SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
File No. 333-68293
FORM SB-1 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
(Amendment No. 1)
Horizon Bancorporation, Inc.
(Name of Small Business Issuer in Its Charter)
Florida 6711 65-0840565
(State of (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification
Incorporation or Classification No.)
Organization) Code Number)
Suite C, 3005-26th Street West.
Bradenton, Florida 34205; (941) 753-2265
(Address and Telephone Number of Principal Executive Offices)
Charles S. Conoley with a copy to:
Suite C Daniel D. Dinur,
3005-26th Street West Esq.
Bradenton, Florida 34205 One Lakeside
(941) 753-2265 Commons
990 Hammond Drive
Suite 760
Atlanta, GA 30328
(770) 395-3170
(Name, Address and Telephone Number of Agent for Service)
Approximate date of commencement of proposed sale to the
public: as soon as practicable.
If this form is filed to register additional securities for
an Offering pursuant to Rule 462(b) 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 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 registration statement for the same Offering. [ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier registration statement for the same Offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, check the following box. [ ]
Calculation of Registration Fee
Title of Dollar Proposed Proposed Amount of
Each Class Amount To Maximum Maximum Registration
of Be Offering Aggregate Fee
Securities Registered Price Per Offering
To Be Unit Price
Registered
Common $7,500,000 $5.00 $7,500,000 $2,085
Stock
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that is 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 said Section 8(a), may determine.
Disclosure alternative used (check one ):
Alternative 1 [ ] Alternative 2 [X]
CROSS REFERENCE SHEET BETWEEN FORM SB-1
(INCLUDING MODEL B OF FORM IA) AND PROSPECTUS
SB-1 Items Location or Heading
in Prospectus
- ---------- -------------------
1. Inside Front and Outside Back
Back Cover Pages of
Prospectus.....................Inside Front and
Outside Back Cover
Pages; Additional
Information
2. Significant Parties............Management;
Principal
Shareholders;
3. Relationship with Issuer of
Experts Named in Registration
Statement......................Not Applicable
4. Legal Proceedings..............Not Applicable
5. Changes in and Disagreements
with Accountants...............Not Applicable
6. Disclosure of Commission
Position on Indemnification for
Securities Act Liabilities.....Management
Model B Items
- -------------
1. Cover Page.....................Front Cover Page
2. Distribution Spread............Front Cover Page
3. Summary Information, Risk
Factors and Dilution...........Prospectus
Summary;
Risk Factors
4. Plan of Distribution...........The Offering
5. Use of Proceeds to Issuer......Use of Proceeds
6. Description of Business........Prospectus
Summary;
Business;
Supervision and
Regulation
7. Description of Property........Business
8. Directors, Executive Officers
and Significant Employees......Management
9. Remuneration of Directors and
Officers.......................Management
10. Security Ownership of Certain
Security. Holders and
Management....................Principal
Shareholders
11. Interest of Management and
Others in Certain
Transactions..................Certain
Transactions
12. Securities Being Offered.......Description of
Capital Stock;
Dividend Policy
13. Financial Information Required
in Prospectus..................Financial
Statements
Initial Public Offering
Prospectus
Horizon Bancorporation, Inc.
1,500,000 shares of Common Stock
$5.00 per share
Horizon Bancorporation, We are a newly-formed bank holding
Inc. company. Our business will be to own
Suite C the shares of a newly-chartered
3005-26th Street, West Florida state bank in Bradenton,
Bradenton, FL 32405 Manatee County, Florida.
This is our initial public offering
and no public market currently
exists for our shares. The offering
price may not reflect the market
price of our shares after the
offering.
The Offering
Per ShareTotal (Minimum) Total (Maximum
Public Price $ 5.00 $5,250,000 $7,500,000
Discounts and commissions* .0 0 0
Expenses of
the offering (estimated) 94,585 94,585
Proceeds to Horizon $5.00 $5,155,415 $7,405,415
*We will be offering the shares through our directors and
executive officers who will receive no compensation for selling
shares.
This Investment Involves a High Degree of Risk. You should
Purchase Shares Only If You Can Afford a Complete Loss. See "Risk
Factors" Beginning on Page 5.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these
securities, or determined if this Prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
December 15, 1998
PROSPECTUS SUMMARY
This summary highlights selected information contained
elsewhere in this prospectus. It is not complete and may not
contain all of the information that is important to you. To
understand this offering fully, you should read the entire
prospectus carefully, including the risk factors and financial
statements.
Horizon
Offices: Horizon Bancorporation, Inc., Suite C, 3005-26th Street
West, Bradenton, Florida 34205, telephone (941) 753-
2265.
Our Business: We are a newly formed bank holding company. Our
business will be to own the shares of a newly-chartered
Florida state bank to be located in Bradenton, Manatee
County, Florida, which will be called Horizon Bank (the
"Bank"). The Bank will operate as a typical community
bank, offering general commercial banking services to
medium to small businesses and middle class customers
in Manatee County.
Our History and
Immediate
Future Plans: Horizon Bancorporation, Inc. (formerly known as
Manasota Group, Inc.) was organized on May 27, 1998, by
nine businessmen residing and doing business in Manatee
and Sarasota Counties, Florida. These organizers
invested $108,000 in Horizon, by buying 21,600 shares
at $5 per share. Also, seven of the organizers have
guaranteed a $300,000 line of credit to Horizon. These
funds are being used by Horizon to pay organizational
and offering expenses. For the names of and
biographical information about the organizers, see
"Management".
On October 12, 1998, the Bank filed an application for
a charter to be granted by the Florida Department of
Banking and Finance and an application for insurance of
its deposits to be issued by the Federal Deposit
Insurance Corporation ("FDIC"). Once the charter is
granted and insurance is issued, Horizon will apply to
the Board of Governors of the Federal Reserve System
(the "Fed") for authority to become a bank holding
company and the Bank will apply to the Fed for
membership as a state member bank. The charter and
insurance are expected to be granted by February 12,
1999, and the bank holding company status and Fed
membership are expected to be obtained by April 30,
1999. Currently, Horizon operates from temporary
offices. When all of the regulatory approvals are
obtained and at least the minimum number of shares is
sold, the Bank will construct a 5,000 square foot
building to house the Bank's main banking facility and
Horizon's headquarters at 901-53rd Avenue, East, in
Bradenton, on land which is currently under contract.
During construction, which is expected to last about
six months, the Bank will operate at the site from a
temporary modular facility.
The Offering
Securities offered............1,500,000 shares of $.01 par value
common stock
Shares outstanding at
October 31, 1998..........21,600 owned by the organizers
Shares to be outstanding
after the offering........1,050,000 (minimum offering) or
1,500,000 (maximum offering)
Total public price............$5,250,000 (minimum offering) or
$7,500,000 (maximum offering)
Estimated offering expenses...$94,585
Net proceeds..................$5,155,415 or $7,405,415,
respectively
Commitment by the organizers
to buy shares and their right
to receive warrants......The organizers have committed to buy a
total of 264,000 shares in the first 30
days of the offering. In recognition of
having funded the organizational and
offering expenses and as an incentive
for them to serve as directors of
Horizon and the Bank, each organizer
will receive, when the minimum offering
is sold, warrants to buy one additional
share, at $5 per share, for each share
the organizer committed to buy and did
buy in the offering.
Self-underwritten offering
with an option to use
underwriters.............We will sell shares through our
directors and executive officers, who
will not receive compensation for any
sales. However, we reserve the right to
sell the shares through underwriters. In
such event, we will pay commissions, not
to exceed 8% of the gross selling
proceeds, and will increase the minimum
offering by that number of shares which
will still allow us to yield net
proceeds of at least $5,250,000 net of
commissions paid.
Use of proceeds..........We will use the proceeds of the offering
as follows:
* To pay the offering expenses;
* To redeem, at the redemption price of
$5 per share, the 21,600 shares owned
by the organizers;
* To repay the line of credit guaranteed
by the organizers;
* $5,000,000 to capitalize the Bank; and
* To add to the working capital of Horizon.
To the extent the ultimate net proceeds
of the offering before payment of the
amounts described above exceed
$5,250,000, then 50% of the excess over
$5,250,000 will be added to the capital
of the Bank and the remaining 50% will
be added to the working capital of
Horizon.
Conditions of the offering.....The offering will terminate and all
subscription funds will be returned to
the subscribers without interest if we
have not sold the minimum of 1,050,000
shares by June 30, 1999. We may,
however, extend this deadline, but not
beyond December 31, 1999. The minimum
and maximum investment by one subscriber
is 100 shares and 9.9% of the total
shares outstanding after the offering,
respectively, except that the 9.9%
maximum limit may be exceeded with the
consent of 75% of the members of the
Board of Directors.
Risk factors.............Investing in our shares is risky, and,
before investing, you should determine
that you are able to bear a complete
loss of your investment. See "Risk
Factors."
Where You Can Get More Information
At your request, we will provide you, without charge, a copy
of any exhibits to our registration statement incorporated by
reference in this prospectus. If you want more information, write
or call us at:
Horizon Bancorporation, Inc.
Suite C
3005-26th Street, West
Bradenton, Florida 34205
Telephone: (941) 753-2265
Our fiscal year ends on December 31. We intend to furnish
our shareholders annual reports containing audited financial
statements and other appropriate reports. In addition, we intend
to become a reporting company and file annual, quarterly and
current reports, proxy statements and other information with the
SEC. You may read and copy any reports, statements or other
information we file at the SEC's public reference room in
Washington, D.C. You can request copies of these documents, upon
payment of a duplicating fee, by writing to the SEC. Please call
the SEC at 1-800-SEC-0330 for further information on the
operation of the public reference rooms. Our SEC filings are also
available to the public on the SEC Internet site at
http\\www.sec.gov.
Special Note Regarding Forward-looking Statements
Some of the statements contained in this prospectus discuss
future expectations or state other "forward-looking" information.
Those statements are subject to known and unknown risks,
uncertainties and other factors that could cause the actual
results to differ materially from those contemplated by the
statements. The forward-looking information is based on various
factors and was derived using numerous assumptions.
Important factors that may cause actual results to differ
from projections include, for example,
* the success or failure of our efforts to implement the
Bank's business plan;
* the effect of changing economic conditions, particularly
changes in interest rates;
* changes in government regulations, tax rates and similar
matters;
* our ability to attract and retain quality employees; and
* other risks which may be described in our future filings
with the SEC. We do not promise to update forward-looking
information to reflect actual results or changes in assumptions
or other factors that could affect those statements.
RISK FACTORS
Investing in Horizon's shares is very risky. You should
invest only if you determine that you can bear a complete loss of
your investment. In your determination, you should carefully
consider the following factors, among others:
Arbitrary We fixed the offering price at $5.00 per share
offering on the basis of the start-up capital needs of
price the Bank and offering prices of other newly-
organized bank holding companies. This price
bears no relationship to assets, book value,
earnings or other established criteria of value.
A new banking Horizon, the issuer of your shares, is a new
business in a business whose success will depend on the Bank's
competitive operations. The Bank is also a new business
environment; which will be successful only if the spread
losses likely between the income earned on loans and
to occur for investment securities and from fees exceeds the
at least the interest paid on deposits and other sources of
first full funds and general operating expenses.
year of
operations
In order to create and maintain a positive
spread, the Bank will have to contend with the
We could be following:
at a As a new bank in an established market, the Bank
disadvantage will be competing for deposits with many older
when financial institutions. These institutions may
competing for have competitive advantages over the Bank
deposits. because with greater capitalization and other
resources, they can offer potential depositors
higher lending limits, certain services, which
the Bank can only offer through correspondent
relationships, and possibly higher rates. We can
In making offer you no assurance that the Bank will be
loans, we successful in attracting the deposits it will
could be need to sustain its growth.
dealing with By the same token, as a new bank, the Bank will
unfamiliar, be competing for loan business with older and
smaller larger financial institutions. The Bank's
borrowers - intended President, Charles S. Conoley, does
who could have a significant following of bank customers
cause who will create lending relationships with the
excessive Bank that already have a proven history.
loan losses. Nevertheless, the Bank's loan portfolio may
include a significant number of loans, made by
the Bank in its efforts to grow such portfolio,
where the customers are individuals and entities
seeking to establish a completely new banking
relationship. Moreover, small to medium
businesses and middle-class individual
businesses will, by and large, have a lesser
As a capacity than large businesses or more wealthy
financial individuals to repay loans in the event of an
institution economic downturn or other adversity. For all
we are these reasons, it will be several years before
affected by the quality of the Bank's loan portfolio can be
global fully evaluated and we can offer you no
economic assurance that the Bank will not incur excessive
trends and loan losses.
policies. The spread earned by the Bank will be materially
affected not only by trends in the economy of
its primary source area, Manatee County, but
We will have also national and international trends and
the challenge fluctuations. For example, factors such as
of attracting interest rates and money supply policies of the
good Fed, inflation, recession, unemployment, natural
employees. resource prices and policies, international
conflicts and other factors beyond the Bank's
control may adversely affect such spread.
