, or if
for any reason the Bank does not commence operations within twelve months after
receipt of conditional approval by the Department, the Company will solicit
shareholder approval for its dissolution or liquidation. In a liquidation or
dissolution, the Organizers who purchased preferred stock will receive a
distribution preference and will be repaid their purchase price prior to any
distribution to purchasers of common stock. It is, therefore, likely that
subscribers will receive only a portion of their initial investment in the event
that the Bank is unable to commence operations. 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.
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
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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 AND POSSIBLE CONTROL OF THE COMPANY BY ORGANIZERS
The Organizers intend to purchase 305,000 Units in the Offering. These
purchases will represent 43.57% of the minimum of 700,000 Units required in
order to release subscription proceeds from the Subscription Escrow Account. 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, 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 all of the 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
toward resale. See "TERMS OF THE OFFERING - Purchases by Organizers of the
Company" and "ORGANIZERS AND PRINCIPAL SHAREHOLDERS."
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.
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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."
EFFECT OF PREFERRED STOCK
The Company's Articles of Incorporation, as amended, permit the Company to
issue preferred stock with such terms and rights as the Board of Directors may
determine in its discretion, including dividend, redemption payments, and
liquidation payments in preference to dividends or payments to common
stockholders. Such dividends or payments could reduce the book value or market
value of common shares. The Board has established a Series A preferred stock and
the Company has issued 3,900 shares of Series A preferred stock to the
Organizers at $100 per share to obtain capital to pay for pre-opening and
organizing expense. Series A preferred stock is redeemable at the option of the
Company, pays a dividend at the discretion of the Board of Directors, and has a
distribution preference in the event of liquidation of the Company. Although the
Company intends to issue a one-time dividend equal to 2% of the purchase price,
there can be no assurance that the Company will not issue further dividends to
series A preferred shareholders or that the Company will not designate and issue
other series of preferred stock with dividend, redemption or preferred
distribution rights. See "TERMS OF THE OFFERING Purchase by Organizers of the
Company" and "Articles of Incorporation Summary Preferred Stock."
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
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.
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 shares of Common Stock which the Company shall have the authority to issue is
10,000,000 shares of Common Stock. 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.
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.
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<PAGE> 11
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. Although the Company has no plans to engage an underwriter
to sell Units, the Company may engage an underwriter in the event that the
Offering Conditions have not been satisfied by February, 1999. Such an
engagement would substantially increase offering expenses. See "TERMS OF THE
OFFERING -- Other Terms."
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. See Organizers and Principal
Shareholders.
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.
YEAR 2000
Like many financial institutions, the Bank will rely upon computers for the
daily conduct of its business and for information systems processing. There is
concern among industry experts that on January 1, 2000, computers will be unable
to "read" the new year and there may be widespread computer malfunctions. While
the Company believe that it has available resources, and has adopted a plan, to
address Year 2000 compliance, the plan is largely dependent on third party
vendors. Vendors have informed the Company that their software is Year 2000
compliant or, if not, that they have adopted plans to ensure compliance.
Internal systems and software will be adequately programmed to address the Year
2000 issue. These systems will be tested to confirm that they will be Year 2000
compliant. Nevertheless, there is a risk that some hardware or software may not
be Year 2000 compliant, and the Company cannot, therefore, predict with any
certainty costs which might be incurred to respond to any Year 2000 issues.
Further, the business of many of the Bank's customers may be negatively
affected by the Year 2000 issue, and any financial difficulties incurred by the
Bank's customers in solving Year 2000 issues could negatively affect these
customers' ability to repay any loans which the Bank may have extended.
Therefore, even if the Bank does not incur significant direct costs in
connection with responding to the Year 2000 issue, there is a risk that the
failure or delay of customers or other third parties in addressing the Year 2000
issue or the costs involved in such process could have a material adverse effect
on the Bank's business, financial condition, or results of operations.
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
9
<PAGE> 12
Authority to Organize with the Department on September 8, 1998. 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 60 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 whom 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 33607. 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 Austin Center West, Tower II, 1408 North Westshore
Boulevard, Suite 502, Tampa, Florida 33607, and the Company's telephone number
is (813) 281-0009.
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. The Warrant Plan sets
forth the terms and conditions of the Warrants. The 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 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. at the main office, Suite
502, Austin Center West, Tower II, 1408 North Westshore Boulevard, Tampa,
Florida 33607, or at such other address established as the main office of the
Company of which the warrant holder is notified.
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.
10
<PAGE> 13
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 acceptance of 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 ___________, 1999
(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.
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
11
<PAGE> 14
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 __________,
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 appointment 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 $72,471, 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.
PURCHASES BY ORGANIZERS OF THE COMPANY
The Organizers have indicated they intend to purchase 305,000 Units in the
Offering. The Organizers may purchase all of the Shares in the Offering. 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 Company has issued an
additional 3,000 shares of redeemable preferred stock to organizers at a price
of $100,000 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 have a distribution preference above common stock in the event of a
dissolution of the Company. The preferred stock pays a dividend at the sole
discretion of the Company. The
12
<PAGE> 15
Company intends to declare a dividend of 2% of the purchase price of the
preferred stock within 30 days of the closing of the Offering.
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. The
Company, therefore, does not plan to engagement an underwriter to sell the
Units. However, in the event that the Offering Conditions have not been
satisfied by February 1, 1999, 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 10% 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, Austin Center West, Tower II, 1408 North
Westshore Boulevard, Suite 502, Tampa, Florida 33607, 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.
USE OF PROCEEDS
The gross proceeds from the sale of the minimum number of Units offered by
the Company are estimated to be $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."
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<PAGE> 16
The estimated Organizational and Offering expenses of the Company and the
Bank 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>
MAXIMUM PROCEEDS
MINIMUM PROCEEDS ASSUMING SALE OF
ASSUMING SALE % OF NET 1,500,000 % OF NET
700,000 SHARES PROCEEDS SHARES PROCEEDS
---------------- -------- ----------------- ---------
<S> <C> <C> <C> <C>
Purchase of capital stock of the Bank . . . $6,300,000 90.0% $13,000,000 86.7%
Organizational and Offering expenses of the
Company . . . . . . . . . . . . . . . . . . 100,000 1.4% 100,000 .6%
Working capital and funds available for
expansion of banking and banking-related
services. . . . . . . . . . . . . . . . . . 600,000 8.6% 1,900,000 12.7%
---------- ------ ----------- ------
Proceeds. . . . . . . . . . . . . . . . . . $7,000,000 100.0% $15,000,000 100.0%
========== ====== =========== ======
</TABLE>
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<PAGE> 17
The following table is a schedule of estimated expenditures to be made by
Bay Cities Bank out of the proceeds from the sale of its capital stock to the
Bank at minimum proceeds.
<TABLE>
<S> <C>
Organizational expenses of Bay Cities Bank, including application, legal and
consulting fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 30,000
Pre-opening expenses of Bay Cities Bank, including salaries, occupancy and
other expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270,000
Furniture, fixtures and equipment . . . . . . . . . . . . . . . . . . . . . . . 384,000
Cash, investments and other assets. . . . . . . . . . . . . . . . . . . . . . . 5,616,000
----------
Total uses of capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . $6,300,000
==========
</TABLE>
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
September 30, 1998, and as adjusted to give effect to the sale of a minimum of
700,000 shares and a maximum of 1,500,000 shares of common stock offered hereby,
at an assumed public offering price of $10.00 per share, net of estimated
offering expenses.
<TABLE>
<CAPTION>
ACTUAL AS ADJUSTED AS ADJUSTED FOR
SEPTEMBER 30, FOR MINIMUM MAXIMUM
1998 OFFERING OFFERING
------------- ----------- ----------------
(Dollars in Thousands)
<S> <C> <C> <C>
Stockholders' equity:
Preferred Stock, $0.01 par value, authorized and
unissued 2,000,000 shares $90 $ 390 $ 390
Common Stock, $.01 par value, 8,000,000 shares
authorized, none issued
(700,000 shares at the minimum offering and
1,500,000 shares at the maximum offering) - 7 15
Additional paid-in capital - 6,993 14,985
Accumulated deficit (72) (72) (72)
--- ------ -------
Total capitalization $18 $7,318 $15,318
=== ====== =======
</TABLE>
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
15
<PAGE> 18
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 has 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 September 30, 1998, the Company has expended
$72,471 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.
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 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
Energy Corp.). The Bank will occupy approximately 8,000 square feet on the
ground floor. The building is scheduled for occupancy in September, 1999.
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<PAGE> 19
BUSINESS OF THE BANK
GENERAL
Bay Cities Bank (the "Bank") seeks to be one of 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 on the way
services are delivered, more 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 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.
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 a population of 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
17
<PAGE> 20
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% population 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]
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<PAGE> 21
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>
Source: Sales and Marketing, Demographics USA 1997
TABLE II - SOUTHEASTERN POPULOUS METROS - 1996
<TABLE>
<CAPTION>
POPULATION NATIONAL RANK
---------- -------------
<S> <C> <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>
<CAPTION>
HOUSEHOLDS NATIONAL RANK
---------- -------------
<S> <C> <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
19
<PAGE> 22
The Bank will be located in the West Shore Business District of Tampa. The
West Shore Business District is the geographic 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 organizers 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 institutions, as well, new entrants to the market.
The following table provides details of the history of Bank and Thrift
(S&L) deposits in Hillsborough County:
[Table to Follow This Page]
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<PAGE> 23
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%
</TABLE>
Source: Florida Bankers Association
21
<PAGE> 24
BOARD OF DIRECTORS AND BOARD COMMITTEES
The Bank believes that its board is composed of high 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 mortgage liens to enable borrowers to purchase,
refinance, construct upon or improve real property. Consumer loans will include
collateralized and uncollateralized loans for financing automobiles, boats, home
22
<PAGE> 25
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 primary market 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 loans 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 will maintain an adequate allowance for
loan losses based on, among other things, industry standards, management's
23
<PAGE> 26
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.
OTHER PRODUCTS AND SERVICES
COURIER SERVICES. The Bank intends to offer a courier service to its
commercial customers. This service, which will either be provided directly or
through a third party, will allow the Bank to deliver convenience through the
scheduled pickup of deposits.
TELEPHONE AND PC BANKING. The Bank believes there is strong demand within
the market for telephone and PC banking. These services allow customers to
access account information, execute certain transactions and pay invoices
electronically. Both of these services will be provided through a third-party
vendor.
AUTOMATIC TELLER MACHINES ("ATMS"). The Bank does not intend to establish
an ATM network, as it believes its capital can be more efficiently deployed
elsewhere. However, the Bank does intend to make certain existing ATM networks
available to its customers and to offer customers a certain number of free
transactions each month.
The Bank intends to continually evaluate other financial services such as
trust services, insurance services, investment services, brokerage services and
all other permissible activities.
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.
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<PAGE> 27
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.
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 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.
The Bank intends to commence operations with a staff of fewer than 15
full-time equivalent employees. Management anticipates that the Bank will
increase its staff to 21 full-time equivalent employees during the second year
of operation in order to provide for anticipated growth.
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
25
<PAGE> 28
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 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.
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<PAGE> 29
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 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 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 affect 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
27
<PAGE> 30
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 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.
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<PAGE> 31
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" 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
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<PAGE> 32
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%) 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.
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 A. 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 applicable vesting period, for ten years from
the date of grant. See "MANAGEMENT - Executive Compensation."
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 Company has issued an
additional 3,000 shares of redeemable preferred stock to organizers at a price
of $100,000 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. The
preferred stock pays a dividend at the sole discretion of the Company. The
Company intends to declare a dividend of 2% of the purchase price of the
preferred stock within 30 days of the closing of the Offering.
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<PAGE> 33
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
BENEFICIAL PERCENT OF
NAME OF BENEFICIAL OWNER NUMBER OF SHARES(1) SHARES(2) MINIMUM(3) PERCENT OF 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 A. 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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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>
NAME POSITION WITH 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 A. 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.
32
<PAGE> 35
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 of
Art and is 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.
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
33
<PAGE> 36
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 A. 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 and 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
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
34
<PAGE> 37
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 who 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 their immediate
families. 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 the grant of
any stock option, with respect to all or some of the Shares covered under the
Plan. 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."
KEY-MAN LIFE INSURANCE
The Company has purchased "key-man" life insurance policy ("Policy")
insuring the life of Mr. McGuire in the amount of $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.
35
<PAGE> 38
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 3,900 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.
SPECIAL MEETING OF SHAREHOLDERS
A special meeting of the shareholders may be called by a resolution adopted
by a majority of the Board of Directors, the Chairman of the Board or the
President of the Company, or by shareholders holding at least 20% of the
outstanding shares of the Company.
INDEMNIFICATION
The Company's Articles provide for the indemnification of directors and
executive officers to the maximum extent permitted by Florida law.