Success in a commercial banking business is
particularly dependent on employing experienced
We could be and service-oriented personnel at all levels. We
affected by have an employment agreement with Charles S.
unexpected Conoley, who is a very experienced banker and
competition who is one of the organizers and our President
if the law and Chief Executive Officer. We intend and are
changes. already making efforts to hire experienced
lending and operations officers, but have no
assurance that we can staff the Bank with
appropriate personnel when the Bank opens for
business.
By operation of the Glass-Steagal Act, the
commercial banking business has enjoyed legal
barriers to entry by non-banking enterprises. It
is possible that the United States Congress will
repeal such Act in the near future. If this were
to happen, the Bank may face even greater
competition in its primary service area from
large, well-capitalized enterprises, while at
the same time, as entities subject to tight
regulation, the Bank and Horizon could not
diversify into a non-banking business.
The Bank will be a so-called "community" bank.
In other words, we will exploit personal
contacts by our directors, officers and our
shareholders, as well as appropriately focused
advertising and promotional activities, to
appeal to businesses and individuals in search
of the personalized services likely to be
offered by an independent, locally-owned and
headquartered commercial bank. Our overall
identity as a community financial institution
should allow us to compete effectively and
profitably in spite of the factors listed
immediately above. Nevertheless, we do not
expect to be profitable on a current basis until
at least the second full year of operations. We
cannot assure you that we will ultimately be
successful.
No public Your shares will be freely transferable.
market for However, there is no public market for the
the shares. shares and we do not expect an active trading
market for the shares to be developed for at
least one year after the offering. As a result,
if you desire to sell your shares you may be
required to locate a buyer on your own and may
not be able to do so.
Control by After the offering, the officers and directors
and will own between 17.6% and 25.14% of the total
perpetuation shares outstanding, depending on the number of
of existing shares sold in the offering. In addition, the
management. organizers could, through the exercise of their
warrants, acquire an additional 264,000 shares.
Also, we granted Charles S. Conoley options to
Management purchase 3% of the number of shares sold in the
controls the offering and are considering the establishment
Board of of a stock option plan for key employees and
Directors. directors under which up to 10% of the total
shares could be purchased. Moreover, the
shareholders will not have cumulative voting
when voting for nominees to the Board of
Directors. As a result, the officers, directors
and organizers may, by virtue of their ownership
of a significant number of shares, exercise
significant control over selection of the Board
of Directors and Horizon's policies.
It will be Our Articles of Incorporation and Bylaws contain
difficult for certain anti-takeover provisions. These
anyone to provisions include:
takeover * The power vested in the Board of Directors
Horizon. to fix the terms of any preferred stock in its
sole discretion;
* Staggered terms for the directors where
only a third of them stands for re-election in
any given year; and
* The requirement that two-thirds of the
shareholders approve mergers and similar
transactions, amendments to the Articles of
Incorporation and Bylaws and removal of
directors.
These provisions may discourage non-negotiated
takeover attempts which you might consider to be
in your best interest. They will also tend to
perpetuate existing management. See,
"Description of Capital Stock - Defensive Anti-
takeover Provisions."
Potential We will not have preemptive rights, i.e., you
dilution. will not be entitled to buy additional shares if
shares are bought by others. As a result, when
the organizers exercise their warrants and key
employees or directors exercise their stock
options, your interest in Horizon will be
diluted. Also, because potential acquirers would
have to pay more for the total stock of Horizon
due to the warrants and options, they might be
discouraged from making the acquisition.
No dividends Horizon can only pay dividends if it receives
for the dividends from the Bank and there will be
immediate regulatory restrictions on the amount of
future. dividends the Bank can pay. See, "Dividend
Policy." Also, we intend to preserve capital to
facilitate growth and expansion. As a result,
you should not expect receiving dividends in the
immediate future.
THE OFFERING
Terms of the Offering
The expiration date of the offering is the earlier of the date
all 1,500,000 shares are sold or 5:00 p.m. Eastern time on June
30, 1999. We may extend the expiration date for up to two 90-day
periods, without notice to subscribers but not beyond December
31, 1999. Net amounts paid by you for shares, i.e., subscription
proceeds, will be deposited in an escrow account with SunTrust
Bank Central Florida, N. A., as an escrow agent. Thus, if at
least $5,250,000 of subscription proceeds are not deposited with
the escrow agent by the expiration date, all subscriptions will
be canceled and all proceeds will be returned promptly to you in
full without interest.
Interest earned on all subscription proceeds will be kept by us
whether or not subscriptions are accepted or rejected or the
minimum offering is completed. We reserve the right to terminate
the offering after accepting subscriptions for less than the
maximum offering, provided subscriptions in at least the amount
of the minimum offering have been accepted at such time.
Horizon and the Bank require regulatory approvals from the Fed,
Florida Department and the FDIC before the Bank may commence
banking operations. Such regulatory approvals generally are
conditioned upon satisfaction of certain post-approval
conditions, the most relevant of which is that the Bank's main
banking facility be constructed and opened for business within
one year after its charter is approved. We believe that all such
conditions will be satisfied within six months following the
release of subscription proceeds from the escrow account. Thus,
subscription proceeds will not be released to us by the escrow
agent until net subscriptions proceeds of at least $5,250,000
after any commissions paid are received, and when we are
satisfied that all post-approval conditions can be met within a
six-month period.
We are offering the shares through our directors and executive
officers. They will receive no compensation for selling shares,
but will be reimbursed for reasonable expenses incurred by them
in connection with the offering. In other words, the offering is
not underwritten and we have not employed brokers or dealers in
connection with the sale of the shares. However, we reserve the
right to simultaneously offer the shares through registered
securities broker-dealers or salespersons and to pay reasonable
commissions to such persons, subject to the conditions that the
commissions paid not exceed 8.0% of gross offering proceeds and
that the minimum offering then be increased to allow the proceeds
to be not less than $5,250,000 net of commissions paid. As of the
date of this Prospectus we have not retained any broker-dealer.
The organizers have agreed to subscribe for at least 264,000
shares. The organizers may, but are not obligated to, purchase
additional shares if such purchases are necessary to complete the
minimum offering. No subscriber (including his or her immediate
family members and affiliates) will be permitted to purchase in
the offering an amount of shares which would exceed 9.9% of the
total number of shares outstanding upon completion of the
offering, unless such condition is waived by action of 75% of the
members of the Board of Directors.
Method of Subscription
The minimum subscription is 100 shares or $500, but we reserve
the right to accept subscriptions for less than the minimum
subscription.
In order to purchase shares, you must:
* Complete and sign the subscription agreement accompanying
this Prospectus;
* Make full payment for the purchase price for the shares in
United States currency by check, bank draft or money order
payable to "Horizon Bancorporation, Inc. Escrow Account;" and
* Deliver the subscription agreement, in person or by mail,
together with full payment for the purchase price, to Charles S.
Conoley, Suite C, 3005-26th Street West, Bradenton, Florida 34205
The escrow agent will invest subscription proceeds in short-
term, interest- bearing government securities or bank
certificates of deposit until released from the escrow account.
The escrow agent, by accepting appointment, in no way endorses
the purchase of shares by any person.
The respective rights and obligations of Horizon and the escrow
agent are set forth in an Escrow Agreement, dated October 30,
1998.
Subscription Acceptance
Subscriptions are not binding until accepted by us. Deposit of
funds in the escrow account pending satisfaction of the
conditions listed above will not be considered an acceptance of
the subscription to which the funds relate. We reserve the right
to accept or reject subscriptions, in whole or in part, in our
sole discretion. This permits us to refuse to sell shares to any
person submitting a subscription agreement or to accept part but
not all of a subscription so that a subscriber might ultimately
be issued fewer than the full number of shares for which he or
she subscribes. In determining which subscriptions to accept, in
whole or in part, we may take into account the order in which
subscriptions are received and a subscriber's potential to do
business with, or to refer customers to, the Bank. In the event
we reject all or a part of your subscription, the escrow agent
will refund by mail all or the appropriate portion of the amount
paid in by you with the subscription, without interest, promptly
after such rejection. In the event we do not receive all of the
regulatory approvals, all subscription proceeds will be returned
promptly by mail in full without interest. All costs and
expenses of the offering and of organizing Horizon and the Bank,
in excess of interest earned on subscription proceeds, will be
borne by the organizers in the event all subscriptions are
canceled.
We will issue and mail certificates representing the shares as
soon as practicable after subscription proceeds are released from
the escrow account.
USE OF PROCEEDS
We have been funding organizational expenses and offering
expenses from the $108,000 capital contribution made to Horizon
by the organizers by purchasing, on or about May 28, 1998, 21,600
shares at $5 per share. We have also been using advances from a
$300,000 line of credit which we obtained in November 1998 from
SunTrust Bank Central Florida, N.A. to fund such expenses. This
pre-opening loan has been guaranteed, on a several ,pro rata
basis, by the organizers other than Messrs. Bennett and Miller.
We received the commitment for for this loan on November 2, 1998.
We will continue to incur such organizational and offering
expenses through the date of the completion of the offering and
release of subscription proceeds from escrow. The following
presentation of use of proceeds of the offering assumes that all
the regulatory approvals are received by us and the offering
proceeds are released from escrow and the Bank is capitalized on
May 1, 1999.
Minimum Maximum
Offering Offering
Gross Offering proceeds* $5,250,000 $7,500,000
========= =========
Anticipated use of proceeds by the Company:
Offering expenses** 94,585 94,585
Organizational expenses*** 10,000 10,000
Working capital 145,415 1,270,415
Capitalization of the Bank
through purchase of
common stock of the Bank 5,000,000 6,125,000
Total $5,250,000 $7,500,000
Anticipated use of capital by the Bank:
Organizational and
pre-opening expenses**** 275,863 275,863
Land and Bank facility **** 1,072,500 1,072,500
Furniture, fixtures
and equipment****** 258,017 258,017
Working capital 3,393,620 4,518,620
Total $5,000,000 $6,125,000
* Assuming the sale of 1,050,000 Shares and 1,500,000 Shares,
respectively, at a price of $5.00 per Share.
** Offering expenses consist of various filing fees, printing
expenses, escrow agent fees, and accounting and legal fees and
expenses.
*** These expenses consist of certain consulting fees and
regulatory application fees.
**** Expenses of $318,753, consisting of salaries and benefits,
consulting fees, marketing and travel expenses, rent, utilities
and telephone expense and cost of supplies net of anticipated
interest income of $42,890. Some of these expenses, as well as
expenses described in footnotes 2, 3 and 5, will have been funded
by us from the organizers' capital contribution and advances from
the pre-opening loan. In other words, proceeds of the offering
will actually be used to redeem the 21,600 shares owned by the
organizers and to repay that portion of the outstanding balance
of the pre-opening loan attributable to these expenses.
***** Subject to certain contingencies, Horizon has agreed to
purchase, on March 24, 1999, and contribute to the Bank's capital
on May 1, 1999, the 1.05-acre site for $407,500. We anticipate
the total construction cost of the banking facility (including
site work, paving and landscaping and all architectural and
engineering fees) to be approximately $665,000 and that the
construction of the banking facility will be completed within not
more than six months after commencement of construction. We will
pay the he purchase price of the land and a portion of the
architectural and engineering fees ($8,500) before May 1, 1999,
from advances from the pre-opening loan.
****** This amount is an estimate and is based on our previous
experience in opening a banking facility.
The above table contains estimates only and assumes that the
Bank will be capitalized on May 1, 1999. A change in such date
and other circumstances on which the assumptions underlying these
estimates have been based may cause the actual use of proceeds to
vary from these estimates.
DIVIDEND POLICY
In order to preserve capital to facilitate growth and
expansion, we do not anticipate paying cash dividends on the
shares in the immediate future. The Board of Directors will make
a determination whether to pay cash dividends on the basis of
operating results, financial condition, tax considerations, and
other relevant factors. Also, at present, the only source of
funds from which we could pay cash dividends would be dividends
paid to Horizon by the Bank. The Bank similarly does not
anticipate paying cash dividends to Horizon in the near future in
order to preserve its capital to facilitate growth and expansion
of its business. Payment of cash dividends by the Bank is also
subject to regulatory requirements and limitations. See,
"Supervision and Regulation."
In summary, we can give no assurances that any dividends will
be declared by Horizon or, if declared, what the amount of the
dividends will be or whether such dividends, once declared, would
continue.
BUSINESS
Horizon
Horizon was incorporated in the State of Florida on May 27,
1998, under the name of Manasota Group, Inc. In anticipation of
the filing for regulatory approval for the Bank, we amended the
Articles of Incorporation, on October 2, 1998, changing the name
to Horizon Bancorporation, Inc. We further amended the Articles
of Incorporation to include the authorization of additional
capital stock and customary anti-takeover provisions typical in
the case of a bank holding company for a community bank. We
anticipate filing an application with the Fed for authority to
become a bank holding company on or about March 1, 1999.
Our temporary offices are currently located at Suite C, 3005-
26th Street West, Bradenton, Florida 34205, with our telephone
number being (941) 753-2265. Our permanent offices will be
located at 901-53rd Avenue East, Bradenton, Florida 34203, at the
Bank's proposed main banking facility.
Horizon is authorized to engage in any activity permitted by
law to a corporation, subject to applicable federal and state
regulatory restrictions on the activities of bank holding
companies. The holding company structure will provide us with
greater flexibility than the Bank would otherwise have to expand
and diversify its business activities, such as through newly
formed subsidiaries or through acquisitions. While we have no
present plans to engage actively in any other business
activities, we will study the feasibility of establishing or
acquiring subsidiaries to engage in other business activities to
the extent permitted by law.
Our principal assets will consist initially of the net proceeds
of the offering and the Bank's stock. These assets will be used
to fund our initial activities. Whether we will need additional
capital will depend to a great extent upon the capital needs of
the Bank, which, in turn, will depend upon the level of deposits
and total assets of the Bank. The Bank's capital needs for at
least the next three years are expected to be satisfied from the
proceeds of the offering and from normal business operations. If,
after the first three years, the Bank were to grow at a more
rapid rate than anticipated, the Bank's capital needs could
exceed the amount of capital retained by us from the offering. We
believe that additional capital would be available through the
sale of additional securities or debt offerings.
The Bank
General
The Bank is currently being organized under the laws of the
State of Florida as a state-chartered commercial bank which is a
member of the Federal Reserve System and which deposits are
insured by the FDIC. The Bank applied for both the charter and
deposit insurance on October 12, 1998, and expects to receive
approval of both its applications on or before February 12, 1999.
The Bank's initial capitalization will be provided from the net
proceeds of the offering by Horizon purchasing 1,000,000 shares
of the Bank's common stock. The purchase price per share will be
established at the level which will provide the Bank with the
total amount of capital and surplus sufficient to meet the
minimum capitalization level set for the Bank by the Florida
Department.
Immediately upon obtaining all regulatory approvals and being
capitalized, the Bank will engage in attracting deposits from the
general public and will make commercial, consumer and real estate
loans. We anticipate that the Bank will commence operations on
May 1, 1999, assuming the completion by such date of at least the
minimum offering.
The organizers developed a market analysis with respect to the
proposed primary service area and a proprietary business plan
that were included in their applications to the regulatory
authorities. The Bank's business plan for its initial years of
operation relies principally upon local advertising and
promotional activity and upon personal contacts by its directors,
officers and shareholders to attract business and to acquaint
potential customers with the Bank's personalized services. The
Bank intends to emphasize a high degree of personalized client
service in order to be able to serve each customer's banking
needs. The Bank's marketing approach will emphasize the
advantages of dealing with an independent, locally-owned and
headquartered commercial bank to meet the particular needs of
individuals, professionals and small to medium-sized businesses.
We will continually evaluate all banking services with regard to
their profitability and make effort to modify the Bank's business
plan if the plan does not prove successful.
We believe that the Bank's business plan will make the Bank
profitable by the end of the second year of operations. However,
it has been the experience in the banking industry for new
financial institutions to lose money in the first several years
of operation. There can be no assurance as to when or whether the
Bank's operations will become profitable.
Primary Service Area
The Bank's primary service area ("PSA") will be Bradenton,
Florida and the surrounding area of Manatee County. Manatee
County is situated in the Tampa Bay region, south of Tampa and
north of Sarasota. Bradenton is the county's largest city and the
county seat. The PSA from which the Bank expects to draw 75% of
its business is defined as the 29 census tracts bounded on the
north by the Manatee River, on the south by the Manatee County
line, on the east by the Braden River/38th Street and on the West
by Sarasota Bay/Palma Sola Bay. The 1998 population in the PSA
has been estimated at 161,899 and has been projected to rise to
172,379 by the year 2003. Total employment is estimated at
88,000, and the median age for the PSA is estimated at 42.4 years
(slightly higher than the statewide average of 39.9 years).
Service and retail industries employ almost 75% of the
workforce and account for almost two-thirds of the payroll
dollars in Manatee County. In 1997, the PSA had an average
household income of $33,447, which is projected to increase to
$38,503 by 2003, with more than 47% of the households in the PSA
having an annual income in excess of $25,000.
Competition
The Bank will experience competition in attracting and
retaining business and personal checking and savings accounts,
and making commercial, consumer and real estate loans and
providing other services in the PSA. The primary factors in
competing for such accounts are interest rates, the range of
financial services offered, convenience of office locations and
flexible office hours. Direct competition for such accounts comes
from other commercial banks, savings institutions, credit unions,
brokerage firms and money market funds. The primary factors in
competing for loans are interest rates, loan origination fees and
the range of lending services offered. Competition for
origination of loans normally comes from other commercial banks,
savings institutions, credit unions and mortgage banking firms.
Such entities may have competitive advantages as a result of
greater resources and higher lending limits (by virtue of their
greater capitalization). Such competitors also may offer their
customers certain services which the Bank will not provide
directly but might be offered indirectly by the Bank through
correspondent institutions.
As of June 30, 1997, there were eleven commercial banks, six
savings banks and savings and loan institutions operating in the
PSA and Manatee County. Their 60 and 89 branches had combined
deposits of $2.2 billion and $2.9 billion, respectively, within
the PSA and Manatee County, respectively. Deposit growth during
1996-1997 of the two community banks among the commercial banks
was the highest among all financial institutions both in terms of
volume and percentage change.
We may encounter increased competition as a result of the
enactment in 1997 of Florida legislation implementing the Riegle-
Neal Interstate Banking and Branch Efficiency Act of 1994 (the
"Interstate Banking Act"). In general terms, the legislation
lowers the barriers for entry into Florida by out-of-state
institutions. See, "Supervision and Regulation - Recent
Legislative Developments."
Employees
As of the date of this Prospectus, the only persons receiving
remuneration from the Company are Charles S. Conoley, the
President and Chief Executive Officer of Horizon and the Bank
pursuant to a consulting agreement and Jerilynn Chapin, Corporate
Administrator. Horizon, the Bank and Mr. Conoley have also
entered into an employment agreement which will become effective
upon release of subscription proceeds from escrow. See,
"Management - Remuneration of Officers and Directors." Unless we
expand our operations into other activities permitted by law for
a bank holding company, it is unlikely that we will have many
employees. During the first year of operations, we anticipate
that the Bank will employ approximately twelve full-time
employees of whom, it is estimated, that six will be officers of
the Bank. During the pre-opening phase, we anticipate that the
Bank will employ five full-time employees of whom, it is
estimated, that three will be officers of the Bank
Property
On October 6, 1998, we entered into a lease for 500 square feet
of space at Suite C, 3005-26th Street West, Bradenton, Florida
34205. The lease is for twelve months, with a minimum of nine
months, at $450 per month plus cost of electricity. We will use
this office as headquarters and for "back office" activities of
the Bank pending opening of the Bank's main banking facility.
Effective September 30 1998, Horizon entered into an agreement
to purchase a 1.05-acre parcel to be used as the site for the
main banking facility of the Bank and our headquarters. Assuming
all contingencies are timely satisfied, the Bank will purchase
the site on March 24, 1999, for $407,500. The facility, to be
located at the site at 901-53rd Avenue East, Bradenton, Manatee
County, Florida 34203, will be one story, with approximately
5,000 square feet of finished space, expandable to a maximum of
7,000 square feet of finished space, and with four interior
teller stations and four exterior drive-thru teller stations and
30 parking spaces. The interior will also include executive
offices, work stations for support staff, a vault and safe
deposit box storage areas. We expect that total construction
costs, including landscaping and site improvements and
architectural and engineering fees, will be $665,000 , with
construction expected to be completed by October 31, 1999,
assuming the completion of at least the minimum offering by May
1, 1999. We estimate the cost of furniture, fixtures and
equipment for the main banking facility to be approximately
$258,017.
We will install a modular office temporarily at the banking
facility site pending the completion of the construction of the
permanent facility, at which deposit and withdrawal transactions
would be conducted. We believe that use of the modular office
will permit the Bank to generate revenues and deposit balances
pending completion of the construction of the banking facility,
which benefits would exceed the costs of deploying the modular
office.
The Bank will be open from 9:00 a.m. to 4:00 p.m., Monday
through Thursday and from 9:00 a.m. to 6:00 p.m. on Friday, with
the drive-through teller station being open from 8:00 a.m. to
6:00 p.m. Monday through Friday.
Bank Services Generally
The Bank will offer a full range of commercial banking services
to individual, professional and business customers in its PSA.
These services will include personal and business checking
accounts and savings and other time certificates of deposit. The
transaction accounts and time certificates will be at rates
competitive with those offered in the PSA. Customer deposits with
the Bank will be insured to the maximum extent provided by law
through the FDIC. The Bank plans to issue credit cards and to act
as a merchant depository for cardholder drafts under both Visa
and MasterCard. The Bank intends to offer night depository and
bank-by-mail services and to sell traveler's checks (issued by an
independent entity) and cashier's checks. The Bank does not
anticipate offering trust and fiduciary services initially and
will rely on trust and fiduciary services offered by
correspondent banks until the Bank determines that it is
profitable to offer such services directly.
Lending Activities
The Bank will seek to attract deposits from the general public
and will use such deposits, together with borrowings and other
sources of funds, to originate and purchase loans. The Bank will
offer a full range of short and medium-term commercial, consumer
and real estate loans. The Bank will attempt to react to
prevailing market conditions and demands in its lending
activities, while avoiding excessive concentrations of any
particular loan category. The Bank has not yet fixed specific
goals with respect to lending concentration by type of loan and
the Bank's written loan policy is in the process of being
developed and will be approved by the Florida Department prior to
issuing a permit to begin business to the Bank. The Bank will
develop a loan approval process which will provide for various
levels of officer lending authority. When a loan amount exceeds
an officer's lending authority, it will be transferred to an
officer with a higher limit, with ultimate lending authority
resting with the Loan Committee of the Board of Directors.
The risk of nonpayment (or deferred payment) of loans is
inherent in making all loans. However, management of the Bank
intends to carefully evaluate all loan applicants and to attempt
to minimize its credit risk exposure by use of thorough loan
application and approval procedures that will be established for
each category of loan prior to beginning operation. In
determining whether to make a loan, the Bank shall consider
matters such as the borrower's credit history, analyze the
borrower's income and ability to service the loan and evaluate
the need for collateral to secure recovery in the event of
default.
Under Florida law, the Bank is limited in the amount it can
loan to a single borrower (and its related interests) to no more
than 15% of the Bank's statutory capital base, unless the loan in
excess of 15% of the statutory capital base is approved by the
Bank's Board of Directors and unless the entire amount of the
loan is secured. In no event, however, may the loan be greater
than 25% of the Bank's statutory capital base. It is expected
that the Bank's legal lending limit under Florida law for one
borrower, based upon its initial statutory capital base, will be
approximately $650,000 for unsecured loans and $1,100,000 for
fully secured loans. The Bank's loan policy, when developed and
approved by the Florida Department, may establish a lower lending
limit.
The Bank will maintain an allowance for loan losses based upon
management's assumptions and judgments regarding the ultimate
collectibility of loans in its portfolio and based upon a
percentage of the outstanding balances of specific loans when
their ultimate collectibility is considered questionable. Certain
risks with regard to specific categories of loans are described
below.