PREFERRED STOCK
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 pre-opening expenses. Class A Preferred Stock is non-voting
stock which pay no mandatory dividend. The Company has issued an additional
3,000 shares of redeemable preferred stock to organizers at a price of $100.00
per share. The preferred stock is redeemable by the Company for the purchase 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. The preferred stock pays a
dividend at the sole discretion of the Company. The Company intends to declare a
dividend of 2% of the purchase price of the preferred stock within 30 days of
the closing of the Offering. 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.
ANTI-TAKEOVER PROVISIONS
The following sets forth a general summary of certain provisions of the
Company's Articles which may be deemed to have an "anti-takeover effect or
otherwise restrict sales of the Company's Common Stock." Despite the belief of
the Board of Directors of the Company that these restrictive provisions are in
the best interest of the shareholders, these provisions may have the effect of
discouraging a future takeover attempt which would not be
36
<PAGE> 39
approved by the Company's Board of Directors, but pursuant to which shareholders
might receive a premium for their Common Stock over current market prices or the
effect of precluding other corporate action that a majority of the shareholders
felt were in their best interest. As a result, shareholders who might desire to
participate in such a transaction may not have any opportunity to do so. Such
provisions may also render the removal of the Board of Directors of the Company
and management more difficult. Finally, certain restrictive provisions might
make it difficult or impossible to sell Common Stock to persons other than
existing shareholder or the Company or might delay such a sale to such an extent
as to cause a substantial hardship on the selling shareholder.
AUTHORIZED SHARES. The authorized shares of Common Stock were authorized in
an amount greater than that to be issued in this Offering to provide the
Company's Board of Directors with as much flexibility as possible to effect,
among other things, financing, acquisitions, stock dividends, stock splits and
employee stock option transactions. However, these additional authorized shares
may also be used by the Board of Directors consistent with its fiduciary duty to
deter future attempts to gain control of the Company. The Company's Board
currently has no plans for the issuance of any additional Preferred Common Stock
other than the issuance of shares of Common Stock in this Offering.
DIRECTORS. The Company's directors are divided into three classes, with the
term of office of the first class (Class I) to expire at the 1999 Annual Meeting
of Shareholders, the term of office of the second class (Class II) to expire at
the 2000 Annual Meeting, and the term of office of the third class (Class III)
to expire at the 2001 Annual Meeting. Any director, or the entire Board of
Directors, may be removed from office by the affirmative vote of the holders of
at least 60% of the voting power of all of the then outstanding shares of
capital stock of the Company entitled to vote generally in the election of
directors, voting together as a single class.
BUSINESS COMBINATIONS. The Articles require the affirmative vote or consent
of the holders of at least 66% of the shares of voting stock, voting together as
a single class, to approve any merger, consolidation, disposition of all or a
substantial part of the assets of the Company or a subsidiary of the Company,
exchange of securities requiring shareholder approval or liquidation of the
Company.
The Board of Directors of the Company, when evaluating any offer of another
"Person" (as defined in the Articles) to: (i) make a tender or exchange offer
for any equity security of the Company; (ii) merge or consolidate the Company
with another corporation or entity; or (iii) purchase or otherwise acquire all
or substantially all of the properties and assets of the Company, shall, in
connection with the exercise of its judgement in determining what is in the best
interest of the Company and its shareholders, give due consideration to all
relevant factors, including, without limitation: (1) the social and economic
effect of acceptance of such offer on the Company's present and future customers
and employees and those of its subsidiaries in the communities in which its
subsidiaries operate or are located; (2) on the ability of the Company to
fulfill its corporate objectives as a financial bank holding company; and (3) on
the ability of its subsidiary financial banks to fulfill the objectives of such
banks under applicable statutes and regulations.
AMENDMENT OF THE ARTICLES. Generally, amendments to the Articles must be
approved by a majority affirmative vote of its Board of Directors and also by a
majority of the outstanding shares of its voting stock. However, the affirmative
vote of 66% of the outstanding shares held by shareholders entitled to vote is
required to amend sections of the Articles which deal with Special Meetings of
Shareholders and Business Combinations.
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.
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.
37
<PAGE> 40
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]
38
<PAGE> 41
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 September 30, 1998 (unaudited) and June 30, 1998.................. F-3
Statements of Operations for the three months ended September 30, 1998
(unaudited), for the Period from May 18, 1998 (Date of
Incorporation) to June 30, 1998 and for the Period from May 18,
1998 (Date of Incorporation) to September 30, 1998 (unaudited)............ F-4
Statement of Stockholders' Equity for the Period from May 18, 1998 (Date of
Incorporation) to September 30, 1998 (unaudited).......................... F-5
Statements of Cash Flows for the three months ended September 30, 1998
(unaudited), for the Period from May 18, 1998 (Date of
Incorporation) to June 30, 1998 and for the Period from May 18,
1998 (Date of Incorporation) to September 30, 1998 (unaudited)............ F-6
Notes to Financial Statements as of June 30, 1998 and September 30, 1998
(unaudited) and for the three months ended September 30, 1998
(unaudited), for the Period from May 18, 1998 (Date of
Incorporation) to June 30, 1998 and for the Period from May 18,
1998 (Date of Incorporation) to September 30, 1998 (unaudited)............ F-7 - F-8
</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> 42
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 statements 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.
HACKER, JOHNSON, COHEN & GRIEB PA
Tampa, Florida
September 29, 1998
F-2
<PAGE> 43
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, JUNE 30,
1998 1998
-------------- ---------
(UNAUDITED)
<S> <C> <C>
ASSETS
Cash......................................................... $ 13,474 51,637
Deposit...................................................... 4,055 -
-------- --------
Total................................................ $ 17,529 51,637
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT)
Advances from organizers..................................... - 80,000
-------- --------
Stockholders' equity (deficit):
Preferred stock:
Designated Series A, $0.01 par value, redeemable at $100
per share, 1,000 shares, 900 issued and outstanding.... 90,000 -
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........................................ (72,471) (28,363)
-------- --------
Total stockholders' equity (deficit).................... 17,529 (28,363)
-------- --------
Total................................................... $ 17,529 51,637
======== ========
</TABLE>
See Accompanying Notes to Financial Statements.
F-3
<PAGE> 44
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
PERIOD FROM MAY 18, PERIOD FROM MAY 18,
1998 (DATE OF 1998 (DATE OF
THREE MONTHS ENDED INCORPORATION) TO INCORPORATION) TO
SEPTEMBER 30, 1998 JUNE 30, 1998 SEPTEMBER 30, 1998
------------------ -------------------- -------------------
(UNAUDITED) (UNAUDITED) -
<S> <C> <C> <C>
Income........................... $ - - -
--------- -------- --------
Salaries and employee benefits 19,483 14,353 33,836
Organizational costs............. 23,350 13,500 36,850
Other expenses................... 1,275 510 1,785
--------- -------- --------
Total expenses............. 44,108 28,363 72,471
--------- -------- --------
Net loss................... $ (44,108) (28,363) (72,471)
========= ======== ========
</TABLE>
See Accompanying Notes to Financial Statements.
F-4
<PAGE> 45
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENT OF STOCKHOLDERS EQUITY
FOR THE PERIOD FROM MAY 18, 1998 (DATE OF INCORPORATION)
TO SEPTEMBER 30, 1998
<TABLE>
<CAPTION>
DESIGNATED
SERIES A PREFERRED STOCK TOTAL STOCKHOLDERS'
------------------------ ACCUMULATED EQUITY
SHARES AMOUNT DEFICIT (DEFICIT)
------ ------ ----------- -------------------
<S> <C> <C> <C> <C>
Balance at May 18, 1998 (date of
incorporation)....................... - $ - - -
Net loss for the period ended
June 30, 1998........................ - - (28,363) (28,363)
--- ------- -------- --------
Balance at June 30, 1998............... - - (28,363) (28,363)
Conversion of advances from organizers
to 900 shares of designated Series A
preferred stock (unaudited).......... 900 90,000 - 90,000
Net loss for the three months ended
September 30, 1998 (unaudited)....... - - (44,108) (44,108)
--- ------- -------- --------
Balance at September 30, 1998
(unaudited).......................... 900 $90,000 (72,471) 17,529
=== ======= ======== ========
</TABLE>
See Accompanying Notes to Financial Statements.
F-5
<PAGE> 46
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Period from May 18, Period from May 18,
1998 (Date of 1998 (Date of
Three Months Ended Incorporation) to Incorporation) to
September 30, 1998 June 30, 1998 September 30, 1998
------------------ ------------------- -------------------
(unaudited) (unaudited)
<S> <C> <C> <C>
Cash flows used in administrative activities during the
development stage:
Net loss........................................... $(44,108) (28,363) (72,471)
--------- -------- --------
Cash flows from operating activities -
Increase in deposit................................ (4,055) - (4,055)
--------- -------- --------
Cash flows from financing activities -
Advances from organizers........................... 10,000 80,000 90,000
--------- -------- --------
Net increase in cash................................... (38,163) 51,637 13,474
Cash at beginning of period............................ 51,637 - -
--------- -------- --------
Cash at end of period.................................. $ 13,474 51,637 13,474
========= ======== ========
Supplemental disclosures of noncash investing
activities:
Conversion of advances from organizers
to 900 shares of designated Series A
preferred stock................................. 90,000 - 90,000
========= ======== ========
</TABLE>
See Accompanying Notes to Financial Statements.
F-6
<PAGE> 47
FLORIDA BUSINESS BANCGROUP, INC.
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
AS OF JUNE 30, 1998 AND SEPTEMBER 30, 1998 (UNAUDITED) AND FOR THE THREE
MONTHS ENDED SEPTEMBER 30, 1998 (UNAUDITED), FOR THE PERIOD FROM
MAY 18, 1998 (DATE OF INCORPORATION) TO JUNE 30, 1998 AND FOR THE
PERIOD FROM MAY 18, 1998 (DATE OF INCORPORATION) TO
SEPTEMBER 30, 1998 (UNAUDITED)
(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 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. 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
pre-opening 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 up to 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.
(6) 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> 48
APPENDIX A
ARTICLES OF INCORPORATION
AND
AMENDED ARTICLES OF INCORPORATION
<PAGE> 49
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> 50
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> 51
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> 52
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> 53
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> 54
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> 55
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> 56
APPENDIX B
ESCROW AGREEMENT
<PAGE> 57
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> 58
(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
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<PAGE> 59
(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> 60
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.
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<PAGE> 61
(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> 62
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> 63
APPENDIX C
UNIT ORDER FORM
<PAGE> 64
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> 65
- --------------------------------------------------------------------------------
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> 66
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> 67
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> 68
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> 69
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> 70
<TABLE>
<S> <C>
======================================= =======================================
NO DEALER, SALESPERSON OR OTHER
PERSON HAS BEEN AUTHORIZED TO GIVE
ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE MINIMUM 700,000 UNITS
CONTAINED IN THIS PROSPECTUS, AND, IF MAXIMUM 1,500,000 UNITS
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, LOGO
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 1999, ALL
DEALERS EFFECTING TRANSACTIONS IN THE
UNITS, WHETHER OR NOT PARTICIPATING
IN THIS DISTRIBUTION, MAY BE REQUIRED
TO DELIVER A PROSPECTUS. THIS
DELIVERY REQUIREMENT IS IN ADDITION
TO THE OBLIGATION OF DEALERS TO
DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS AND WITH RESPECT TO
THEIR UNSOLD ALLOTMENTS OR FLORIDA BUSINESS BANCGROUP, INC.
SUBSCRIPTIONS. a proposed Bank Holding Company for
- -------------------------------------- Bay Cities Bank, Tampa, Florida
(a proposed State-Chartered Bank)
TABLE OF CONTENTS
PROSPECTUS SUMMARY....................
RISK FACTORS..........................
THE COMPANY...........................
TERMS OF THE OFFERING................. EACH UNIT CONSISTS OF ONE SHARE OF
USE OF PROCEEDS....................... COMMON STOCK AND ONE
DIVIDEND POLICY....................... WARRANT TO PURCHASE
MANAGEMENT'S DISCUSSION AND ANALYSIS ADDITIONAL COMMON STOCK
OF FINANCIAL CONDITION 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 PROSPECTUS
APPENDIX B - ESCROW AGREEMENT ------------------
APPENDIX C - STOCK ORDER FORM
December ___, 1998
======================================= =======================================
</TABLE>
<PAGE> 71
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> 72
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> 73
ITEM 27: EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Page
-------- --------------
<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.
10.2 Lease Agreement for Temporary Office.
*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>
* Denotes previously EDGAR filed as part of this Registration Statement,
File No. 333-62101.
+ (Incorporated within as Appendix A of Prospectus)
++ (Incorporated within as Appendix B of Prospectus)
+++ (Incorporated within as Appendix C of Prospectus)
<PAGE> 74
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) (Section 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> 75
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to Form SB-2 Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, on this 24th
day of November, 1998.