Commercial Loans. Commercial lending activities will be
directed principally toward businesses whose demand for funds
will fall within the Bank's anticipated lending limit, such as
small to medium-size professional firms, retail and wholesale
businesses, light industry and manufacturing concerns operating
in and around the Bank's primary service area. The types of loans
provided will include principally term loans with variable
interest rates secured by equipment, inventory, receivables and
real estate, as well as secured and (to a limited extent)
unsecured working capital lines of credit. Repayment of these
loans will be dependent upon the financial success of the
business borrower and, in the discretion of the Bank, personal
guarantees may be obtained from the principals of business
borrowers and/or third parties to further support the borrower's
ability to service the debt and reduce the risk of nonpayment.
Real Estate Loans. Real estate lending will be oriented toward
short-term interim loans and construction loans. The Bank may
originate a limited number of variable-rate residential and other
mortgage loans for its own account and both variable and fixed-
rate residential mortgage loans for resale. The residential loans
will be secured by first mortgages on one-to-four family
residences in the Bank's market area. Loans secured by second
mortgages on a borrower's residence may also be made.
Consumer Loans. Consumer lending will be made on a secured or
unsecured basis and will be oriented primarily to the
requirements of the Bank's customers, with an emphasis on
automobile financing, home improvements, debt consolidation and
other personal needs. Consumer loans will generally involve more
risk than first mortgage loans because the collateral for a
defaulted loan may not provide an adequate source of repayment of
the principal due to damage to the collateral or other loss of
value while the remaining deficiency often does not warrant
further collection efforts. In addition, consumer loan
performance is dependent upon the borrower's continued financial
stability and are therefore, more likely to be adversely affected
by job loss, divorce, illness or personal bankruptcy. Various
federal and state laws, including federal and state bankruptcy
and insolvency laws, may also limit the amount which can be
recovered.
Asset and Liability Management
The primary assets of the Bank will consist of its loan
portfolio and investment accounts. Consistent with the
requirements of prudent banking necessary to maintain liquidity,
we will seek to match maturities and rates of loans and the
investment portfolio with those of deposits, although exact
matching is not always possible. We will seek to invest the
largest portion of the Bank's assets in commercial, consumer and
real estate loans. We anticipate that loans will be limited to
less than 74% of deposits and capital funds; however, this ratio
may be exceeded in the Bank's initial period of operation. We
anticipate that the Bank's investment account will consist
primarily of marketable securities of the United States
government, federal agencies and state and municipal governments,
generally with varied maturities.
The Bank's investment policy will provide for a portfolio
divided among issues purchased to meet one or more of the
following objections:
* to complement strategies developed in assets/liquidity
management, including desired liquidity levels;
* to maximize after-tax income from funds not needed for day-to-
day operations and loan demand; and
* to provide collateral necessary for acceptance of public
funds.
We anticipate that this policy will allow the Bank to deal with
seasonal deposits fluctuations and to provide for basic liquidity
consistent with the Bank's loan demand and, when possible, to
match maturities with anticipated liquidity demands. Longer term
securities may be selected for a combination of yield and
exemption from federal income taxation when appropriate. Deposit
accounts will represent the majority of the liabilities of the
Bank. These will include savings accounts, transaction accounts
and time deposits.
Initially, the Bank anticipates deriving its income principally
from interest charged on loans and, to a lesser extent, from
interest earned on investments, fees received in connection with
the origination of loans and miscellaneous fees and service
charges. The Bank's principal expenses are anticipated to be
interest expense on deposits and operating expenses. The funds
for such activities are anticipated to be provided principally by
operating revenues, deposit growth, purchase of federal funds
from other banks, repayment of outstanding loans and sale of
loans and investment securities.
SUPERVISION AND REGULATION
We provide the following as a summary of statutes and
regulations affecting bank holding companies. Such summary is
qualified in its entirety by reference to such statutes and
regulations.
Supervision and Regulation of Horizon
Horizon will be a bank holding company within the meaning of
the federal Bank Holding Company Act of 1956, as amended. As a
bank holding company, Horizon will be required to file with the
Fed annual and semi-annual reports and information regarding its
business operations and those of the Bank. Horizon and the Bank
will also be subject to examination by the Fed.
A bank holding company is required by the federal Bank Holding
Company Act to obtain approval from the Fed prior to acquiring
control of any bank that it does not already own or engaging in
any business other than banking or managing, controlling or
furnishing services to banks and other subsidiaries authorized by
the statute. The Fed would approve the ownership of shares by a
bank holding company in any company the activities of which it
has determined by order or regulation to be so closely related to
banking or to managing or controlling banks as to be a proper
incident thereto. In other words, we would require Fed approval
if we were to engage in any of the foregoing activities.
Horizon would be compelled by the Fed to invest additional
capital in the event the Bank experiences either significant loan
losses or rapid growth of loans or deposits. The Fed requires a
bank holding company to act as a source of financial strength and
to take measures to preserve and protect its bank subsidiaries
As a bank holding company, we will be subject to capital
adequacy guidelines established by the Fed. Under the Fed's
current risk-based capital guidelines for bank holding companies,
the minimum required ratio for total capital to risk weighted
assets we will be required to maintain is 8 percent (of which at
least 4 percent must consist of Tier 1 capital). Tier 1 capital
consists of common and qualifying preferred stock and minority
interests in equity accounts of consolidated subsidiaries, less
goodwill and other intangible assets. Because we will be a bank
holding company with less than $150 million in total consolidated
assets, these guidelines will be applied on a Bank only basis.
These risk-based capital guidelines establish minimum standards
and bank holding companies generally are expected to operate well
above the minimum standards.
Following completion of the offering, Horizon will also be
subject to the requirements of the Securities Exchange Act of
1934, which include the filing of annual, quarterly and other
reports with the SEC.
Supervision and Regulation of the Bank
The Bank will be examined and regulated by the Florida
Department and the Fed. Under Florida law and Florida
Department's regulations, the Bank may pay cash dividends only to
the extent of the sum of
* current period net profits; plus
* 80% of its cumulative retained (i.e. undistributed) net
profits for the preceding two years or, with the approval of the
Florida Department, 80% of its cumulative retained net profits
for a period longer than two years.
Also, no dividend will be permitted to be paid by the Bank if
* the sum of the amounts equal to the remaining 20% of the
retained net profits for the periods from which the 80% is used
to pay the dividends is less than the Bank's book value of its
common and preferred stock; or
* the sum of the current period net profits plus the retained
net profits for the preceding two years is less than zero.
The Bank's deposits will be insured by the FDIC for a maximum
of $100,000 per depositor. For this protection, the Bank will pay
a semi-annual statutory assessment and will be subject to the
rules and regulations of the FDIC. In case of member banks such
as the Bank, the Fed has the authority to prevent the continuance
or development of unsound and unsafe banking practices, to
approve conversions, mergers and consolidations.
As a member of the Fed, the Bank will also be subject to rules
which restrict preferential loans by the Bank to "insiders,"
require the Bank to keep information on loans to principal
shareholders and executive officers; and prohibit certain
director and officer interlocks between financial institutions.
Also, under the Fed's current risk-based capital guidelines for
member banks, the Bank will be required to maintain a minimum
ratio of total capital to risk weighted assets of 8 percent (of
which at least 4 percent must consist of Tier 1 capital).
In addition, the Fed requires its member banks to maintain of a
minimum ratio of Tier 1 capital to total assets. This capital
measure is generally referred to as the leverage capital ratio.
The minimum required leverage capital ratio is 4 percent if the
Fed determines that the institution is not anticipating or
experiencing significant growth and has well-diversified risks --
including no undue interest rate exposure, excellent asset
quality, high liquidity and good earnings -- and, in general, is
considered a strong banking organization and rated Composite 1
under the Uniform Financial Institutions Rating Systems. If the
Bank does not satisfy any of these criteria it may be required to
maintain a ratio of total capital to risk-based assets of 10
percent and a ratio of Tier 1 capital to risk-based assets of at
least 6 percent. With respect to the leverage capital ratio, the
Bank would then be required to maintain a 5 percent ratio.
Monetary Policy
Banking is a business that depends on interest rate
differentials. The difference between the interest rates paid by
the Bank on its deposits and other borrowings and the interest
rate received on loans extended to its customers and on
securities held in its portfolio comprises the major portion of
the Bank's earnings.
The earnings and growth of the Bank will be affected not only
by general economic conditions, both domestic and foreign, but
also by the monetary and fiscal policies of the United States and
its agencies, particularly the Fed. The Fed implements national
monetary policy (as opposed to fiscal policy), such as seeking to
curb inflation and combat recession, by its open market
operations in United States government securities, adjustments in
the amount of industry reserves that banks and other financial
institutions are required to maintain and adjustments to the
discount rates applicable to borrowings by banks from the Fed.
The actions of the Fed in these areas influence the growth of
bank loans, investments and deposits and also affect interest
rates charged and paid on deposits. We cannot predict the nature
and impact of any future changes in monetary policies.
Recent Legislative Developments
Under recent Florida legislation, which is designed to
implement the Interstate Banking Act, a non-Florida bank may not
open de novo branches in Florida but may, beginning May 31, 1997,
acquire by merger a Florida bank and operate its branches (and
establish new branches) after the merger, provided that the
Florida bank is at least three years old. Also, effective May 31,
1997, recent Florida legislation prohibits the establishment in
Florida of de novo banks by non-Florida bank holding companies.
Such a company may, however, acquire a Florida bank or bank
holding company, provided that the Florida bank involved is at
least three years old. These interstate acquisitions are
prohibited (other than in case of an initial entry into Florida
by a bank holding company) if they result in the control of more
than 30% of the total amount of insured deposits in Florida. This
legislation has the potential of increasing the competitive
forces to which we would be subject.
The United States Congress has periodically considered and
adopted legislation that has resulted in, and could further
result in, deregulation of both banks and other financial
institutions. Such legislation could further eliminate geographic
restrictions on banks and bank holding companies and current
prohibitions against banks engaging in certain non-banking
activities. Such legislative changes could place us in more
direct competition with other financial institutions, including
mutual funds, securities brokerage firms, insurance companies and
investment banking firms. We cannot predict what other
legislation might be enacted, and if enacted, the effect thereof.
MANAGEMENT
Directors and Executive Officers
The current members of the Board of Directors of Horizon are
the nine organizers. They are divided into three classes that
serve staggered three-year terms. The members of one class are
elected at each annual meeting of shareholders and hold office
until the third annual meeting following their election or until
successors are elected and qualified. The following table sets
forth certain information with respect to the current directors
and executive officers of Horizon and the Bank.
Name (Age)
*Position With Company
**Position With Bank
Clarence R. Urban (54)
*Director, Chairman of the Board of Directors
** Director, Chairman of the Board of Directors
Charles S. Conoley (39)
*Chief Executive Officer, President and Director
**Chief Executive Officer, President and Director
Thomas C. Bennett, Jr. (75)
*Director
**Director
Michael Shannon Glasgow (30)
*Director
**Director
C. Donald Miller, Jr. (61)
*Director
**Director
Stephen C. Mullen (45)
*Director
**Director
David K. Scherer (37)
*Director
**Director
Bruce E. Shackelford (43)
*Director
**Director
MaryAnn P. Turner (37)
*Director
**Director
The business and residential addresses, respectively, of the
above-named directors and executive officers of the Company are
as follows:
NAME:
BUSINESS ADDRESS
RESIDENTIAL ADDRESS
Thomas C. Bennett, Jr.
6144-9th Avenue Cir., N.E.
Bradenton, FL 34202
6144-9th Avenue Cir., N.E.
Bradenton, FL 34202
Charles S. Conoley
Suite C, 3005-26th St., W.
Bradenton, FL 34205
410-68th Court, N. W.
Bradenton, FL 34209
Michael Shannon Glasgow
1209-44th Avenue East
Bradenton, FL 34203
719-46th St. Court E.
Palmetto, FL 34221
C. Donald Miller, Jr.
1111-3rd Ave. West
Bradenton, FL 34205
216-21st St., W
Bradenton, FL 34216
Stephen C. Mullen
8440 North Tamiami Trail
Sarasota, FL 34243
820 Idlewild Way
Sarasota, FL 34242
David K. Scherer
4239-63rd St. West.