FLORIDA BUSINESS BANCGROUP, INC
By: /s/ * Timothy A. McGuire
---------------------------------------------------
Timothy A. McGuire
Director, President and Principal Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to Form SB-2 Registration Statement has been signed by the following
persons in the capacities and as of the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------ --------------------------- -----------------
<S> <C> <C>
/s/ * Timothy A. McGuire Chairman of the Board and November 24, 1998
- ------------------------ Chief Executive Officer
A. Bronson Thayer
/s/ * Timothy A. McGuire Director, President, and November 24, 1998
- ------------------------ Principal Financial Officer
Timothy A. McGuire
/s/ * Timothy A. McGuire Director November 24, 1998
- ------------------------
Monroe E. Berkman
/s/ * Timothy A. McGuire Director November 24, 1998
- ------------------------
John C. Bierley
/s/ * Timothy A. McGuire Director November 24, 1998
- ------------------------
Troy A. Brown, Jr.
Director November __, 1998
- ------------------------
Frank G. Cisneros
Director November __, 1998
- ------------------------
Lawrence H. Dimmitt, III
/s/ * Timothy A. McGuire Director November 24, 1998
- ------------------------
Eric M. Newman
Director November __, 1998
- ------------------------
Chris A. Peifer
</TABLE>
* Pursuant to Power of Attorney filed September 30, 1998, authorizing
A. Bronson Thayer and Timothy A. McGuire, or either of them, as the true
and lawful attorneys-in-fact to sign all amendments to the Form SB-2
Registration Statement.
<PAGE> 76
EXHIBIT INDEX
FORM SB-2
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Numbered Page
-------- --------------
<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.
10.2 Lease Agreement for Temporary Office.
*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>
- ---------------------
* Denotes previously EDGAR filed as part of this Registration Statement,
File No. 333-62101.
+ (Incorporated within as Appendix A of Prospectus)
++ (Incorporated within as Appendix B of Prospectus)
+++ (Incorporated within as Appendix C of Prospectus)
<PAGE> 1
EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BY AND AMONG
FLORIDA BUSINESS BANCGROUP, INC.
AND
BAY CITIES BANK (IN ORGANIZATION)
AND
TIMOTHY A. MCGUIRE
THIS EMPLOYMENT AGREEMENT ("Agreement") is being entered into this day
of , 1998, by and among Florida Business BancGroup, Inc., a Florida
corporation ("BancGroup"), Bay Cities Bank, in Organization ("Bank"), and
Timothy A. McGuire ("Employes"). BancGroup and the Bank are collectively
referred to herein as the "Company", and the Company and Employee are
collectively referred to herein as the "Parties".
RECITALS
WHEREAS, the Company wishes to retain Employee as its President and as
Chief Executive Officer ("CEO") of Bank and President of BancGroup, to perform
the duties and responsibilities as are described in this Agreement and as the
Companys' Boards of Directors ("Board") may assign to Employee from time to
time; and
WHEREAS, Employee desires to be employed by the Company and to serve as the
President and Chief Executive Officer and President, as described above, in
accordance with the terms and provisions of this Agreement
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto represent, warrant, undertake,
covenant and agree as follows:
ARTICLE I.
TERM OF EMPLOYMENT
Company shall employ Employee and Employee shall be employed pursuant to
the terms of this Agreement to perform the services specified in Section 2
herein. The term of employment shall be for one year, commencing on ,
1998 (the "Effective Date"), and terminating , 1999, unless extended or
terminated pursuant to the provisions set forth herein. The Board of Directors
of BancGroup shall review this Agreement and Employee's performance hereunder on
or before , 1999, and annually thereafter, in order to determine
whether to extend the Agreement for a one-year period. The decision to extend
the term of this Agreement for an additional year is within the sole discretion
of the Board, provided that in the absence of notification by either Party
hereto to the other Party of non-extension days prior to the annual
termination date, this Agreement and all of its terms and conditions including
this one shall be automatically renewed for an additional one-year term.
EMPLOYMENT AGREEMENT -- Page 1
November 20, 1998
<PAGE> 2
ARTICLE II.
POSITION, RESPONSIBILITIES AND DUTIES
During the term of this Agreement, Employee shall serve in the following
capacities and shall fulfill the following responsibilities and duties:
SECTION 2.1. BANCGROUP. Employee shall serve as President and President of
BancGroup, subject to selection by the Board. In such capacity, Employee shall
provide leadership, direction and guidance of BancGroup's activities to assure
short and long-range profitability. Initially, Employee shall work diligently
in the formation of the Bay Cities Bank, a new state-chartered commercial bank
to be located in Tampa, Florida.
SECTION 2.2. BANK. Employee shall also serve as the Bank's President and
Chief Executive Officer when the Bank commences operations, subject to selection
by its Board. In such capacity, Employee shall have the same powers, duties and
responsibilities of supervision and management of the Bank usually accorded to
the President and Chief Executive, Officer of similar financial institutions. In
addition, Employee shall use his best efforts to perform the duties and
responsibilities enumerated in this Agreement and any other duties assigned to
Employee by the Board and to utilize and develop contacts and customers to
enhance the business of the Bank. Specifically, Employee shall devote his full
business time and attention and use his best efforts to accomplish and fulfill
the following duties and responsibilities, as well as other duties assigned to
Employee from time to time by the Board:
(i) manage all personnel of the Bank;
(ii) serve as a member of the Board of Directors (if and when elected
to such a position);
(iii) serve on such committees of the Board as appointed to from time to
time;
(iv) keep the Board informed of important developments concerning the
Bank, industry developments and regulatory initiatives affecting
the Bank;
(v) maintain adequate expense records relating to Employee's
activities on the Bank's behalf;
(vi) establish and implement marketing efforts to increase the business
of the Bank;
(vii) supervise all loans and assist in their proper servicing and
resolution;
(viii) improve the profitability of the Bank in accordance with the
Annual Business Plan as prepared by management and adopted by the
Board; and
(ix) coordinate with the Bank's attorneys and accountants and other
service providers to the extent necessary to further the business
of the Bank, keeping in compliance with government laws and
regulations and otherwise keeping the Bank in as good a financial
and legal posture as possible.
SECTION 2.3. POLICIES AND MANUAL. Employee agrees to comply with the
policies and procedures that are adopted by the Company and implemented from
time to time as will be described in the Employee Manual, including and policies
relating to a "drug free work place". In that regard Employee agrees to submit
to the same testing procedures, if any, which apply to all employees of the
Company. Employee has read and understands the contents of the
EMPLOYMENT AGREEMENT -- Page 2
November 20, 1998
<PAGE> 3
Employee manual and acknowledges that the Employee Manual may be modified,
amended, supplemented and updated from time to time as may be deemed
appropriate.
ARTICLE III.
COMPENSATION AND STOCK OPTIONS
During the term of this Agreement, Employee shall be compensated as
follows:
SECTION 3.1. BASE SALARY. Until the Bank commences operations, Employee
shall be compensated by BancGroup. Employee shall receive an annual salary of
Eighty Thousand Dollar ($80,000) (the "Base Salary") in bimonthly
installments, in accordance with standard payroll practices, reduced
appropriately by deductions for federal income withholding taxes, social
security taxes and other deductions required by applicable laws. Upon
commencement of the Bank's operations, the annual Base Salary shall be increased
to One Hundred and Twenty Thousand Dollars ($120,000). Such Base Salary shall
then be the minimum Base Salary hereunder and shall be reviewed annually by the
Board of Directors.
SECTION 3.2. OTHER BENEFIT PLANS. During the term of this Agreement, the
Employee will be entitled to participate in and receive the benefits of any
profit-sharing plans, 401(k) plans, deferred compensation plans, or other plans,
benefits and privileges given to employees and executives of the Company which
are currently in effect at the execution of this Agreement or which may come
into existence thereafter to the extent the Employee is otherwise eligible and
qualifies to so participate in and receive such benefits or privileges. Nothing
paid to the Employee under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the Base Salary payable
to the Employee pursuant to Section 3.1. herein.
SECTION 3.3. INCENTIVE STOCK OPTIONS. The Company will, designate Employee
as a key employee eligible for the grant of incentive stock options under the
Florida Business BancGroup, Inc. Stock Option Plan ("Stock Option Plan"). In
that connection, the Company will grant to Employee under the terms of the Stock
Option Plan, an option to acquire up to 50,000 shares of BancGroup common stock,
over a five-year period ranging from 30,000 shares if 7 million dollars in
capital is raised to 50,000 shares if 15 million dollars in capital is raised,
all in accordance with the detailed Stock Option Plan provided for officers and
directors of the BancGroup. The grant of the stock options shall be made
strictly in accordance with the terms of the Stock Option Plan and in accordance
with the Company's standard form of Stock Option Agreement. The options will
contain an exercise price of $10.00 per share. As part of the consideration for
the Stock Options. Employee agrees that for a period of one year following any
event of termination defined herein, Employee will not accept employment with
any existing or proposed business organization which then competes or intends to
compete with the Company in Hillsborough County.
This incentive Stock Option is exclusive of the 4,000 shares granted to
Employee as a Founding Director.
SECTION 3.4. VACATION. Employee shall be entitled each year to a vacation
in accordance with the personnel policy established by the Bank's Board of
directors, during which time Employee's compensation shall be paid in full.
EMPLOYMENT AGREEMENT -- Page 3
November 20, 1998
<PAGE> 4
ARTICLE IV.
MEDICAL, LIFE & DISABILITY COVERAGES
SECTION 4.1. MEDICAL BENEFITS. Employee is entitled to Participate in all
medical and health care benefit plans through health insurance, corporate
funds, medical reimbursement plans or other plans, if any, provided by the Bank
for its employees. Additionally, from date of employment, Company shall
reimburse Employee or pay for his current family health and dental insurance
coverage derived from his prior employment (under COBRA). This shall terminate
as soon as coverage is available through a comparable plan provided by Company.
SECTION 4.2. DISABILITY/ILLNESS. Employee shall be paid his full Base
Salary for any period of his illness or incapacity provided that such illness
or incapacity does not render Employee unable to perform his duties under this
Agreement for a period longer than three consecutive months. At the end of such
three-month period, the Bank may terminate Employee's employment and this
Agreement. If the Bank terminates this Agreement, due to Employee's disability,
the Bank shall pay to Employee as a disability payment, an amount equal to 100%
of Employee's monthly Base Salary for the first three months and 70% thereafter
for the remainder of the term of this Agreement. The disability payment shall
be payable in accordance with the Bank's standard payroll practices, commencing
on the effective date of Employee's termination for the disability and ending
on the earlier of: (i) the date of Employee returns to full time employment in
his capacity as the Bank's President; (ii) Employee's full time employment by
another financial institution; or (iii) the date of Employee's death.
The Company may satisfy its obligations under this Section, at its option,
through the purchase of disability insurance. The provisions of such policy
will control the amounts paid to Employee.
SECTION 4.3. CONTINUATION OF COVERAGES. During any period of illness or
disability, the Bank will continue any other life, health and disability
coverages for Employee substantially identical to the coverages maintained
prior to Employee's termination for disability. Such coverages shall cease upon
the earlier of: (i) Employee's full time employment by another financial
institution; (ii) one year after the date of such termination (with the
exception of disability insurance coverage); or (iii) the date of Employee's
death.
SECTION 4.4. DEATH DURING EMPLOYMENT. In the event of Employee's
death during the term of this Agreement, the Company's obligation to Employee
shall be limited to the portion of Employee's compensation which would be
payable up to the first working day of the first month after Employee's death,
except that any compensation payable to Employee under any benefit plan
maintained by the Company will be paid pursuant to its terms.
ARTICLE V.
EXPENSES
SECTION 5.1. GENERAL. Employee is authorized to incur reasonable expenses
in performing his duties. The Company will reimburse Employee for authorized
expenses, according to the Company's established policies, promptly after
Employee's presentation of an itemized account of such expenditures.
SECTION 5.2. AUTOMOBILE. The Bank will provide Employee with an automobile
for transportation and use during Employee's term of employment. The make and
model will be one that is mutually agreeable to the Board and Employee. All
expenses, insurance and upkeep of the automobile will be borne by the Bank.
Employee shall be responsible for
EMPLOYMENT AGREEMENT -- Page 4
November 20, 1998
<PAGE> 5
apportioning the time allocated for personal use for purposes of compliance
with the Internal Revenue Code of 1986, as amended.
SECTION 5.3. CLUB AND ORGANIZATION MEMBERSHIPS. The Bank will pay an
annual membership fee for the Employee to be a member at a business club and a
country club located in Tampa, Florida, as approved by the Board of Directors.
Employee shall comply with all applicable federal income tax laws and
regulations governing Employee's personal use of these memberships. Any
personal charges incurred will be paid direct to club by Employee. The Bank
will also pay Employee's membership costs in other clubs or organizations when
such membership will benefit the Bank as determined in advance by the Board of
Directors. Employee shall maintain records of both business and personal use of
such facilities and shall submit those records to the Bank monthly.
ARTICLE VI.
TERMINATION
SECTION 6.1. FAILURE OF BANK TO COMMENCE OPERATIONS. In the event the Bank
fails to commence operations for any reason on or before March 31, 1999, this
Agreement may be terminated by BancGroup upon 30 days written notice to
Employee.
SECTION 6.2. ILLNESS, INCAPACITY OR DEATH. This Agreement shall terminate
upon Employee's illness, incapacity or death in accordance with the provisions
of Article IV herein.
SECTION 6.3. TERMINATION FOR JUST CAUSE. The Company shall have the right,
at any time, upon prior written notice of termination satisfying the
requirements of Article VII herein, to terminate the Employee's employment
hereunder, including termination for just cause. For the purpose of this
Agreement, termination for just cause shall mean any of the following acts
committed by Employee:
(i) Personal dishonesty;
(ii) Incompetence;
(iii) A pattern of socially unacceptable behavior;
(iv) Willful misconduct;
(v) Breach of fiduciary duty involving personal profit;
(vi) Intentional failure to perform stated duties;
(vii) Willful violation of any law, rule or regulation (other than
traffic violations or similar offenses) or any final
cease-and-desist order; or
(viii) Material breach of any provision of this Agreement.
For purposes of this Section, no act, or failure to act, on the Employee's
part shall be considered "willful" unless done, or omitted to be done, by him
not in good faith and without reasonable belief that his action or omission was
in the best interest of the Company; provided that any act or omission to act
by the Employee in reasonable reliance upon an opinion of counsel to the
Company shall no be deemed to be willful. In the event Employee is terminated
EMPLOYEE AGREEMENT -- Page 5
November 20, 1998
<PAGE> 6
for just cause. Employee shall have no right to compensation or other benefits
for any period after such date of termination.
SECTION 6.4. EFFECTIVE DATE OF TERMINATION. The termination of this
Agreement and Employee's employment shall be effective upon the delivery to
Employee of written notice or at such later time as may be specified in such
notice, and Employee shall immediately vacate the Bank premises on or before
such effective date.
SECTION 6.5. INVOLUNTARY TERMINATION. If the Employee is terminated by the
Company, other than for just cause, Employee's right to compensation and other
benefits under this Agreement shall be as set forth in Sections 6.8(i) and 6.9
herein. In the event the Employee is terminated in connection with a change in
control of the Company, Employee's right to compensation and other benefits
under this Agreement shall be as set forth in Sections 6.8(ii) and 6.9 herein.
SECTION 6.6. TERMINATION FOR GOOD REASON. Employee may terminate his
employment hereunder for good reason by giving written notice to the Board of
Directors or the Chairman thereof. For purposes of this Agreement, "good reason"
shall mean (i) a failure by the Company to comply with any material provision of
this Agreement, which failure has not been cured within 30 days after a notice
of such noncompliance has been given by the Employee to BancGroup or the
Company; or (ii) subsequent to a change in control as defined in Section 6.7
herein and without the Employee's express written consent, any of the following
shall occur: the assignment to the Employee of any duties inconsistent with the
Employee's positions, duties, responsibilities and status with BancGroup and the
Bank immediately prior to a change in control; a change in the Employee's
reporting responsibilities, titles or offices as in effect immediately prior to
a change in control of BancGroup or the Bank; any removal of the Employee from,
or any failure to re-elect the Employee to, any of such positions, except in
connection with a termination of employment for just cause, disability, death,
or removal pursuant to Sections 6.3 or 6.2 herein; a reduction in the Employee's
annual salary as in effect immediately prior to a change in control; the failure
of the Bank to continue in effect any bonus, benefit or compensation plan, life
insurance plan, health and accident plan or disability plan in which the
Employee is participating at the time of a change in control of BancGroup or the
Bank, or the taking of any action by BancGroup or the Bank which would adversely
affect the Employee's participation in or materially reduce the Employee's
benefits under any of such plans, or the transfer of the Employee to any
location outside of Hillsborough County, Florida or the assignment of
substantial duties to the Employee to be completed outside Hillsborough County,
Florida.
SECTION 6.7. CHANGE IN CONTROL. For purposes of this Agreement, a "change
in control" shall mean a change in ownership of stock in BancGroup or the Bank
whereby a person;
(i) Acquires more than 25% of any class of voting stock of BancGroup or
the Bank through direct or indirect ownership or proxy; or
(ii) Controls in any manner the election of a majority of the directors of
the Company.
SECTION 6.8. SEVERANCE PAYMENT.
(i) If the Employee shall terminate his employment for good reason as
defined Section 6.6 herein, or if the Employee is terminated by the
Company for other than just cause as defined in Section 6.3 herein,
then in lieu of any further salary payments to the Employee for
periods subsequent to the date of termination.
EMPLOYMENT AGREEMENT -- Page 6
November 20, 1998
<PAGE> 7
Employee shall be paid, as severance, an amount which would equal
Employee's total annual compensation for the remainder of the term
of the Agreement.
(ii) In the event Employee's employment is terminated as a result of a
change in control of BancGroup or the Bank, the Agreement Not to
Compete, Section 9.3. herein shall be limited to six months in the
event of such termination; and
(iii) Any payment under Section 6.8(i) and 6.8(ii) shall be made in one
lump sum payment or in substantially equal semi-monthly
installments on the fifteenth and last days of each month for the
remaining term of this Agreement as agreed to by the parties
hereto.
SECTION 6.9. ADDITIONAL SEVERANCE BENEFITS. Unless Employee is terminated
for just cause pursuant to Section 6.3 herein or because of illness, incapacity
or death pursuant to Section 6.2 herein, the Company shall maintain in full
force and effect, for the continued benefit of the Employee for the remaining
term of this Agreement, or one year (whichever is longer), all employee benefit
plans and programs in which the Employee was entitled to participate immediately
prior to the date of termination, provided, however, that the Employee's
continued participation is possible under the general terms and provisions of
such plans and programs. Further, the Company shall pay for the same or similar
benefits if such benefits are available to the employee on an individual or
group basis as a result of contractual or statutory provisions requiring or
permitting such availability including, but not limited to, health insurance
covered under COBRA.
SECTION 6.10. MITIGATION. Employee shall not be required to mitigate the
amount of any payment provided for in Sections 6.8(i) and 6.8(ii) of this
Agreement by seeking other employment.
ARTICLE VII.
SUSPENSION/TERMINATION PURSUANT TO REGULATORY ACTION
SECTION 7.1. SUSPENSION. If the Employee is suspended from office and/or
temporarily prohibited from participating in the conduct of the Banks affairs
pursuant to actions taken by the Florida Department of Banking and Finance,
("DOBF") or by notice served under Section 8(e)(3) or Section 8(g)(1) of the
Federal Deposit Insurance Act ("FDIA") (12 U.S.C. Section 1818[e][3] and Section
1818[g][1], the Bank's obligations under this Agreement shall be suspended as of
the date of service, unless stayed by appropriate proceedings. If the charges in
the notice are dismissed, the Bank may, in its discretion; (i) pay the Employee
all or part of the compensation withheld while its obligations under this
Agreement were suspended, and (ii) reinstate (in whole or in part) any of its
obligations which were suspended.
SECTION 7.2. PERMANENT PROHIBITION. If the Employee is removed from office
and/or permanently prohibited from participating in the conduct of BancGroup and
the Bank's affairs by an order issued by the DOBF or by an order issued under
Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C. Sections 1818[e][4]
and [g][1], all obligations of BancGroup and the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Employee as of the date of termination shall not be affected.
SECTION 7.3. DEFAULT UNDER FDIA. If the Bank is in default, as defined in
Section 3(x)(1) of the FDIA (12 U.S.C. Section 1813[x][1] to mean an,
adjudication or other official determination by an court of competent
jurisdiction, the appropriate federal banking agency or
EMPLOYMENT AGREEMENT -- Page 7
November 20, 1998
<PAGE> 8
other public authority pursuant to which a conservator, receiver or other legal
custodian is appointed for the Bank, all obligations; under this Agreement shall
terminate as of the date of default, but vested rights of the Employee and the
Bank as of the date of termination shall not be affected.
SECTION 7.4. GOLDEN PARACHUTE. Any payments made to the Employee pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with (12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder.
ARTICLE VIII.
NOTICES
SECTION 8.1. GENERAL. Employee shall have the right, upon prior written
notice of termination of not less than 30 days, to terminate his employment
hereunder. In such event, Employee shall have no right after the date of
termination to compensation or other benefits as provided in this Agreement,
unless such termination is for "good reason", as defined in Section 6.6 herein.
If the Employee provides a notice of termination for good reason, the date of
termination shall be the date on which the notice of termination is given.
SECTION 8.2. SPECIFICITY. Any termination of the Employee's employment by
the Company or by Employee shall be communicated by written notice of
termination to the other party hereto. For purposes of this Agreement, a "notice
of termination" shall mean a dated notice which shall: (i) indicate the specific
termination provision in the Agreement relied upon; (ii) set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
Employee's employment under the provision so indicated; and (iii) set forth the
date of termination, which shall be not less than 30 days nor more than 45 days
after such notice of termination is given, except in the case of termination of
the Employee's employment for just cause, in which case date of termination
shall be the date such notice of termination is given.
SECTION 8.3. DELIVERY OF NOTICES. All notices given or required to be given
herein shall be in writing, sent by United States first-class certified or
registered mail, postage, prepaid, by way of overnight carrier or by hand
delivery. If to the Employee (or to the Employee's spouse or estate upon the
Employee's death) notice shall be sent to Employee's last-known address, and if
to Employer, notice shall be sent to the Chairman of the Board at the main
office of BancGroup. All such notices shall be effective when deposited in the
mail if sent via first-class certified or registered mail, or upon delivery if
by hand delivery or sent via overnight carrier. The Parties, by notice in
writing, may change or designate the place for receipt of all such notices.
ARTICLE IX.
COMPETITIVE ACTIVITIES
SECTION 9.1. LIMITATION ON OUTSIDE ACTIVITIES. Employee agrees that during
the term of this Agreement except with the express consent of the Company's
Board(s), Employee will not, directly or indirectly, engage or participate in,
become a director of, or render advisory or other services for, or in connection
with, or become interested in, or make any financial investment in any firm,
corporation, business entity or business enterprise competitive with or to any
business of the Company; provided, however, that Employee shall not be precluded
or prohibited from owning passive investments, including investments in the
securities of other financial institutions, so long as such ownership does not
require Employee to devote other than minimal time to management or control of
the business or activities in which Employee has invested.
EMPLOYMENT AGREEMENT -- Page 8
November 20, 1998
<PAGE> 9
SECTION 9.2. MAINTENANCE OF TRADE SECRETS AND CONFIDENTIAL INFORMATION.
Employee shall use his best efforts and utmost diligence to guard and protect
all of the Company's trade secrets and confidential information. Employee shall
not, either during the term or after termination of this Agreement, for
whatever reason, use, in any capacity, or divulge or disclose in any manner, to
any Person, the identity of the Company's customers, or its customer lists,
methods of operation, marketing and promotional methods, processes, techniques,
system, formulas, programs or other trade secrets or confidential information
relating to the Company's business. Upon termination of this Agreement or
Employee's employment, for any reason, Employee shall immediately return and
deliver to the Company all records and papers and all matters of whatever
nature which bear trade secrets or confidential information relating to the
Company.
SECTION 9.3. AGREEMENT NOT TO COMPETE. Employee acknowledges that by
virtue of his employment with the Company, Employee will acquire an intimate
knowledge of the activities and affairs of the Company, including trade secrets
and other confidential matters. Employee, therefore, agrees that during the
term of this Agreement, and for a period of one year following the termination
of Employee's employment hereunder, Employee shall not become employed,
directly or indirectly, whether as an employee, independent contractor,
consultant, or otherwise, in the financial services industry with any business
enterprise or business entity, or person who competes or intends to compete
directly or indirectly with any office of the Company located in Hillsborough
County, Florida, or in any other Florida County where the Bank may have full
service branch office. Employee hereby agrees that the duration of the
anti-competitive covenant set forth herein is reasonable, and its geographic
scope is not unduly restrictive.
ARTICLE X.
REMEDIES FOR BREACH
SECTION 10.1. ARBITRATION. The Parties agree that, except for the specific
remedies for injunctive relief and other equitable relief contained in Sections
10.2 and 10.3 herein, any controversy or claim arising out of or relating to
this Agreement or any breach thereof, including, without limitation, any claim
that this Agreement or any portion thereof is invalid, illegal or otherwise
voidable, shall be submitted to binding arbitration before and in accordance
with the rules of the American Arbitration Association and judgment upon the
determination and/or award of such arbitrator may be entered in any court
having jurisdiction thereof; provided, however, that this clause shall not be
construed to permit the award of punitive damages to either party. The
prevailing party to said arbitration shall be entitled to an award of
reasonable attorney's fees. The venue of arbitration shall be in Hillsborough
County, Florida.