Bradenton, FL 34209
5008 Mangrove Pt., Rd.
Bradenton, FL 34210
Bruce E. Shackelford
1205-28th Ave. & Highway 30
Ellenton, FL 34222
5310 Jim Davis Rd.
Parrish, FL 34219
Mary Ann P. Turner
2504-64th St. Ct. East
Bradenton, FL 34208
1822-97th St., N. W.
Bradenton, FL 34209
Clarence R. Urban
2108 Whitfield Park Loop
Sarasota, FL 34243
3319-59th Avenue Dr., E
Bradenton, FL 34203
Messrs. Conoley, Glasgow and Shackelford are currently serving
in Class I with terms expiring in 1999, Messrs. Bennett, Miller
and Mullen are currently serving in Class II with terms expiring
in 2000, and Messrs. Scherer, Urban and Ms. Turner are currently
serving in Class III with a term expiring in 2001. The business
experience of each of the directors and executive officers of the
Company and the Bank is set forth below.
Thomas C. Bennett, Jr., age 75, has been engaged in the real
estate development business in Manatee County for the last twelve
years and in the real estate brokerage business for the last two
years. He served as a director in two community banks, one of
which was sold to Barnett Bank in 1983 and the other sold to
SouthTrust Bank, N.A., in 1995.
Charles S. Conoley, age 39, has served as an officer of several
commercial banks for the last fourteen years; including during
1993-1998, as a Vice President and commercial loan officer for
American Bank, in Bradenton, Florida (with $400 million in
assets), during 1991-1993 as Corporate Vice President for a
Barnett Bank affiliate in Miami (with over $5 billion in assets)
and during 1989-1991 as Senior Vice President and Senior Credit
Policy Officer for a Barnett Bank affiliate in Bradenton (with
$770 million in assets). Mr. Conoley has received his MBA in
Finance and Accounting from Indiana University in Bloomington,
Indiana and his undergraduate degree from Purdue University.
Michael Shannon Glasgow, age 30, has been employed for the past
five years with USA Steel Fence, Inc., a commercial and
residential fence company that has operations in Bradenton,
Lakeland, Gibsonton, Englewood and St. Petersburg, Florida,
serving for the last three years as President and, prior to that,
for two years as vice president. Mr. Glasgow is also the owner
of USA Pawn, USA Land Company, and USA Used Cars, all of
Bradenton, Florida. He also serves as Vice President for USA
Group, Inc., USA Real Estate, and Approved Roofing, Inc., also of
Bradenton, Florida.
C. Donald Miller, Jr., age 61, has served as President of
Miller Enterprises of Manatee, Inc., which is engaged in real
estate investments and other businesses, for the last five years.
He is a past President of the Manatee County Chamber of Commerce.
Stephen C. Mullen, age 45, has, for the past five years, served
as owner/operator of Park Inn International Hotel in Bradenton
and, for the last year, as owner/operator of the Quality Inns &
Suites at Sarasota/Bradenton Airport. He is also the president of
Granjac Resorts, Inc., a hotel management company and Mullen
Development, Inc. a real estate company.
David K. Scherer, age 37, has, for the past eleven years,
served as principal and the President of TDS Construction, Inc.,
a construction company that specializes in the construction of
retail stores throughout the United States. The company has been
headquartered in Bradenton, Florida, for the past six years and
was previously located in Elizabethtown, Kentucky.
Bruce R. Shackelford, age 43, has, for the past five years,
served as President of Four Star Tomato, Inc., R&S Sales and
Management, Inc. and Western Tomato Growers & Shippers, Inc., all
companies engaged in food production and distribution. He is
also the general partner of Triple-S Farms, a farming operation.
Mary Ann P. Turner, age 37, has, for the past five years,
served as the Vice President and CFO of Len-Tran, Inc., a
commercial landscape contracting company with offices in
Bradenton and Naples, Florida. Mrs. Turner is also Vice
President and CFO of Turner Equipment Sales, Inc., a farm and
construction equipment dealership based in Patrick Springs,
Virginia.
Clarence R. Urban, age 53, has, for the past five years, served
as the owner and President of Arcade Lithographing Corporation
and, for the last year, as owner and President of Superior Color
Plate, Inc. of Bradenton and Sarasota, respectively. Arcade is
one of the largest commercial printers on the West Coast of
Florida and Superior is a leader in color separations for
printers throughout the Southeast and Caribbean.
Remuneration of Directors and Officers
Our directors, other than Charles S. Conoley, have not received
and will not receive fees or other compensation in connection
with the organization of Horizon. They will not be paid fees for
their service on or at meetings of the Board of Directors or
committees thereof, until such time as the Bank has become
profitable on a cumulative basis.
Charles S. Conoley and Horizon have entered into a Consulting
Agreement, dated June 8, 1998, describing Mr. Conoley's duties on
behalf of Horizon in connection with the organization of the
Bank. Pursuant to the terms of the consulting contract, Mr.
Conoley is paid at the rate of $5,000 per month until the Bank's
charter application is filed, $6,000 per month until we
successfully complete the minimum offering and a bonus of $16,000
upon the opening of the Bank for business. The consulting
contract terminates at the earlier of June 7, 1999, or the date
the Bank opens for business.
On October 28, 1998, Horizon, the Bank and Mr. Conoley entered
into an Employment Agreement, which effective date would be the
date of the termination of the consulting contract, except that
if the consulting contract terminates due to the failure of the
Bank to open for business by June 7, 1999, then Mr. Conoley's
employment would be deemed extended at the compensation levels
provided in the consulting contract until the earlier of the
opening of the Bank for business or December 31, 1999. Pursuant
to the employment agreement, Mr. Conoley would serve as Chief
Executive Officer and President of Horizon and the Bank at an
annual base salary of $96,000, which base salary would increase
each year by the percentage increase in the Consumer Price Index.
The term of the employment agreement would end on December 31,
2004, unless earlier terminated due to:
* failure of the Company to complete the minimum offering by
December 31, 1999;
* Mr. Conoley's death;
* Mr. Conoley's complete disability; or
* a circumstance considered "for cause," which includes an act
or conduct considered by the Board of Directors to be
inappropriate and the failure of the Bank to perform at an
acceptable level of profitability and growth.
In addition to his base salary, Mr. Conoley would also receive
a performance bonus ranging from 10% to 50% of his annual base
salary depending on certain defined performance objectives and
the Bank's composite rating. Under the employment agreement, Mr.
Conoley would be granted options to purchase shares equal to 3%
of the total shares sold in the offering. The options would vest
ratably over a five-year period, with an exercise price of $5.00
and an expiration date of ten years from the date of issue.
Under the employment agreement, Mr. Conoley would also be
entitled to employee benefits, such as an annual vacation, the
use of a Bank-owned automobile, life and medical insurance with
dependant coverage, dental insurance, country and civic club
membership and reimbursement for reasonable business related
expenses and for the Bank to purchase a $250,000 term life
insurance policy on his life.
Also, the employment agreement provides for a severance payment
for Mr. Conoley and an automatic vesting of all outstanding stock
options in the event of Mr. Conoley's termination (except for
cause) after a change of control of the Bank. Under the
employment agreement, the term "control" means the acquisition of
25 percent or more of the voting securities of the Bank by any
person, or persons acting as a group within the meaning of
Section 13(d) of the Exchange Act, or the acquisition of between
10 percent and 25 percent if the Board of Directors of the Bank
or any regulatory authority has made a determination that such
acquisition constitutes or will constitute control of the Bank.
Limitation on Directors' Liability
Horizon's Articles of Incorporation contain a provision which,
in accordance with Florida law, eliminates or limits the personal
liability of directors to Horizon and its shareholders for
monetary damages for certain breaches of their duty of care or
other duty. This provision provides that a director will not be
personally liable for monetary damages for a breach of his or her
duty of care or other duty as a director, except for liabilities
for
* any appropriation, in violation of the director's duties, of
any business opportunity of the Company;
* acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
* authorization of improper dividends or redemptions; or
* any transaction from which the director derived an improper
personal benefit.
Liability for monetary damages remains unaffected by such
provision if liability is based on any of these grounds.
Liability for monetary damages for violations of federal
securities laws would also remain unaffected. The provision does
not eliminate a director's fiduciary duty, nor does it preclude a
shareholder from pursuing injunctive or other equitable remedies.
The provision was prompted in part by adverse changes in the cost
and availability of director and officer liability insurance and
by a concern that corporations would encounter difficulties in
attracting and retaining qualified directors. We believe this
provision in is essential to maintain and improve our ability to
attract and retain competent directors.
We are advised that, insofar as indemnification of directors,
officers and controlling persons for liabilities arising under
the Securities Act of 1933, such indemnification is against
public policy and is, therefore, unenforceable.
CERTAIN TRANSACTIONS
Organizers' and Directors Shares, Warrants and Stock Options
Pursuant to the certain Organizer's Contribution Agreement,
dated May 20, 1998, the organizers listed therein (except Warren
E. Gagner and Bruce R. Woodruff) have agreed to subscribe for
260,000 shares. In addition, two additional organizers, Thomas C.
Bennett, Jr. and C. Donald Miller, Jr., have in the aggregate
agreed to subscribe to 4,000 shares. The organizers may, but are
not obligated to, purchase additional shares if such purchases
are necessary to complete the minimum offering. Unless this
limitation is waived by a vote of 75% of the members of Horizon's
Board of Directors, no organizer, director or officer (and its
affiliates) will be permitted to purchase an amount of shares
which would exceed 9.9% (including shares owned by their
immediate family members and affiliates) of the total number of
shares outstanding upon completion of this offering; this
limitation applies to all subscribers for the shares. Shares
purchased in this offering by organizers are being purchased for
investment purposes and not for resale.
In recognition of the financial risks the organizers have
already undertaken and will have undertaken if the offering is
not successful, as well as an incentive for them to serve as
directors, each Organizer will receive a warrant. Each warrant
will entitle the organizer, for each share purchased by the
organizer in the offering (but limited to the shares he or she
agreed to purchase under the contribution agreement), to
purchase, at any time within ten years from the date the Bank
opens for business, an additional share at $5.00 per share.
The warrants are not immediately exercisable; the right to
exercise the warrants will vest with respect to one-third (1/3)
of the shares subject to the warrants on each anniversary of the
date the Bank opened for business so long as the organizer has
served continuously as a director of Horizon and the Bank from
its opening until the particular anniversary and has attended a
minimum of 75% of the Board of Directors meetings during such
period. However, all the warrants will become vested upon the
change in control of the Bank, or a sale by the Bank of all or
substantially all its assets.
Whether the grant of warrants will occur at all, and the terms
of the warrants, are subject to approval of the FDIC. One of the
conditions for FDIC's approval is likely to be that Horizon has
the right, upon notice from any regulatory authority, to require
immediate exercise or forfeiture of the warrants if, in the Board
of Directors' opinion, such exercise is reasonably necessary to
satisfy conditions imposed by such regulatory authority.
We are considering the establishment of a stock option plan
under which stock options would be issued to key employees of
Horizon and the Bank and, to a lesser extent, to the directors.
The total number of shares to be issued pursuant to this plan
will in no event exceed 10% of the total number of shares
outstanding immediately after the offering.
Other Stock Options
Pursuant to the certain Consulting Agreement by and among
Horizon, Bank Resources, Inc. and E. Byron Richardson, dated June
22, 1998, Mr. Richardson will receive, upon receipt by the Bank
from the Florida Department of its permit to begin business,
stock options to purchase 4,000 shares at $5.00 per share. The
options would vest immediately and would be exercisable within
ten years from the date of grant.
Organizational Subscriptions
In connection with the organization of Horizon, the organizers
have previously subscribed for 21,600 shares at a price of $5.00
per share. The proceeds from the sale of organizational shares
have been and will continue to be used for the purpose of paying
offering, organizational and other expenses which Horizon and the
Bank will have incurred prior to release of the offering proceeds
from the escrow account. Upon release of the offering proceeds
from escrow, we will redeem all of these organizational shares at
their original purchase price. The terms of the redemption and
the parties' obligations with respect thereto are set forth in
that certain Stock Redemption Agreement by and among Horizon and
the organizers, dated as of October 28, 1998.
Lending and Other Matters
It is anticipated that our directors and officers, and the
businesses and other organizations with which they are
associated, will have banking transactions in the ordinary course
of business with the Bank. It will be the policy of the Bank
that any loans or other commitments to such persons or entities
will be made in accordance with applicable law and on
substantially the same terms, including interest rates and
collateral, as those prevailing at the time for comparable
transactions with other persons or entities of similar standing.