SECTION 10.2. INJUNCTIVE RELIEF. The Parties acknowledge and agree that the
services to be performed by Employee are special and unique and that money
damages cannot fully compensate the Company in the event of Employee's violation
of the provisions of Article IX of this Agreement. Thus, in the event of a
breach of any of the provisions of Article IX, Employee agrees that the Company,
upon application to a court of competent jurisdiction, shall be entitled to an
injunction restraining Employee from any further breach of the terms and
provision of Article IX. Should the Company prevail in an action seeking an
injunction restraining Employee, Employee shall pay all costs and reasonable
attorneys' fees incurred by the Company in and relating to obtaining such
injunction. Such injunctive relief may be obtained without bond and Employee's
sole remedy, in the event of the entry of such injunction, shall be the
dissolution of such injunction. Employee hereby waives any and all claims for
damages by reason of wrongful issuance of any such injunction.
EMPLOYMENT AGREEMENT -- Page 9
November 20, 1998
<PAGE> 10
SECTION 10.3. CUMULATIVE REMEDIES. Notwithstanding, any other provision of
this Agreement, the injunctive relief described in Section 10.2 herein and all
other remedies, provided for in this Agreement which are available to the
Company as a result of Employee's breach of this Agreement, are in addition to
and shall not limit any and all remedies existing at or in equity which may also
be available to the Company.
SECTION 10.4. GOVERNING LAW/VENUE. This Agreement shall be construed in
accordance with and governed by the laws of the State of Florida. Venue for any
litigation involving the Parties and their rights and obligations hereunder
shall be brought in any appropriate court in Hillsborough County, Florida.
ARTICLE XI.
MISCELLANEOUS
SECTION 11.1. ASSIGNMENT. This Agreement shall inure to the benefit of and
be binding upon the Employee, and to the extent applicable, his heirs, assigns,
executors, and personal representatives, and to the Company, and to the extent
applicable, its successors, and assigns, including, without limitation, any
person, partnership, or corporation which may acquire all or substantially all
of the Company's assets and business, or with or into which the Company may be
consolidated or merged, and this provision shall apply in the event of any
subsequent merger, consolidation, or transfer, unless such merger or
consolidation or subsequent merger or consolidation is a transaction of the type
which would result in termination under Sections 6.5 and 6.6 herein.
SECTION 11.2. AMENDMENT OF AGREEMENT. Unless as otherwise provided herein,
this Agreement may not be modified or amended except in writing signed by the
Parties.
SECTION 11.3. HEADINGS FOR REFERENCE ONLY. The headings of the Articles and
the Sections herein are included solely for convenient reference and shall not
control the meaning of the interpretation of any of the provisions of this
Agreement.
SECTION 11.4. SEVERABILITY. If any of the provisions of this Agreement
shall be held invalid for any reason, the remainder of this Agreement shall not
be affected thereby and shall remain in full force and effect in accordance
with the remainder of its terms.
SECTION 11.5. ENTIRE AGREEMENT. This Agreement and all other documents
incorporated or referred to herein, contain the entire agreement of the Parties
and there are no representations, inducements or other provisions other than,
those expressed in writing herein. This Agreement amends, supplants and
supersedes any and all prior agreements between the Parties. No modification,
waiver or discharge of any provision or any breach of this Agreement shall be
effective unless it is in writing signed by both Parties. A Party's waiver of
the other Party's breach of any provision of this Agreement, shall not operate,
or be construed, as a waiver of any subsequent breach of that provision or of
any other provision of this Agreement.
SECTION 11.6. WAIVER. No course of conduct by the Company or Employee and
no delay or omission of the Company or Employee to exercise any right or power
given under this Agreement shall: (i) impair the subsequent exercise of any
right or power; or (ii) be construed to be a waiver of any default or any
acquiescence in or consent to the curing of any default while any other default
shall continue to exist, or be construed to be a waiver of such continuing
EMPLOYMENT AGREEMENT -- Page 10
November 20, 1998
<PAGE> 11
default or of any other right or power that shall theretofore have arisen. Any
power and/or remedy granted by law and by this Agreement to any party hereto may
be exercised from time to time, and as often as may be deemed expedient. All
such rights and powers shall be cumulative to the fullest extent permitted by
law.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of
the day and year first written above.
FLORIDA BUSINESS BANCGROUP, INC. BAY CITIES BANK, IN ORGANIZATION
By: By:
----------------------------- ------------------------------
On behalf of the Board of Directors On behalf of the Board of Directors
- -------------------------------- ---------------------------------
Witness Witness
EMPLOYEE
- --------------------------------
- --------------------------------
Witness
EMPLOYMENT AGREEMENT -- Page 11
November 20, 1998
<PAGE> 1
EXHIBIT 10.2
SUBLEASE
AGREEMENT OF SUBLEASE made this 3 day of September, 1998, by and between
NovaCare, Inc. with offices at 1016 West Ninth Avenue, King of Prussia, PA
("Sublessor") and Florida Business BancGroup, a Florida corporation with offices
at 500 North Westshore Blvd. Suite 1000, Tampa, Florida
("Sublessee").
- -------------------------------------------------------------
W I T N E S S E T H :
WHEREAS, pursuant to a lease dated October 14, 1996, between Edgewood General
Partnership as landlord ("Prime Landlord") and Sublessor as tenant, attached
hereto as Exhibit "A" ("Prime Lease"), the Prime Landlord leased to Sublessor
approximately 3,041 square feet of office space known as Tower II, Austin Center
West located at 1408 North Westshore Boulevard, Suite 502, Tampa, Florida; and
WHEREAS, Sublessee desires to sublease approximately 3,041 square feet of said
premises from Sublessor.
NOW THEREFORE, the parties hereto agree as follows:
1. SUBLEASE
Sublessor hereby subleases to Sublessee, and Sublessee hereby hires and
subleases from Sublessor, on the terms, covenants and conditions hereinafter
provided, the Subleased Premises which the parties acknowledge and agree
contains approximately 3,041 rentable square feet.
2. TERM
The term of this Sublease shall commence on November 1, 1998 (the "Commencement
Date") and shall expire on October 1, 1999 (the "Termination Date") unless
sooner terminated by reason of or pursuant to any provision set forth herein or
in the Prime Lease.
1
<PAGE> 2
3. RENT
Sublessee shall pay Sublessor as rent hereunder Sixteen Dollars ($16.00) per
square foot. Sublessee shall pay the rent in equal monthly installments of four
thousand fifty-four and 66/100 dollars ($4,054.66).
4. USE
The Subleased Premises shall be used only for purposes allowed for in
the Prime Lease.
5. ASSIGNMENT
Sublessee shall not assign this Sublease nor sublet the Subleased Premises in
whole or in part; and shall not permit Sublessee's interest in this Sublease to
be vested in any third party by operation of law or otherwise.
6. ESCALATION
Not Applicable.
7. PRIME LEASE
This lease is subject and subordinate to the Prime Lease. Except as may be
inconsistent with the terms hereof, all the terms covenants and conditions in
the Prime Lease contained shall be applicable to this Sublease with the same
force and effect as if Sublessor were the tenant thereunder; and in case of any
breach hereof by Sublessee, Sublessor shall have all the rights against
Sublessee as would be available to the landlord against the tenant under the
Prime Lease if such breach were by the tenant thereunder.
8. SERVICES PROVIDED BY PRIME LANDLORD
Notwithstanding anything herein contained, the only services or rights to which
Sublessee is entitled hereunder are those to which Sublessor is entitled under
the Prime Lease and for all such services and rights, Sublessee will look to the
Prime Landlord under the Prime Lease.
9. SUBLESSEE'S OBLIGATIONS AND SUBLESSOR'S RIGHT TO PERFORM SUBLESSEE'S
OBLIGATIONS
Sublessee, with respect to the Subleased Premises, will duly and faithfully
observe all the terms and restrictions and perform all the obligations imposed
on Sublessor as
2
<PAGE> 3
tenant under the Prime Lease. Sublessor shall have the right (but not the
obligation) to take at the sole expense of Sublessee, any and all actions
required to be taken by the Sublessee pursuant to the provisions hereof or the
Prime Lease, but not timely taken by Sublessee which may be necessary to prevent
a default under or to assure complete compliance with the terms of this Sublease
or the Prime Lease. All costs and expenses incurred by Sublessor, including, but
not limited to, counsel fees, for any actions taken pursuant to this. Article 9
shall be payable by Sublessee, as additional rent, within five (5) days after
delivery of a statement of any such costs to Sublessee.
10. SUBLESSOR NOT LIABLE FOR DEFAULTS OF PRIME LANDLORD
Sublessor shall not be responsible, answerable, or liable to Sublessee for or by
reason of any defaults by the Prime Landlord as the landlord under the Prime
Lease.
11. SUBLESSEE NOT TO CAUSE DEFAULT
Sublessee shall neither do nor permit anything to be done which would cause the
Prime Lease to be terminated or forfeited by reason of any right of termination
or forfeiture reserved or vested in the landlord under the Prime Lease.
12. INDEMNITY FOR SUBLESSEE'S BREACH
Sublessee shall indemnify and hold Sublessor harmless from and against all
claims of any kind whatsoever by reason of any breach or default of this
Sublease on the part of Sublessee.
13. SECURITY
Sublessee has paid Sublessor on the execution and delivery of this Sublease the
sum of four thousand fifty-four and 66/100 dollars ($4,054.66) as security for
the full and faithful performance of the terms, covenants and conditions of this
Sublease on Sublessee's part to be performed or observed, including but not
limited to payment of rent and additional rent in default of for any sum which
Sublessor may expend or to be required to expend by reason of Sublessee's
default, including any damages or deficiency in reletting the Subleased
premises, in whole or in part, whether such damages shall accrue before or after
summary proceedings or other re-entry by Sublessor. If Sublessee shall fully and
faithfully comply with all the terms, covenants and conditions of this Sublease
on Sublessee's part to be performed or observed, the security or any unapplied
balance thereof shall be returned to Sublessee after the time fixed as the
expiration of the demised term and after the removal of Sublessee and surrender
of possession of the Subleased Premises.
3
<PAGE> 4
14. CONDITION OF SUBLEASED PREMISES
Sublessee hereby accepts the Subleased Premises in their current "as is"
condition. Upon the expiration or termination of the term of this Sublease,
Sublessee shall quit and surrender the Subleased Premises "broom clean," in the
same condition as on the Commencement Date damage not the fault of Sublessee and
ordinary wear and tear excepted. Sublessor makes no representations or
warranties as to the condition of the premises including electrical, mechanical,
and any other systems serving the Premises.
Sublessee shall not make any alterations, changes, etc. without the prior
written consent of Sublessor (which is further subject to the Prime Landlord's
approval).
15. SURRENDER OF PREMISES
Sublessee agrees that time shall be of the essence with respect to Sublessee's
obligation to surrender possession of the Subleased Premises to Sublessor upon
the termination of the term of this Sublease, and further agrees that in the
event that Sublessee does not promptly surrender possession of the Subleased
Premises to Sublessor upon such termination, Sublessor, in addition to any other
rights and remedies Sublessor may have against Sublessee for such holding over,
shall be entitled to bring summary proceedings against Sublessee, and Sublessee
agrees to reimburse Sublessor for Sublessor's damages, consequential as well as
direct, sustained by Sublessor by reason of such holding over including without
limitation, Sublessor's reasonable attorney's fees and disbursements incurred in
connection with the exercise by Sublessor of its remedies against Sublessee.
Consequently damages shall include but not be limited to: (a) Sublessor's costs
incurred as a result of Sublessor's costs incurred as a result of Sublessor's
inability to occupy the Subleased Premises including additional moving expenses
and increased construction costs, if any, relating to any improvements to the
Subleased Premises planned by Sublessor upon termination of this Sublease; and
(b) any amounts owed to the Prime Landlord for failure to surrender the premises
leased under the Prime Lease upon termination of the Prime Lease.
16. ENTIRE AGREEMENT
This Sublease constitutes the entire agreement between the parties hereto and no
earlier statements or prior written matter shall have any force or effect.
Sublessee agrees that it is not relying on any representations or agreements of
the other, except those contained in this Sublease. This Sublease shall not be
modified or canceled or amended except by written instrument subscribed by both
parties.
4
<PAGE> 5
17. SUCCESSORS
The covenants, conditions and agreements contained in this Sublease shall bind
and inure to the benefit of Sublessor and Sublessee and their respective
successors and their assigns.
18. NOTICES
Any notice required or desired to be given to any party hereto shall be given by
certified mail, return receipt requested, and be addressed to the parties hereto
at their address as set forth below:
If to Sublessor:
Attention: NovaCare, Inc.
With a copy to: 1016 West Ninth Avenue
King of Prussia, PA 19406
Attention: Cheryl M. Conley
If to Sublessee: Florida Business BancGroup, Inc.
(address)
(address)
Attention: Timothy A. McGuire
Sublessee shall, at all times during the term of this Sublease, send Sublessor
copies of all notices it receives for the Prime Landlord and any government
entity in connection with the Demised Premises and Sublessee's occupancy thereof
promptly upon sublessee's receipt thereof.
19. PRIME LANDLORD'S CONSENT
This Sublease is conditioned upon Sublessor's obtaining the Prime Landlord's
written consent to this Sublease. Sublessor will seek the Prime Landlord's
consent pursuant to the Prime Lease. If such consent is refused or if the same
is not obtained in writing within thirty (30) days after the date hereof, this
Sublease shall be null and void, of no force or effect and all sums that
Sublessee shall have paid or delivered hereunder to Sublessor shall be promptly
returned to Sublessee.
5
<PAGE> 6
20. BROKERS
Sublessee covenants, warrants, and represents that is has not dealt with any
broker in connection with this Sublease other than CLW Realty and Sublessor
agrees to pay the commission of said broker in accordance with a separate
agreement. Sublessee agrees to indemnify and hold Sublessor harmless from any
and all liability, damage, costs, expenses and fees (including attorneys' fees)
which Sublessor may incur or be required to pay as a result of Sublessee's
dealings with any broker other than CLW Realty or sublessee's breach of the
foregoing representation and warranty.
IN WITNESS WHEREOF, the parties hereto have caused this Sublease to be signed
and sealed as of the day and year first above written.
NOVACARE, INC.
--------------------------------
Sublessor
ROSS FORMAN
--------------------------------
By: Ross Forman
Director of Real Estate
Date: 9/03/98
TIMOTHY A. MCGUIRE
--------------------------------
Sublessee
By: Timothy A. McGuire
Date: 9/03/98
<PAGE> 7
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Prime Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Prime Lease
concerning further assignment or subletting. Lessor certifies that as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Prime Lease and that the Prime Lease has not been
amended or modified, except as expressly set forth in the foregoing Sublease.
Lessee, NovaCare, Inc. shall continue to be primarily responsible under the
Prime Lease and shall perform all obligations as required under said Prime
Lease.
Date: 9-3-98
---------------------------------------
Lessor: Edgewood General Partnership
---------------------------------------
By:
---------------------------------------
Title: As Agent For Edgewood Gen. Partnership
---------------------------------------
<PAGE> 8
EXHIBIT A
8
<PAGE> 9
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), lessor under the Master Lease hereby consents to the
foregoing Sublease without waiver of any restriction in the Master lease
concerning further assignment or subletting. Lessor certifies that as of the
date of Lessor's execution hereof Sublessor is not in default or breach of any
of the provisions of the Prime Lease has not been amended or modified except as
expressly set forth in the foregoing Sublease,
Date: ______________________________
Lessor:______________________________
By: ______________________________
Title: ______________________________
7
<PAGE> 10
FOR THE EXCLUSIVE USE OF THE AUSTIN COMPANIES
FOR
AUSTIN CENTER WEST PHASE II
LEASE AGREEMENT
THIS AGREEMENT, made and entered into at Tampa, Florida, on this 14 of
October, 1996 by and between EDGEWOOD GENERAL PARTNERSHIP party of the first
part, hereinafter called "Lessor", and NOVACARE, INC. party of the second part,
hereinafter called "Lessee."
WITNESSETH:
That Lessor, in consideration of the rentals hereinafter reserved and
the covenants, agreements, and conditions hereinafter undertaken by or imposed
upon Lessee, hereby leases, lets, and demises unto Lessee, and Lessee hereby
leases and hires from Lessor, that certain office space hereinafter described in
the building known as TOWER II, AUSTIN CENTER WEST located at 1408 North
Westshore Boulevard, Tampa, Florida (the "Building"). Said office space has a
street address of 1408 North Westshore Boulevard, Suite 502, Tampa, Florida, is
more particularly described in Exhibit "A" attached hereto and made a part
hereof, and hereinafter is referred to as the "Premises." The real property of
which the building and the Premises constitute a part, together with all
appurtenances thereto, is hereinafter referred to as the "Land."
The following expressed stipulations and conditions are made a part of
this Lease and are hereby assented to by Lessor and Lessee:
1. TERM. The initial term of this lease shall be for a period of Three
(3) years, commencing at midnight on *November 1, 1996, and ending at midnight
on October 1, 1999, both dates inclusive, for the agreed rental herein
stipulated, unless sooner terminated as hereinafter provided. Should the
Premises not be available for occupancy by the shown commencement date, the
lease term shall remain the same as shown with both the commencement and
expiration dates being adjusted as necessary. Lessee shall not be required to
pay rent for any period of time the Premises are not tenantable due to the
aforesaid delay. Lessor shall not be liable to Lessee for failure to have the
Premises ready for occupancy in a timely fashion.
* Lessee may take possession prior to November 1, 1996 and rent will be prorated
and billed accordingly.
2. RENTAL. Lessee promises and agrees to pay Lessor, at the offices of
the Lessor at P.O. Box 22197, Tampa, Florida, or at such other address and to
such other person as Lessor may from time to time designate in writing, as
annual rental for the Premises during the initial term of this Lease the sum
of --- SEE RENTAL SCHEDULE, PAGE 1A ---
_______________________________________________________________________ Dollars
($______________________________), due and payable monthly in advance, without
the demand or setoff, in equal monthly installments of --- SEE RENTAL SCHEDULE,
PAGE 1A --- ___________________________________________________________ Dollars
($______________________________), on the first day of each and every
calendar month during the term of this Lease. Should the term of this Lease
commence on any other day than the first day of a calendar month, there shall
be an appropriate adjustment of the monthly rental payment for said partial
months. As additional rental, Lessee covenants and agrees to pay to Lessor the
sum of --- SEE RENTAL SCHEDULE, PAGE 1A ---
_______________________________________________________________________ Dollars
($______________________________). In the event any monthly installment of
rental is not received by Lessor on or before the due date of such installment.
Lessee further agrees to pay to Lessor all sales, excise, and use taxes imposed
by law on the rental and additional rental payments under this Lease, said
taxes to be paid together with the installments and rental due hereunder.
Lessor will bill Lessee for the prepayment of Lessee's first and last month's
rent.
November 1, 1996 and Waived __________________________, 19____.
3. DEFAULT AND REMEDIES. Upon the happening of any of the following
events:
(a) Lessee's continued default in the payment of any rental or
other money payments due hereunder or any other money payment due Lessor under
any other agreement or contract, for a period of ten (10) days; or after the
date of mailing of a written notice od delinquency.
(b) Lessee's continued default in the performance or observance of
any of the other covenants or agreements herein contained for a period of
ten (10) days after the date of mailing written notice thereof by Lessor to
Lessee; or
(d) Lessee's voluntary petitioning for relief under or otherwise
seeking benefit of any bankruptcy, reorganization or insolvency law; or
(e) A receiver or trustee being appointed for Lessee or its
property, or
(f) the filing of an involuntary bankruptcy, arrangement or
reorganization petition against Lessee; or
(g) Lessee making an assignment for the benefit of creditors; or
(i) Lessee's interest under this Lease being sold under execution
or other legal process; or,
(j) Any transfer or assignment of Lessee's interest under this
Lease or the Premises, by operation of law or otherwise, without the prior
written consent of Lessor, or
Lessor may, in addition to all other remedies provided by law, exercise any one
or more of the following options:
(b) Terminate Lessee's right to possession under this Lease and
reenter and take possession of the Premises, and relet or attempt to relet the
Premises, or any part thereof, on behalf of and as the agent of the Lessee, at
such rental and under such terms and conditions as Lessor may deem best under
the circumstances for the purpose of reducing Lessee's liability, and Lessor
shall not be deemed to have thereby accepted a surrender of the Premises, and
Lessee shall remain liable for all rental and additional rental due under this
Lease and for all damages suffered by Lessor because of Lessee's breach of any
of the covenants of this Lease. Lessor shall apply any rentals received from
such reletting first to the expenses of the Lessor, if any, incurred by
reentering and placing the Premises in condition for reletting, and then to the
payment of rentals due hereunder and other obligations of Lessee to the Lessor
arising under this Lease. At any time during such repossession or reletting.
Lessor may, by delivering written notice to the Lessee, elect to exercise its
option under the following subparagraph to accept a surrender of the Premises,
terminate and cancel this lease, and retake possession and occupancy of the
Premises on behalf of Lessor.
(c) Declare this Lease terminated, whereupon the term herein
granted and all right, title, and interest of Lessee in and to the Premises
shall end. Such termination shall be without prejudice to Lessor's right to
enforce the collection of any rental or additional rental due or accrued at the
termination thereof, and for such time as shall be required to evict Lessee,
together with all other damages suffered by Lessor as a result of Lessee's
default. Upon such termination Lessor shall have the right immediately to
reenter the Premises and take possession thereof, and the Lessee shall
thereupon surrender the Premises to the Lessor.
<PAGE> 11
RENTAL SCHEDULE
FOR LEASE BETWEEN
EDGEWOOD GENERAL PARTNERSHIP
(LESSOR)
AND
NOVACARE, INC.
(LESSEE)
SUITE 502
TOWER II, AUSTIN CENTER WEST
<TABLE>
<CAPTION>
YEAR ANNUAL MONTHLY LATE FEE
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
YEAR 1 $46,375.25 $3,864.60 $193.23
YEAR 2 47,895.75 3,991.31 199.57
YEAR 3 49,416.25 4,118.02 205.90
</TABLE>
All the above amounts are subject to Florida State Sales Tax of 6.5%.
Page 1A
<PAGE> 12
(d) Pay or perform obligation of Lessee for Lessee's account,
without prejudice to any other right or remedy of Lessor. All damages, costs,
and expenses so incurred by Lessor, including any interests, penalties, and
attorney's fees, shall be due and payable to Lessor on demand.
(e) Enforce by any available procedure a landlord's lien upon any
or all of Lessee's equipment, furnishings, furniture trade fixtures, inventory,
and other personal property of Lessee situated on, affixed to, or kept on the
Premises, Lessee hereby granting Lessor an express landlord's lien upon all
such property for the full performance of each of the Lessee's obligations
hereunder.
(f) Exercise any and all rights and privileges that Lessor may have
under the laws of the state of Florida or of the United States of America.
The remedies of Lessor herein are cumulative and the election to proceed by
forfeiture or surrender or otherwise shall not operate as a bar to prosecution
of all provisions of this Lease or of law then in force. All of Lessee's
obligations under this Lease bear interest at the maximum rate from time to
time permitted by law; and all costs, including reasonable attorney's and
receiver's fees, if any, incurred in connection with the exercise of any of
Lessor's remedies (whether by legal proceedings or otherwise), constitutes
elements of Lessor's damages and shall be paid by Lessee to Lessor. In the
event it becomes necessary for the Lessor to institute legal proceedings to
enforce any term, condition, or covenant contained in this agreement, then in
such event, Lessee agrees to pay Lessor all costs and expenses of such
proceedings together with a reasonable attorney's fee through all proceedings,
trials, and appeals. In the event of default by Lessee, Lessor may discontinue
any and all services to the Premises without liability to Lessee for any
inconvenience, hardship, business or other losses, or damages of any nature
whatsoever.
4. USE. Lessee hereby covenants to use and occupy the Premises for the
sole and exclusive purpose of operating a GENERAL AND ADMINISTRATIVE office
therein and activities reasonably incidental thereto, and for no other uses or
purposes whatsoever without Lessor's prior written consent. Lessee covenants
not to use or maintain the Premises in any unlawful manner or for any unlawful
purposes, and shall promptly comply with any and all laws, ordinances, order,
and regulations of any and all municipal, county, state, federal, and other
governmental authorities that may pertain or apply to Lessee's occupancy, use,
or business operations on the Premises at Lessee's sole cost and expense,
including, but not limited to, any and all energy or fuel conservation orders
or regulations promulgated by any government authority. Lessee shall make no
use whatever of the Premises that would cause an increase in the fire insurance
rate applicable to the Building upon the commencement of the term of this
Lease, and shall not do or permit to be done any act or thing which might
subject Lessor to any liability or responsibility for injury to any person or
persons or to any property by reason of any business operation being conducted
on the Premises. Lessee shall not bring any articles of a dangerous nature or
any heating or cooking units into the Building or the Premises without the
prior written consent of the Lessor. Lessee agrees that nothing will be thrown
or dropped from the windows on the Premises. No safe or other heavy equipment
shall be allowed in the Building unless the weight, location, and handling of
the same is approved by the Lessor. Lessee shall not make any noise or odor
that is objectionable to the public, to other occupants of the Building, or to
Lessor, to emenate from the Premises and shall not create or maintain a
nuisance thereon, and shall not disturb, solicit, or canvas any occupant of the
Building, and shall not do any act lending to injure the reputation of the
Building or the Premises.