In addition, any loans to executive officers, directors or their
related interests in excess of $25,000 will require the prior
approval of a majority of the entire Board of Directors as
provided under Florida law. All future transactions with
affiliates will be on terms no less favorable than could be
obtained from an unaffiliated third party and will be subject to
approval by a majority of directors including a majority of
disinterested directors.
In addition, each loan by the Bank to any officer, director or
controlling person of the Bank or any of its affiliates may be
made only in compliance with the following conditions: The loan
* will be evidenced by a promissory note naming the Bank as
payee, will contain an annual percentage rate which is reasonably
comparable to that normally charged to non-affiliates by other
commercial lenders for similar loans made in the Bank's locale;
* will be repaid pursuant to appropriate amortization
schedules and contain default provisions comparable to those
normally used by other commercial lenders for similar loans made
to non-affiliates in the Bank's locale;
* will be made only if credit reports and financial
statements, or other reasonable investigation appropriate in
light of the nature and terms of the loan and which meet the loan
policies normally used by other commercial lenders for similar
loans made to non-affiliates in the Bank's locale show the loan
to be collectible and the borrower a satisfactory credit risk;
and
* the purpose of the loan and the disbursement of proceeds are
reviewed and monitored in a manner comparable to that normally
used by other commercial lenders for similar loans made in the
Bank's locale.
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding
the shares and the warrants that each organizer agreed to
subscribe for and will be entitled to receive, and the aggregate
number of such shares and warrants of all the organizers as a
group.
ANTICIPATED SHARE OWNERSHIP AND WARRANTS AFTER OFFERING*
NAME
POSITION
NUMBER OF SHARES (1)
MINIMUM OFFERING PERCENT
MAXIMUM OFFERING PERCENT
SHARES CALLED FOR BY WARRANTS
Thomas C. Bennett, Jr.
Organizer and Director
2,000
.19%
.13%
2,000
Charles S. Conoley
Organizer, Director and CEO
40,000
3.81%
2.66%
40,000
Michael Shannon Glasgow
Organizer and Director
50,000
4.76%
3.33%
50,000
C. Donald Miller, Jr.
Organizer and Director
2,000
.19%
.13%
2,000
Stephen C. Mullen
Organizer and Director
25,000
2.38%
1.66%
25,000
David K. Scherer
Organizer and Director
40,000
3.81%
2.66%
40,000
Bruce E. Shackelford
Organizer and Director
25,000
2.38%
1.66%
25,000
Mary Ann P. Turner
Organizer and Director
40,000
3.81%
2.66%
40,000
Clarence R. Urban
Organizer and Director
40,000
3.81%
2.66%
40,000
TOTAL 264,000
25.14%
17.60%
264,000
* Except as otherwise indicated, the persons named in the above
table will have sole voting and investment power with respect to
all Shares shown as beneficially owned by them.
1 These numbers do not reflect any additional Shares which the
Organizers may purchase if such purchases are necessary to
complete the Minimum Offering or Shares which may be purchased by
any additional directors or officers of the Company or the Bank.
Options
The following table indicates the options to be granted to
persons listed therein. Each of the options will have a ten-year
term from the date of grant and will vest ratably over a five-
year period from the date of issue.
Name: Charles S. Conoley
Shares Subject to Options: 31,500*/45,000**
Price Per Share: $5.00
Date of Exercise: N/A
* Assumes the Minimum Offering of 1,050,000 Shares.
** Assumes the Maximum Offering of 1,500,000 Shares.
DESCRIPTION OF CAPITAL STOCK
Common Stock
Horizon is authorized by our Articles of Incorporation to issue
25,000,000 shares of common stock, $.01 par value.
Shareholders are entitled to one vote per share on all matters
to be voted on by shareholders and are not entitled to cumulate
their votes in the election of directors, which means that the
holders of a majority of the shares voting for the election of
directors can elect all of the directors then standing for
election should they choose to do so. Shareholders are entitled
to receive such dividends, if any, as may be declared from time
to time by the Board of Directors, subject to prior regulatory
approval, from funds legally available therefor. Shareholders are
entitled to share pro rata in any distribution to the holders of
common stock in the event of any liquidation, dissolution or
winding-up of Horizon.
Shareholders have no preemptive or other subscription or
conversion rights and there are no redemption or sinking fund
provisions with respect to the shares. The shares, upon payment
therefor, will be fully paid and non assessable.
Preferred Stock
Horizon is authorized by its Articles of Incorporation to issue
up to 1,000,000 shares of preferred stock, $.01 par value per
share. No shares of preferred stock have been issued. The Board
of Directors may, in its sole discretion and without further
action by the shareholders, from time to time, direct the
issuance of preferred stock, in one or more series, for any
proper corporate purpose with such preferences, voting powers,
conversion rights, qualifications, special or relative rights,
and privileges as the Board of Directors may determine. These
terms of the preferred stock could adversely affect the voting
power or other rights of holders of the shares. Satisfaction of
any dividend preferences on outstanding preferred stock would
reduce the amount of funds available for the payment of dividends
on the shares. In addition, the holders of preferred stock would
normally be entitled to receive a preference payment in the event
of any liquidation, dissolution or winding-up of Horizon before
any payment is made to the holders of the shares. The Board of
Directors has no present plans or understandings for the issuance
of any preferred stock and does not intend to issue any preferred
stock except on terms which the Board deems to be in the best
interest of Horizon and its shareholders.
Transfer Agent and Registrar
Unless we are required by law or administrative action to
appoint an independent transfer agent and registrar, the Bank
will act as transfer agent and registrar for the shares.
Reports to Shareholders
We intend to furnish the shareholders with annual reports
containing audited financial statements and quarterly reports
containing unaudited financial information.
Securities Eligible for Future Sale
Upon completion of the offering, Horizon will have a minimum of
1,050,000 shares and a maximum of 1,500,000 shares outstanding.
All of these shares will be freely tradable without restriction
or registration under the Securities Act of 1933, except for
shares purchased by persons who, as a result of positions with
Horizon (such as the directors and officers) or stock ownership
(such as organizers), are "affiliates" of the Company (as that
term is defined under Rule 144). The shares owned by such
"affiliates" will be subject to resale restrictions under the
Securities Act. Also, all of the shares issuable upon exercise of
stock options or warrants will be "restricted securities".
Securities held by "affiliates" and "restricted securities" may
be eligible for sale in the open market in accordance with the
provisions of Rule 144.
In general, under Rule 144, a person (including an affiliate of
the Company) who has beneficially owned restricted securities for
at least one year would be entitled to sell within any three
month period, in "broker's transactions" (i.e., transactions
executed by a broker or dealer on an exchange or in over-the-
counter market), the number of securities that does not exceed
the greater of 1% of the securities then outstanding or the
average weekly trading volume of the securities in the market
during the four calendar weeks preceding such sale. Non-
affiliates who have held their restricted securities for at least
two years would be entitled to sell such securities under Rule
144 without regard to the volume limitation.
Defensive Anti-Takeover Provisions
General
The provisions of Horizon's Articles of Incorporation and
Bylaws described below might be deemed to have a potential
defensive "anti-takeover" effect. We believe that the provisions
described below are prudent and will reduce our vulnerability to
takeover attempts and certain other transactions which may not be
negotiated with and approved by the Board of Directors. We
believe that it is in the best interest of Horizon and our
shareholders to encourage potential acquirers to negotiate
directly with the Board and that these provisions will encourage
such negotiations and discourage hostile takeover attempts. It is
also our view that these "anti-takeover" provisions should not
discourage persons from proposing an acquisition or other
transaction at prices reflective of the true value of Horizon
which is in the best interest of all shareholders. To be sure,
notwithstanding these provisions, the Board of Directors has a
fiduciary obligation to act in the best interest of the
shareholders and Horizon in determining corporate action.
Directorships
Our Board of Directors is divided into three classes which must
be as close to equal in size as possible. The members of each
class serve three-year terms with of each class being elected in
successive years. Our Bylaws provide that the size of the Board
of Directors, within the six to twenty member range specified in
the Articles of Incorporation, may be increased or decreased only
by a majority vote of the directors then in office. The Articles
of Incorporation provide that any vacancies occurring on the
Board of Directors, including a vacancy created by an increase in
the number of directors, shall be filled for the remainder of the
unexpired term only by a majority vote of the directors then in
office.
Removal of Directors
Horizon's Articles of Incorporation provide that no director
may be removed except for cause and then only by the vote of
holders of at least two-thirds of the outstanding voting stock
entitled to vote. However, if two-thirds of the directors then in
office approve the removal, then the vote of the holders of only
a majority of the outstanding voting stock is required to remove
a director.
Special Meetings of Shareholders
Horizon's Articles of Incorporation provide that a special
meeting of shareholders may be called by the Chairman of the
Board, by a majority vote of the directors then in office or by
the holders of at least 25% of the outstanding voting stock.
No Action By Written Consent
Horizon's Articles of Incorporation provide that the
shareholders shall not be entitled to take any action by written
consent in lieu of taking such action at an annual or special
meeting of shareholders.
Approval of Certain Business Transactions
Horizon's Articles of Incorporation provide that the vote of
holders of at least two-thirds of the outstanding voting stock is
required to approve certain mergers, consolidations or
dispositions of assets of Horizon or any of its subsidiaries.
However, if the proposed transaction is approved by the vote of
at least two-thirds of the directors then in office, then the
vote of holders of only a majority of the outstanding voting
stock is required to approve such transaction.
Amendment of the Articles of Incorporation
Horizon's Articles of Incorporation authorize the alteration,
amendment or repeal of certain Articles by the affirmative vote
of holders of at least two-thirds of the outstanding voting
stock. However, if the proposed action is approved by a vote of
at least two-thirds of the directors then in office, then the
vote of holders of only a majority of the outstanding voting
stock of the Company is required to approve such action. The
alteration, amendment or repeal of other Articles requires
approval by the holders of only a majority of the outstanding
voting stock.
Amendment of the Bylaws
Horizon's Articles of Incorporation provide that the Bylaws may
be altered, amended or repealed, or new Bylaws adopted, by the
Board of Directors or the shareholders at a duly constituted
meeting. Such action by the Board of Directors requires the vote
of two-thirds of directors then in office. Such action by the
shareholders requires the affirmative vote of holders of at least
two-thirds of the outstanding voting stock.
Preferred Stock
The preferred stock, which could be issued in one or more
series and with appropriate voting, conversion or other rights,
could discourage possible acquirers of Horizon from making a
tender offer or other attempt to gain control of Horizon.
LEGAL MATTERS
The legality of the Shares is being passed upon for the
Company by Dinur & Associates, P.C., One Lakeside Commons, Suite
760, 990 Hammond Drive, Atlanta, Georgia 30328.
EXPERTS
The financial statements of the Company as of October 31,
1998, included in this Prospectus have been examined by Francis &
Company, independent public accountants, as stated in their
opinion, appearing elsewhere herein, and have been so included in
reliance upon such opinion given upon the authority of such firm
as expert in accounting and auditing.
ADDITIONAL INFORMATION
Horizon has filed a Registration Statement under the
Securities Act of 1933, as amended, with respect to the
securities offered hereby with the SEC. As permitted by the Rules
and Regulations of the SEC, this Prospectus does not contain all
of the information set forth in the Registration Statement and
the exhibits filed therewith and reference is made to the
Registration Statement and the exhibits filed therewith for
further information concerning Horizon and the shares. Each
statement contained in this Prospectus as to the contents of a
document filed as an exhibit to the Registration Statement is
qualified by reference to the exhibit for a complete statement of
its terms and conditions. Copies of such material, as well as
periodic reports and information filed by Horizon, can be
obtained upon payment of the fees prescribed by the SEC, or may
be examined at the offices of the SEC without charge, at
* the public reference facilities in Washington, D.C. at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549;
* the Northeast Regional Office in New York at 7 World Trade
Center, Suite 1300, New York, New York 10048; and
* the Midwest Regional Office in Chicago, Illinois at 500 West
Madison Street, Suite 1400, Chicago, Illinois 66661-2511.
The SEC maintains a Web site that contains reports, proxy
and information statements and other information regarding
registrants like us that file electronically with the SEC (the
address of such site is http://www.sec.gov).
We will provide without charge to each person to whom a copy
of this Prospectus is delivered, upon the written or oral request
of such person, a copy of any or all of the documents which are
incorporated by reference herein, other than exhibits to such
documents (unless such exhibits are specifically incorporated by
reference into such documents). Requests should be directed to
Charles S. Conoley, President, at our principal executive
offices.
INDEX TO FINANCIAL STATEMENTS
Independent Auditor's Report 29
Balance Sheet as of October 31, 1998 30
Statement of Operations from Date of Inception,
May 27, 1998 to October 31, 1998 31
Statement of Changes in Stockholders' Equity
from Date of Inception, May 27, 1998,
to October 31, 1998 31
Statement of Cash Flows from Date of Inception,
May 27, 1998, to October- 31, 1998 32
Notes to Financial Statements 33
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
Horizon Bancorporation, Inc.
Bradenton, Florida
We have audited the accompanying balance sheet of Horizon
Bancorporation, Inc., Bradenton, Florida, (the "Company") a
development stage enterprise, as of October 31, 1998 and the
related statements of operations, changes in stockholders' equity
and cash flows for the period from May 27, 1998 (date of
inception) to October 31, 1998. These financial statements are
the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial
statements based an 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 Horizon Bancorporation, Inc. as of October 31, 1998, and the
results of its operations and its cash flows for the period from
May 27, 1998 (date of inception) to October 31, 1998, in
conformity with generally accepted accounting principles.
/S/ Francis & co. CPAs
Atlanta, Georgia
November 9, 1998 Francis & Company
Horizon Bancorporation, Inc.
(A Development Stage- Enterprise)
Balance Sheet
as of October 31, 1998
ASSETS
Cash $ 16,887
Organizational costs (Note 2) 39,539
Deferred registration costs (Note 2) 7,038
Other assets (Note 4) 11,349
Total Assets $ 74,813
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Total Liabilities $ -0-
Commitments and contingencies (Note 4)
Stockholders' Equity (Note 1):
Common stock, $.01 par value,
25,000,000 shares authorized,
21,600 shares issued and outstanding $ 216
Paid-in-capital 107,784
(Deficit) accumulated during
the development stage (33,187)
Total Stockholders, Equity 74,813
Total Liabilities and
Stockholders' Equity $ 74,813
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Statement of Operations
From Inception (May 27, 1998) to October 31, 1998
Revenues;
Interest income $ 975
Total revenues 975
Expenses:
Employee leasing $ 25,978
Insurance expense 2,650
Advertising & promotional 2,956
Rent expense 482
Supplies expense 605
Miscellaneous other expenses 1,491
Total expenses $ 34,162
Net (loss) $(33,187)
Basic (loss) per share(Note 2) $(1.54)
Statement of Changes in Stockholders' Equity
from Inception (May 27, 1998) to October 31, 1998
(Deficit)
Common Accumulated
Stock Additional During Total
$.01 Paid-in- the DevelopmentStockholders'
Par Value Capital Stage Equity
Issuance of
21,600 shares
of Common stock $216 $107,784 $ -0- $108,000
Net income/(loss) -0- -0- (33,187) (33,187)
Balance,
October 31, 1998 $216 $107,784 $(33,187) $ 74,813
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Statement of Cash Flows
From Inception (May 27, 1998) to October 31, 1998
Cash flows from pre-operating
activities of the development stage:
Net (loss) $ (33,187)
Adjustments to reconcile net (loss) to
net cash used by pre-operating activities
of the development stage:
(Increase) in deferred registration costs (7,038)
(Increase) in organizational costs (39,539)
(Increase) in deposits and prepaid expenses (10,932)
Net cash used by pre-operating
activities of the development stage $ (90,696)
Cash flows from investing activities
Purchase of fixed assets $ (417)
Net cash used in investing activities $ (417)
Cash flows from financing activities:
Issuance of common stock $ 108,000
Net cash provided from financing activities $ 108,000
Net increase in cash $ 16,887
Cash at inception (May 27, 1998) -0-
Cash on October 31, 1998 $ 16,887
Supplemental disclosures of cash flow information:
Cash paid for:
Interest $ -0-
Income taxes $ -0-
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
Note 1 - Summary of Organization
Manasota Group, Inc. ("Manasota") was incorporated on May 27,
1998, for the purpose of becoming a bank holding company with
respect to a proposed de novo bank, Horizon Bank (the "Bank") to
be located in Bradenton, Florida. Manasota was later renamed
Horizon Bancorporation, Inc., Bradenton, Florida (the "Company").
Accordingly, all financial transaction undertaken by Manasota are
reflected in the Company's financial statements as of October 31,
1998. An application for prior approval to charter a bank was
filed with the Division of Banking, State of Florida ("DBF"). An
application for deposit insurance was filed with the Federal
Deposit Insurance Corporation ("FDIC"). Once the application with
the DEF is approved, two additional applications, both with the
Federal Reserve Board ("FRB"), will be filed; the first for Bank
membership and the second for prior approval to become a bank
holding company. When all regulatory applications are approved
and the minimum stock sale is successfully completed, the Company
will acquire 100 percent of the voting stock of the Bank by
injecting a minimum of $5.0 million into the Bank's capital
accounts.
The Company is authorized to issue up to 25.0 million shares
of its $.01 par value per share common stock. Each share is
entitled to one vote and shareholders have no preemptive or
conversion rights. As of October 31, 1998, there were 21,600
shares of the Company's common stock issued and outstanding.
Additionally, the Company has authorized the issuance of up to
1.0 million shares of its $.01 par value per share preferred
stock. The Company's Board of Directors may, without further
action by the shareholders, direct the issuance of preferred
stock for any proper corporate purpose with preferences, voting
powers, conversion rights, qualifications, special or relative
rights and privileges which could adversely affect the voting
power or other rights of shareholders of common stock. As of
October 31, 1998, there were no shares of the Company's preferred
stock issued or outstanding,
The Company's Articles of Incorporation and Bylaws contain
certain provisions that might be deemed to have potential
defensive "anti takeover" effect. These certain provisions
include: (i) The Board of Directors is divided into three classes
with members of each class serving three-year terms with the
election of each class in successive years; (ii) membership on
the Board of Directors may range from six to twenty members and
may increase or decrease only by a majority vote of the directors
then in office; (iii) Board vacancies, including an increase in
the number of directors, can be filled for the remainder of the
unexpired term only by a majority vote of the Directors then in
office; (iv) directors may be removed if at least two-thirds of
the directors then in office approve the removal as well as by a
majority vote of the Company's voting stock; (v) special meeting
of shareholders may he called by a majority vote of the directors
then in office or by the holders of at least 25% of the
outstanding voting stock of the Company; (vi) shareholders shall
not be entitled to take any action by written consent in lieu of
taking such action at an annual or special meeting of
shareholders; (vii) certain transactions, such as mergers or
consolidations, may be approved by the vote of at least two-
thirds of the directors then in office as well as by a majority
vote of the Company's voting stock; (viii) amendments to the
Company's Articles of Incorporation can be approved by a vote of
at least two-thirds of the directors then in office as well as by
a majority vote of the Company's voting stock; (ix) amendments to
the Company's Bylaws can be approved by the Board of Directors or
by the shareholders at a duly constituted meeting, where such
action by the Board of Directors requires the vote of two-thirds
of the directors then in office or the affirmative vote of
holders of at least two-thirds of the outstanding voting stock of
the Company; and (x) the issuance of preferred stock, described
in the previous paragraph, which may also be deemed to have an
"anti-takeover" effect.
The Company intends to file a Registration Statement on Form
SB-1 with the Securities and Exchange Commission offering for
sale a minimum of 1,050,000 and a maximum of 1,500,000 shares of
its $.01 value common stock (the "Offering"). The sales price for
each share of common stock is $5. All subscription proceeds will
be held by an Escrow Agent pending acceptance of subscriptions
and completion of the Offering. If the sale of
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
the minimum (1,050,000) shares of common stock is not
accomplished by the expiration date, as extended, all
subscriptions will be canceled and all proceeds returned, without
interest, to the subscribers. If the sale of the minimum
(1,050,000) shares of common stock is accomplished and all
regulatory approvals obtained, the Company will capitalize the
Bank with at least $5.0 million immediately prior to commencement
of banking operations.
Certain organizers of the Company will receive a warrant for
each share of common stock purchased by that organizer. Each
warrant entitles its holder to purchase one share of the
Company's common stock for $5.00 for a period of ten years from
the date the Bank opens for business. The warrants will vest over
a period of three years, at one-third per year and beginning on
the first anniversary from commencement of banking operations. in
addition to the passage of time, the vesting of warrants requires
each organizer to attend a minimum of 75% of the Board of
Directors meetings for each year during the vesting period. All
warrants, however, will become vested upon the change of control
of the Bank or the sale by the Bank of all or substantially all
of its assets. All warrants are subject to approval by the
banking regulatory agencies.
The Company is a development stage enterprise as defined by
the Financial Accounting Standards Board Statement No. 7,
"Accounting and Reporting by Development Stage Enterprises," as
it devotes substantially all its efforts to establishing a new
business, its planned principal operations have not commenced and
there has been no significant revenue from the planned principal
operations.
Note 2 - Summary of Significant Accounting Policies
Basis of Accounting. The accounting and reporting policies
of the Company conform to generally accepted accounting
principles and to general practices in the banking industry. The
Company uses the accrual basis of accounting by recognizing
revenues when they are earned and expenses in the period
incurred, without regard to the time of receipt or payment of
cash. The Company has adopted a fiscal year that ends on
December 31, effective for the period ending December 31, 1998.
Organizational Costs. Organizational costs are costs that
have been incurred in the expectation that they will generate
future revenues or otherwise benefit periods after the Company
reaches the operating stage. Organizational costs generally
include incorporation, legal and accounting fees incurred in
connection with establishing the Company. Salary and travel
expenses, overhead and similar operating costs are not considered
to be organizational costs and are thus expensed in the period
incurred. Organizational costs are capitalized when incurred,
and are amortized over a sixty-month period beginning immediately
after the Company commences its principal operations.
Deferred Registration Costs. Deferred registration costs are
deferred and incremental costs incurred by the Company in
connection with the issuance of its own stock. Deferred
registration costs do not include any allocation of salaries,
overhead or similar costs. In a successful offering, deferred
registration costs are deducted from the Company's paid-in-
capital account. Registration costs associated with an
unsuccessful offering are charged to operations in the period
during which the offering is deemed unsuccessful.
Income Taxes. The Company will be subject to taxation
whenever taxable income is generated. As of October 31, 1998, no
income taxes had been accrued since no taxable income had been
generated.
Basic (Loss) Per Share. Basic loss per share of $(1.54) is
based on 21,600 shares outstanding from inception through October
31, 1998. Note that the above result is not indicative of future
performance since planned principal operations have not
commenced.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
Statement of Cash Flows. The statement of cash flows was
prepared using the indirect method. Under this method, net loss
was reconciled to net cash flows from pre-operating activities by
adjusting for the effects of' current assets and short term
liabilities.
Note 3 - Commitments and Contingencies
In connection with the Company's formation and the
organization of its subsidiary Bank, the Company has entered into
three separate agreements with a bank consulting firm, a law firm
and an accounting firm to assist it ins (i) preparing and filing
all organizational and incorporation papers, (ii) preparing and
filing applications with the bank regulatory authorities
concerning the formation of a bank holding company and the
organization of a State chartered bank; (iii) preparing a
Registration Statement on Form SB-1, including the financial
audit, and filling same with the Securities and Exchange
Commission; and (iv) drafting of employment agreements, stock
option plans and other matters relating to compensation. The
aggregate cost of the above services is estimated to approximate
$118,000 and may vary depending upon the degree of complexity and
time spent on the above projects
On June 8, 1993, the Company entered into an agreement (the
"Consulting Agreement") with one of its organizers who will serve
as the Company's and the Bank's President and Chief Executive
Officer (the "CEO"). The Consulting Agreement, which commenced
June 15, 1998, is for a term of the earlier of (i) twelve months
or (ii) the date the Bank is no longer in the organization period
and has opened for business. Under the terms of the Consulting
Agreement, the CEO, for his services and efforts relating to
organizational matters of the Bank and the Company, is to be paid
$5,000 monthly until the Bank application is filed with the
regulators, $6,000 monthly until the minimum number of shares of
stock is sold in the Offering, and $8,000 monthly until the Bank
is opened. The Consulting Agreement provides for other customary
benefits, such as health, life and disability insurance. Also,
upon the Bank's opening for business, the CEO will receive a
$16,000 bonus. The CEO is currently being paid through an
employee leasing arrangement funded by the Company.