5. REPAIRS. Lessee agrees to prevent waste to and to take good care of
the Premises throughout the term of this Lease. Lessee, at Lessee's sole cost
and expense, shall maintain the Premises in good order and repair and in clean
condition throughout the term of this Lease. Lessee, at Lessee's sole cost and
expense, shall make when needed all repairs and alterations to the Premises,
the Building, and the Land whenever damage or injury to the same shall have
resulted from any willful or negligent act or omission by Lessee, its servants,
employees, agents, visitors, invitees, customers, or licensees. If Lessee
neglects or refuses promptly to make any repairs or maintenance required by
this Paragraph, Lessor may perform the same on Lessee's behalf, and Lessee
shall reimburse Lessor for all costs and expenses so incurred upon demand. Upon
termination of this Lease in any manner, Lessee shall peaceably and quietly
leave, surrender, and yield up unto Lessor the Premises broom-clean and as in
good order and repair as existed upon the commencement of the term of this
Lease, normal wear and tear excepted, and shall surrender all keys to the
Premises and the building to the Lessor.
6. ALTERATIONS: CONSTRUCTION LIEN PROHIBITION. Any interest of Lessor
in real property or related improvements shall not be subject to any lien,
mortgage or other encumbrance for improvements made by Lessee. Lessee shall not
make any alterations, modifications, improvements, or additions to the Premises
without Lessor's written consent, and if such consent be given, Lessee shall
comply strictly with all conditions contained in such content and shall
discharge and hold Lessor harmless of and from all charges for labor, services,
or materials in connection with such alterations, modifications, improvements,
or additions. Lessee shall not create or permit the continuation of any lien,
encumbrance, or charge to attach to any interest in the Premises, and Lessee
agrees to discharge any mechanic's lien which may be filed against the
Premises. Lessee shall not cause any telephone, telegraph, burglar alarm, fire
or smoke alarm, or other electrical or mechanical devices or attachments of any
nature to be placed upon the woodwork, walls, ceiling, or floor of the Premises
or the Building without the prior written consent of Lessor. Lessee shall not
install any electrical equipment in the Premises which in Lessor's reasonable
opinion will overload the wiring installations in the Building or interfere
with the reasonable use thereof by Lessor or other tenants in the Building.
Lessee further agrees that no sign, advertising or awning shall be placed on,
attached to, or painted on the Land or the exterior or interior of the
Premises or the Building without the prior written consent of Lessor. Lessee
agrees that no boxes, plants, or other obstructions of any kind will be placed
or hung in the halls, stairways, or staircase landings of the Building, or in
the windows in the Premises or the Building. All windows, doors, and transoms
in the Premises that reflect light into passageways or any other place in the
Building shall be kept uncovered and unobstructed by Lessee; window coverings
or drapes of any sort whatsoever visible from the outside of the Premises or
Building, shall be placed only upon and in accordance with the prior written
approval from the Lessor, and any drapes on exterior windows shall be white.
Upon the termination of this Lease in any manner, all of Lessee's such
alterations, modifications, improvements, and additions to the Premises shall
become and remain the sole property of Lessor, or, at Lessor's sole option,
Lessor may require Lessee to remove the same and restore the Premises to the
same condition as existed upon the commencement of this Lease, all at Lessee's
sole cost and expense. If Lessee fails or refuses to make such removal and
restorations Lessor deems necessary without further notice to or consultation
with Lessee, and Lessee hereby agrees to pay for the same in full within
fifteen (15) days following the mailing of an invoice therefor by Lessor to
Lessee at Lessee's last known address.
7. BUILDING NAME. Lessor hereby reserves the right to change the name
of the Building at any time during the term of this Lease.
8. KEYS AND ENTRY. At all times during the term of this Lease, Lessor
may retain pass keys to the Premises, may enter the Premises at all reasonable
hours for reasonable purposes, may decorate or make repairs, alterations,
additions, or improvements, whether structural or otherwise in or about the
Premises or the Building or any part thereof, and during such alterations,
repairs, improvements or decorations may temporarily close doors, entry ways,
public spaces, and corridors in the Building and interrupt or temporarily
suspend Building services and facilities, all without abatement of rent or
affecting any of Lessee's obligations hereunder. Lessee agrees to permit Lessor
and its agents entry to the Premises at any reasonable time during the term of
this lease for the purpose of showing the Premises to prospective purchasers or
tenants.
9. CASUALTY. In the event the premises, or any part thereof, shall be
destroyed or damaged by fire or other casualty to the extent that the same
shall not be tenantable by Lessee, Lessor, at Lessor's sole option, either may
elect to cancel this Lease as of the time of the damage to or destruction of
the Premises, whereupon Lessee shall be relieved from any payment of rent
accruing thereafter, or Lessor may elect to restore the Premises by repairs or
reconstruction at Lessor's sole cost and expense, in which event the amount of
rents payable hereunder shall be abated for the period of repairs in proportion
to the amount of the Premises which shall be untenantable by Lessee. As used
herein, the term "casualty" means fire, hurricane, flood, tornado, rain, wind,
or other acts of God, regardless of whether the same reasonably could be
foreseen; riot, civil commotion, or other acts of a public enemy; and theft,
vandalism, or other criminal or tortious acts of third parties.
<PAGE> 13
10. INDEMNITY. Lessee shall defend, indemnify, and hold Lessor
harmless of and from any and all losses, damages, claims, costs and expenses,
including reasonable attorney's fees, arising out of any claim asserted by any
person against Lessor for loss of, or damage or injury to, person or property,
caused by an act, fault, omission, or neglect of Lessee or any person on or
about the Premises with Lessee's consent, actual or implied, including, without
limitation, any employee, agent, or invitee of Lessee. Lessor shall not be
liable to Lessee for any latent defect in the Premises or for any injuries to
person or damage to property sustained while in, on, or about the Premises from
any cause whatsoever other than the active negligence of Lessor, its agents or
employees; and Lessor will not be responsible for money, jewelry, or personal
property of any kind lost or stolen in the Premises, nor for damage to Lessee's
property caused by bursting and leaking pipes in the Premises or the Building,
unless Lessee shall have notified Lessor in writing of an existing defect in
said pipes and the Lessor shall have had a reasonable time in which to repair
the same.
11. ASSIGNMENT. Lessee shall not have the right to assign this Lease,
or any interest herein, nor to sublet the Premises, or any part thereof,
without the prior written consent of Lessor, which shall not be unreasonably
withheld.
12. QUIET ENJOYMENT. Lessee hereby covenants and agrees to pay all
rental reserved hereunder at the times and in the manner herein provided, and
to fully and faithfully comply, perform, and abide by each and every term
stipulation, and agreement herein contained; and upon the said faithful
compliance Lessee shall have peaceable and undisturbed possession of the
Premises during the term aforesaid without let or hindrance from any person
whomsoever lawfully claiming the same.
13. FIXTURES. Lessee may install or affix to the Premises such
equipment and trade fixtures as are reasonably necessary for the conduct of
Lessee's business operations therein with the Lessor's prior written consent;
and upon termination of this Lease for any reason other than Lessee's default,
Lessee may remove the same provided that after such removal Lessee restores the
Premises at Lessee's expense to the same condition as existed prior to the
installation of such equipment or fixtures. It is understood and agreed,
however, that any floor coverings, water fountain, stove, or other appurtenants
attached to the floor or any part of the Premises by Lessee shall at the
termination of this Lease or any renewal thereof, remain the property of Lessor
and shall not be removed unless Lessor requests Lessee to remove same to be
notified at initial approval. Lessee shall promptly pay and discharge and shall
indemnify and hold Lessor harmless of and from, all tangible personal property
taxes and assessments now or hereafter taxed, assessed, imposed, or levied by
any lawful authority against or upon any fixtures, equipment, or personal
property located in the Premises during the term of this Lease.
14. UTILITIES. Lessor agrees, while Lessee is not in default under
this Lease, to furnish the Premises with air conditioning and heat during the
appropriate seasons (not to exceed temperatures prescribed by any energy
conservation regulations or orders of any governmental authority having
jurisdiction thereof), a reasonable supply of water for lavatory and drinking
purposes, reasonable electrical service for standard office use and machines,
and elevator service for passengers. All of the foregoing shall be furnished
only during the hours from 8:00 a.m. to 6:00 p.m., Monday through Friday,
except legal holidays. Lessor agrees to furnish reasonable janitorial service
for the Premises five days per week. Lessor, however, shall not be liable for
failure to furnish any of the foregoing, whether such failure is caused by
conditions beyond the control of Lessor or by accidents, repairs, or strikes,
or otherwise; nor shall such failure constitute a breach of the terms of this
Lease on the part of Lessor; nor shall Lessor be liable under any circumstances
for loss of or injury to person or property, however occurring through or in
connection with or incidental to the furnishing of any of the foregoing. In
connection with the furnishing of said services, Lessee shall permit Lessor and
his agents to enter into or upon the Premises at all times in connection with
said services and for the purpose of inspecting the Premises or to make
repairs, alterations, or additions. Lessee shall pay, discharge, defend,
indemnify, and hold Lessor harmless of and from all charges for telephone
service, electrical service for computers and similar machines, gas, and all
other utilities used in connection with the Premises not provided by the Lessor.
15. EXPENSE. (a) As additional rental, Lessee hereby covenants and
agrees to pay to Lessor on January 1 of the calendar year immediately following
the year during which the initial term of this Lease commences, Lessee's pro
rata share of the sum of the following:*
(1) The amount by which the Taxes, as hereinafter defined, for
the calendar year in which the initial term of the Lease commences exceed
$ 1996 Base Year grossed up to reflect 90% occupancy (hereinafter called
the "Base Annual Tax Rate"). As used in this Paragraph, the term "Taxes" means
the aggregate amount of real property taxes and assessments taxed, assessed,
imposed, or levied by any lawful authority upon the Land and the Building in any
calendar year during the term of this Lease.
(2) The amount by which the Operating Expenses, as hereinafter
defined, for the calendar year in which the initial term of this Lease
commences exceeds $ 1996 Base Year grossed up to reflect 90% occupancy
(hereinafter called "the Base Annual Operating Expense Rate"). See Exhibit "C".
SEE ALSO ADDENDUM.
(b) Commencing on January 1 of the calendar year following the
year during which the initial term of this Lease commences, and continuing on
the first day of each calendar month thereafter until the expiration or other
termination of this Lease, Lessee shall pay to Lessor as additional monthly
rental an amount equal to one-twelfth of the Lessee's pro rata share of the sum
of: (1) The excess of the Taxes for the Preceding calendar year over the Base
Annual Tax Rate; and (2) the excess of Operating Expenses for the preceding
calendar year over the Base Annual Operating Expense Rate. In the event that
Lessor has not advised Lessee on or before January 1 of any calendar year of
such pro rata share, as hereinafter provided. Lessee shall continue to make
monthly payments to Lessor in any amount equal to one-twelfth of Lessee's pro
rata share for the last year in which Lessee has been so advised. At the end of
each calendar year following the year in which the initial term of this Lease
commences, through and including the end of the calendar year in which the
expiration or other termination of this Lease occurs. Lessor shall calculate
the actual excesses of Taxes and Operating Expenses for such year over the Base
Annual Tax Rate and the Base Annual Operating Expense Rate, respectively and
shall advise Lessee in writing of the Lessee's pro rata share of such excesses.
In the event that the amount of additional monthly rental collected under this
Paragraph 15 for the preceding twelve-month period is less than such actual
excesses for said year. Lessee shall remit the balance thereof to the Lessor
within ten (10) days after the receipt of such notice. In the event that the
amount of additional monthly rental collection hereunder for the preceding
twelve-month period is greater than the actual excesses for such year, Lessor
shall remit the difference to the Lessee along with said notice within ten (10)
days.
* Should the closing of Lessor's books not allow the presentation of Lessee's
pro rata share by January 1, Lessee agrees that Lessor may present Lessee's pro
rata share retroactive to January 1 upon closing of the books. Lessor will use
all diligence to prepare billings in a timely fashion.
<PAGE> 14
15. LESSOR'S WORK. Lessor agrees to furnish and install as per Lesser's
drawings in the Premises those items described in the schedule attached hereto
as in Exhibit "B" and made a part hereof:
Landlord agrees to perform the following at Landlord expense:
a) Remove all wallcovering
b) Paint suite
c) Install new mini blinds in executive office and remove overhead
lighting fixture
d) Install lower cabinet with formica counter and cold water sink
e) Install VCT in supply room
f) Install magnetic keypad entrance system with intercom
g) Install three (3) dedicated duplex outlets
h) Make ceiling tile uniform
i) Keep existing chair railing and wood base and add wood base for
new walls only
j) Install vinyl base in storage area
k) Remove upper cabinet in training area
l) Install water line for refrigerator
m) Buildout per layout
17. MOVING No furniture may be moved in or out of the building without
prior consent of Lessor. Arrangements for moving must be made with Lessor's
office and must be supervised by Lessor's representative. Lessee agrees to pay
for any and all damages to any part of the Building or Premises because if such
moving, by either Lessee, his agents or movers. No moving shall be permitted
between the hours at 8:00 a.m. and 5:00 p.m., Monday through Friday.
18. INSURANCE TO BE MAINTAINED BY LESSEE. Lessee shall Insure all its
properly in the demised premises against damage by fire, including extended
coverage, in any amount as determined by Lessor in consultation with Lessee. The
Lessee shall also maintain at its expense, throughout the Term. Insurance
against loss of liability in connection with bodily injury, death, property
damage and destruction occurring within the Premises or arising out or the use
thereof by the Lessee or its agents, employees, officers, or invitees, visitors
and guests under one or more policies or general public liability insurance
having such limits as to each as are reasonably required by the Lessor from time
to time (but in no event loss than (a) One Million Dollars (1,000,0000.00) for
injury to or death of any one or more persons during any one occurrence and
(b) Five Hundred Thousand Dollars ($500,000.00) for property damage or
destruction during any one occurrence. Such policies shall provide that they
shall not be cancellable without at least thirty (30) days prior written notice
to the Lessor (and, at the request of Lessor, any mortgagee), and shall be
issued by Insurers of recognized responsibility licensed to do business in
Florida.
19. WAIVER OF SUBROGATION. If either party hereto is paid any proceeds
under any policy of Insurance naming any party as an Insured, on account of such
loss, damage or liability, then such party hereby releases, the other party
hereto, to and only the extent of the amount of such proceeds, from any and all
liability for such loss, damage or liability, notwithstanding that such loss,
damage or liability, amy arise out of negligent or intentionally tortious act or
omission of the other party, its agents or employees, provided that such release
shall be effective only with respect to loss or damage occurring during such
times as the appropriate policy of insurance of the releasing party provides
that such releases shall not impair the effectiveness of such policy or the
Insured's ability to recover thereunder. Each party shall use the reasonable
efforts to have a clause to such effect included in its said policies, and shall
promptly notify the other in writing if such clause cannot be included in any
policy.
20. PARKING AREAS. Lessor agrees to provide and maintain for the use of
Lessee, In common with others, the parking area adjacent to the leased
premises. The lessor reserves the right to, exclusively for the use of the
tenants, promulgate reasonable rules and regulations relating to the use of
such parking area, including assignment of specific parking areas exclusively
for the use of certain tenant, and such limitations as may in the opinion of
the Lessor be necessary and desirable. Lessee and Lessee's employees shall park
their cars only in those portions of the parking area designated for that
purpose by the Lessor. Further, Lessee and its employees are expressly
prohibited from parking in any portion of the parking area designated or marked
for visitors parking only. Anything in this paragraph to the contrary,
notwithstanding, Lessee shall not be entitled to use any covered parking area
without first entering into a separate parking agreement with respect thereto
and paying fees required thereby.
21. ESTOPPEL CERTIFICATES. Lessee agrees, at any time and from time to
time, upon not five (5) days prior written notice by Lessor, to execute,
acknowledge and deliver to the Lessor or its designatee a statement in writing
certifying (i) that this lease is unmodified and in full force and effect or
if modified, that the lease is in full force and effect and stating date of
such modifications, (ii) the dates to which rent and other changes hereunder
have been paid by the Lessee, (ii) the amount of any prepaid rent or credit due
to the Lessee hereunder (iv) that the Lessee has accepted possession of the
leased premises and the date on which the Term commenced, (v) whether, to the
best knowledge of the Lessee, the Lessor is ten in default in the performance
or any of its obligations, hereunder, and, if so, specifying the nature of each
default, and (vi) as to any other fact or condition reasonably requested by the
Lessor or first mortgagee or prospective first mortgagee or purchaser of any
or all Lessor's interests, or any assignee or prospective assignee of any
interest of Lessor under this Lease.
22. HOLDING OVER. The Lessee shall not continue to occupy the Premises
after the expiration or earlier termination of the term or any renewal thereof,
unless the Lessor consents in writing to such continuation of occupancy, in
which event (i) such occupancy shall unless the parties hereto otherwise agree
in writing (be deemed to be under a month-to-month tenancy, which shall
continue until either party hereto notifies the other in writing, by at least
fifteen (15) days before the end of any rent paying period. In which event
such tenancy shall so terminate, (ii) anything contained in the foregoing
provisions of this section to the contrary, notwithstanding, the rental payment
with respect to each such monthly period shall equal one twelfth (1/12) of the
base rent and the additional rent payable under the provision of Section 15
(calculated in accordance of such of Section 15 as if this lease had been
renewed for a period of twelve (12) full calendar months after such expiration
or earlier termination of the Term or such renewal), and (iii) such
month-to-month tenancy shall be upon the same terms and subject to the same
conditions as those set forth in the provision of this Lease; provided that if
Lessor gives to the Lessee, by at least fifteen (15) days before the end of any
rent paying period during such month to month tenancy, written notice that such
terms and conditions (including any thereof relating to the amount and payment
of rent) shall, after such month, be modified in any manner specified in such
notice, then tenancy shall, after such period, be upon the terms and subject to
the said conditions as so modified.
23. APPLICABLE LAW. This lease shall be given effect and construed by
application of the law of Florida, and any action or proceeding arising
hereunder shall be brought in the courts of Florida: provided that if any such
action or proceeding arises under the constitution, laws or treaties of the
United States of America, or if there is a diversity of citizenship between the
parties hereto, so that it may be brought in the, United States District Court,
it may be brought in the United States District Court for the District of
Florida.
24. SEVERABILITY. No determination by any court governmental body or
otherwise that any provision of this Lease or any amendment hereof is invalid
or enforceability of a) any other such provision, or b) such provision in any
circumstance not controlled by such determination. Each such provision shall be
valid and enforceable to the fullest extent allowed by, and shall be construed
wherever possible as being consistent with applicable law.
<PAGE> 15
25. NO JOINT VENTURE. Any intention to create a joint venture or a
partnership relation between the parties hereto is hereby expressly disclaimed.
26. LESSOR'S REVERSION. Lessee agrees that this Lease shall at all
times be subject to a subordinate to the lien of any and all first mortgages
now or hereinafter placed by Lessor on the Premises, the Building, or the Land;
and Lessee agrees from the time to time to execute, to acknowledge, and deliver
any instrument of subordination required by any first mortgagee of the
Premises, the Building or the land. Upon the transfer of any or all of the
Lessor's interest in this Lease, or any or all of the Lessor's interest in the
Land, or both, regardless of whether such transfer is characterized as
voluntary or by operation of law, conditional or unconditional, absolute or as
security for performance of an obligation, Lessee agrees to execute,
acknowledge, and deliver to such a transferee, upon demand, any and all
instruments of attornment required by such transferee. Lessee additionally
agrees to execute and deliver to such transferee, either prior to or
simultaneously with such transfer, a signed writing acknowledging the status of
this Lease. Upon the absolute transfer of the reversion to any party the person
executing this Lease as Lessor shall thereupon be relieved of any and all
further obligation to Lessee hereunder.
27. NOTICES. Any notices or demand required under this Lease or by law
shall be in writing and shall be deemed to have been delivered when mailed by
registered or certified mail, return receipt requested, with sufficient postage
affixed and addressed to Lessee at the Premises and to Lessor at P.O. Box 22197
Tampa, Florida 33622. Such addresses may be changed by written notice as
provided in this Paragraph. Lessee hereby waives the giving of any and all
statutory notices that may be required under the laws of the State of Florida.
28. CONDEMNATION. If all or any portion of the Premises is condemned
for any public use or purpose by any legally constituted authority with the
result that the same are no longer reasonably suitable for Lessee's continued
use thereof, then Lessee shall have the option of cancelling this Lease, and
rent shall be accounted for between Lessor and Lessee of the date of taking.
In the event of condemnation of the Premises, the Building, or the Land, or any
portion thereof, Lessor shall be entitled to all compensation to be paid by the
condemning authority, Lessee may pursue any claim Lessee may have for business
interruption or moving expenses, provided said claim does not diminish the
Lessor's award.
29. RENEWAL. Provided that no default is then existing or continuing
in the performance of any of the terms or covenants of this Lease, Lessor
hereby grants Lessee the option of renewing and extending the term of this
Lease for one additional term of three years, commencing at midnight on the
expiration of the initial term of the Lease, upon such terms and conditions as
are mutually agreed upon in writing by the parties hereto. In the event Lessor
and Lessee are unable to reach a mutual written agreement as to all such terms
and conditions prior to the expiration of the initial term of this Lease, the
Option herein granted shall be deemed null and void. The renewal option herein
granted shall be exercised by notifying Lessor in writing at least ninety (90)
days prior to the expiration of the initial term of this Lease.
30. INTEGRATION, MODIFICATION, AND WAIVER. This instrument contains
all the agreements and conditions made between the parties hereto and may not
be modified, changed, or terminated, in whole or in part, orally, or in any
other manner than by an agreement in writing, signed by all parties hereto or
their respective successors in interest. The receipt of rent by Lessor with
knowledge of any breach of this Lease by Lessee or of any default on the part
of Lessee in the observance or performance of any of the conditions or
covenants of this Lease, shall not be deemed to be a waiver of any provision of
this Lease. No waiver of any default on the part of Lessee nor any extension of
time by Lessor to Lessee for any purpose whatsoever shall be held or deemed to
be a waiver of any of the terms of this Lease or any default thereafter
occurring, and no termination of this Lease in any manner shall affect the
rights of the parties against each other as of the time of such termination. If
Lessee makes any payment of any amount less than that due hereunder Lessor
without notice may accept the same as a payment on account; the Lessor shall
not be bound by any notation on any check involving such payment nor any
statement in any accompanying letter. No failure on the part of Lessor to
enforce any covenant or provision herein contained, nor any waiver of any right
hereunder by the Lessor, unless in writing, shall discharge or invalidate such
covenant or provision or affect the right of Lessor to enforce the same in the
event of subsequent breach or default. The receipt by Lessor of any rent or
other sum of money or any other consideration hereunder paid by Lessee after
the termination, in any manner, of the term herein demised, or after the giving
by Lessor of any notice hereunder to effectuate such termination, shall not
reinstate, continue, or extend the term herein demised, or destroy, or in any
manner impair the efficacy of any such notice or termination as may have been
given hereunder by Lessor to Lessee prior to the receipt of any such sum of
money or other consideration, unless so agreed to in writing and signed by the
Lessor. Neither the acceptance of keys nor any other act or thing done by
Lessor, its agents or employees, during the term herein demised shall be deemed
to be an acceptance of a surrender of the Premises, excepting only an agreement
in writing signed by the Lessor accepting or agreeing to accept such a
surrender. Any right herein granted to the Lessor to terminate this Lease shall
apply to any extension or renewal of the term herein demised, and the exercise
of any such right during the term herein demised shall terminate any extension
or renewal of the term herein demised, and any right on the part of Lessee
thereto. No act or conduct of any nature or character on the part of Lessor,
its agents or employees, other than an agreement in writing signed by the
Lessor, shall be construed as a waiver of the provision of this paragraph
irrespective of any circumstances existing at the time of such act or conduct.
Regardless of any other understanding this Lease is not to be considered
effective until fully executed by both Lessor and Lessee.
31. INTERPRETATION. The covenants herein contained shall bind, and the
benefits hereof inure to, the respective heirs, personal representatives,
successors, and assigns of all parties hereto, jointly and severally. Unless
the context requires otherwise, the singular shall be construed to include the
plural and vice versa. The paragraph headings used herein are for indexing
purposes only and are not to be used in interpreting or construing the terms of
this Lease.
32. RIGHT TO RELOCATE. See Exhibit "F".
IN WITNESS WHEREOF, Lessor and Lessee have caused this instrument to
be duly executed as of the date first hereinabove set forth.
Signed, sealed, and delivered
in the presence of:
VERONICA BEELLS By: EDGEWOOD GENERAL PARTNERSHIP (SEAL)
- ----------------------------------- -------------------------------------
ALICIA STEWART Attest: ALFORD S. ??????
- ----------------------------------- --------------------------------
Witnesses as to Lessor "LESSOR"
KIEREN P. SHERRY NOVACARE, INC. (SEAL)
- ----------------------------------- -------------------------------------
KATHY BRUMLACH By: ?????????????????
- ----------------------------------- -------------------------------------
Witnesses as to Lessor "LESSEE"
NAME TYPED: Robert E. Healy, Jr.
-----------------------------
TITLE: CEO
----------------------------------
<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
November 20, 1998
<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> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> MAY-18-1998
<PERIOD-END> SEP-30-1998
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<TOTAL-ASSETS> 18
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<LONG-TERM> 0
0
90
<COMMON> 0
<OTHER-SE> 72
<TOTAL-LIABILITIES-AND-EQUITY> 18
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<INCOME-PRE-EXTRAORDINARY> (44)
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</TABLE>