On October 28, 1998, the Company and the above CEO entered
into an employment agreement (the "Employment Agreement") which
will become effective when the Consulting Agreement terminates.
However, if the Consulting Agreement is extended, then the
Employment Agreement is effective at the earlier of commencement
of banking operations or December 31, 1999. The Employment
Agreement provides for an annual salary of $96,000 plus an annual
percentage increase identical to the increase in the Consumer
Price Index. In addition, the CEO may receive a performance bonus
ranging from 10% to 50% of his annual base salary if certain
performance objectives are met. The CEO would also be entitled
to other customary benefits such as annual vacation, medical and
life insurance, etc. The Employment Agreement also provides for
the granting of stock options to purchase shares equal to 3% of
the total shares sold in the Offering. The options would vest
ratably over a five-year period, with an exercise price of $5.00
and an expiration date of ten years from the date of issue.
A consultant who is assisting the Company and the proposed
Bank in obtaining all regulatory approvals required to operate
both a bank holding company and a bank will receive 4,000 stock
options upon receipt of approval from the DBF to operate a bank.
These Options allow their holder to purchase 4,000 shares of the
Company's common stock at an exercise price of $5.00 per share.
These options would vest immediately and would he exercisable
within ten years from the date of grant.
The organizers as a group capitalized the Company by
acquiring 21,600 shares of the Company's common stock for an
aggregate amount of $108,000. These shares will be redeemed and
$108,000 will be returned to the organizers once the minimum
offering is satisfied.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
On September 30, 1998, the Company entered into an agreement
to purchase a 1.05 acre parcel for $407,500. The land will be
used as the site for the proposed Bank's main office. An earnest
money deposit in the amount of $10,000 has been deposited with an
escrow agent and is reflected under "other assets" in the
Company's Balance sheet dated October 31, 1998. An additional
$40,000 is due upon local government approval of the site plan
and usage. Assuming all contingencies, such as regulatory
approvals to operate both a holding company and a bank, are
satisfied, the final transaction to purchase the site should be
completed no later than March 24, 1999. The proposed Bank intends
to build a one-story facility with approximately 5,000 square
feet (expandable to 7,000 square feet) of finished space. Total
construction costs are estimated at $665,000, with an additional
estimate of $258,000 for furniture and equipment.
On October 8, 1998, the Company entered into a one-year
lease arrangement, with a minimum of nine months, covering office
space from which it currently operates. The monthly cost of the
lease is $450.
Please refer to Note 1 concerning warrants to organizers.
Note 4 - Other Assets
Other assets at October 31, 1998, consisted of the
following:
a. Escrow deposit for land purchase $10,000
b. Prepaid rent and rent deposit 932
c. Fixed assets, net 417
Total other assets $11,349
Note 5 - Related Party Transactions
Please refer to Note 1 for a discussion concerning the
organizers' warrants.
Please refer to Note 3 for discussions concerning:
(i) The CEO's Consulting Agreement and Employment
Agreement, and;
(ii) The redemption of the organizers' common stock.
Note 6 - Subsequent Events
In order to fund expenses incurred during the organizational
stage, the Company obtained a Commitment Letter (the
"Commitment") from an unrelated financial institution and
accepted it on November 5, 1998. The Commitment is in the amount
of $300,000 and in the form of a one-year non-revolving line of
credit. The line of credit carries an interest rate of prime
minus l%, with interest payable monthly. The collateral includes
the Company's furniture, equipment and leasehold improvements, as
well as the personal guarantees of certain organizers.
TABLE OF CONTENTS
Prospectus Summary 2
Risk Factors 4
The Offering 8
Use of Proceeds 9
Dividend Policy 11
Business 11
Supervision and Regulation 15
Management 18
Certain Transactions 21
Principal Shareholders 23
Description of Capital Stock 24
Legal Matters 26
Experts 26
Additional Information 26
Index to Financial Statements 28
----------
Until March 15, 1999, all dealers that buy, sell or trade
these securities, whether or not participating in this
distribution, may be required to deliver a prospectus. This is in
addition to the dealer's obligation to deliver a prospectus when
acting as underwriters and with respect to their unsold
allotments or subscriptions.
(end of back cover)
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act
(the "Act")provides that a corporation shall have power to
indemnify any person who was or is a party to any proceeding
(other than an action by, or in the right of, the corporation),
by reason of the fact that he or she is or was a director,
officer, or agent of the corporation against liability incurred
in connection with such proceeding, including any appeal thereof,
if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful.
In addition, under Section 607.0850 of the Act, a
corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, or agent of
the corporation against expenses and amounts actually and
reasonably incurred in connection with the defense or settlement
of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good
faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation, except
that no indemnification shall be made in respect of any claim,
issue, or matter as to which such person shall have been adjudged
to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall
deem proper.
Any indemnification under Section 607.0850 of the Act,
unless pursuant to a determination by a court, shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, or
agent is proper in the circumstances because he or she has met
the applicable standard of conduct. Such determination shall be
made: (a) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such
proceeding; (b) if such quorum is not obtainable or, even if
obtainable, by majority vote of a committee duly designated by
the board of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding; (c) by independent legal
counsel.
Article 9 of the Registrant's By Laws contains provisions
for the indemnification of officers and directors and advancement
of expenses to the fullest extent authorized by the Florida
Business Corporation Act. Article 6 of the Registrant's Articles
of Incorporation contains a provision eliminating or limiting
personal liability of a director of the Registrant to the fullest
extent authorized by the Florida Business Corporation Act.
The Registrant may seek to purchase and maintain directors
and officers liability insurance which insures against
liabilities that directors and officers of the Registrant may
incur in such capacities.
ITEM 2. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration fees 2,085
Blue sky fees and expenses 12,000
Escrow Agent Fee 1,500
Printing Expenses 4,000
Legal Fees and Expenses 60,000
Accounting Fees 5,000
Miscellaneous Expenses 10,000
TOTAL $94,585
ITEM 3. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes as follows:
(1) The Registrant will file, during any period in which it
offers or sells securities, a post-effective amendment
to this Registration Statement to:
(i) include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended
(the "Securities Act");
(ii) reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information in the
Registration Statement; and
(iii) include any additional or changed material
information in the plan of distribution.
(2) The Registrant will, for determining liability under
the Securities Act, treat each post-effective amendment
as a new registration statement of the securities
offered, and the Offering of the securities at that
time to be the initial bona fide Offering.
(3) The Registrant will file a post-effective amendment to
remove from registration any of the securities that
remain unsold at the end of the Offering.
(4) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities
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 Securities Act and will be governed by
the final adjudication of such issue.
ITEM 4. UNREGISTERED SECURITIES ISSUED OR SOLD WITHIN ONE YEAR.
Not applicable
ITEM 5. INDEX TO EXHIBITS
The following exhibits are filed as part of this
Registration Statement:
Number Description of Exhibit
2.1 Amended and Restated Articles of Incorporation of the
Registrant, dated October 7, 1998.
2.2 Amended and Restated By-Laws of the Registrant, dated
October 7, 1998.
4 Form of Subscription Agreement (included as Appendix A
to the Prospectus)
6.1 Organizer Contribution Agreement among the Organizers,
dated as of May 20, 1998.
6.2 Consulting Agreement between the Registrant and Charles
S. Conoley, dated June 8, 1998.
6.3 Agreement for Sale and Purchase of Property, dated
September 30, 1998, with respect to the banking
facility site.
6.4 Indenture of Lease, dated October 8, 1998, with respect
to the temporary office of the Registrant.
6.5 Employment Agreement between the Registrant and Charles
S. Conoley, dated October 28, 1998.
6.6 Redemption Agreement among the Registrant and the
Organizers, dated as of October 28, 1998.
6.7 Letter from SunTrust Bank Central Florida, N.A., dated
November 2, 1998, with respect to the line of credit to
the Registrant.
9 Escrow Agreement between SunTrust Bank, Central
Florida, N. A. and the Registrant, dated October 30,
1998.
10(a)(1) Consent of Francis & Company, CPA's.
10(a)(2) Consent of Dinur & Associates, P.C., (included in
Exhibit 11).
11 Opinion of Dinur & Associates, P. C. regarding the
legality of the securities to be offered.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements of filing a Form SB-
1 and has authorized this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, in the
City of Bradenton, State of Florida, on December 15, 1998.
HORIZON BANCORPORATION, INC.
By: ___________________________/S/________________________
Charles S. Conoley, President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the date
indicated:
Signature Title Date
________________/S/____________President and Chief 12/15/98
Charles S. Conoley Executive, Financial and
Accounting Officer/Director
_______________/S/___________Director, Chairman of 12/15/98
Clarence R. Urban the Board of Directors
_______________/S/_____________ Director 12/15/98
Thomas C. Bennett, Jr.
______________/S/______________ Director 12/15/98
Michael Shannon Glasgow
_____________/S/_______________ Director 12/15/98
C. Donald Miller, Jr.
_____________/S/_______________ Director 12/15/98
Stephen C. Mullen
_____________/S/_______________ Director 12/15/98
David K. Scherer
_____________/S/_______________ Director 12/15/98
Bruce E. Shackelford
_____________/S/_______________ Director 12/15/98
MaryAnn P. Turner
- -----------
EXHIBIT 2.1
- -----------
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
MANASOTA GROUP, INC.
The undersigned corporation, MANASOTA GROUP, INC. (the
"Corporation"), for the purposes of amending and restating its
Articles of Incorporation, and pursuant to the provisions of the
Florida Business Corporation Act (the "Act"), executes the
following Amended and Restated Articles of Incorporation:
ARTICLE I - NAME.
- -----------------
The Name of the Corporation shall be HORIZON BANCORPORATION,
INC., and its principal place of business shall be 910-53rd
Avenue E, Bradenton, Florida 34203.
ARTICLE II - NATURE OF BUSINESS.
- --------------------------------
The Corporation may engage in any activity or business
permitted under the laws of the United States and of the State of
Florida.
ARTICLE III - CAPITAL STOCK.
- ----------------------------
A. AUTHORIZED SHARES. The total number of shares of all
classes of capital stock which the Corporation shall have
authority to issue is 26,000,000, consisting of 25,000,000 shares
of common stock, par value $0.01 per share (the "Common Stock")
and 1,000,000 shares of preferred stock, par value $0.01 per
share (the "Preferred Stock"). The shares may be issued from
time to time as authorized by the Board of Directors of the
Corporation without further approval of the shareholders except
as otherwise provided herein or to the extent that such approval
is required by statute, rule or regulation.
B. COMMON STOCK. Except as otherwise provided by statute or
Preferred Stock Designations (as defined below), the holders of
the common stock shall exclusively possess all voting power. Each
holder of shares of common stock shall be entitled to one vote
for each share held of record by such holder as to each matter
submitted to shareholders for approval. There shall be no
cumulative voting rights in the election of directors of the
Corporation.
C. PREFERRED STOCK. The shares of Preferred Stock may be
issued from time to time in one or more series as may be
established by the Board of Directors of the Corporation. The
Board of Directors is hereby expressly authorized to fix and
determine by resolution(s) the number of shares of each series of
Preferred Stock and the designation thereof, any voting and other
powers, preferences and relative participating, optional or
special rights, including the number of votes, if any, per share
and such qualifications, limitations or restrictions on any such
powers, preferences and rights as shall be stated in the
resolution(s) providing for the issue of the series (a "Preferred
Stock Designation") and as may be permitted by the Act. The
number of authorized shares of Preferred Stock may be increased
or decreased (but not below the number of shares of such class or
series then outstanding) by the affirmative vote of holders of a
majority of the voting power of the then outstanding shares of
capital stock, voting together as a single class, without a
separate vote of the holders of the Preferred Stock, or any
series thereof, unless the vote of such holders if required
pursuant to any Preferred Stock Designation.
ARTICLE IV - TERM AND COMMENCEMENT OF EXISTENCE.
- ------------------------------------------------
This Corporation is to exist perpetually. The date of
commencement of corporate existence is date of filing of Articles
of Incorporation.
ARTICLE V - DIRECTORS.
- ----------------------
A. The Corporation shall be under the direction of the
Board of Directors. The Board of Directors shall consist of not
less than six (6) nor more than twenty (20) directors. The
number of directors within this range shall be fixed from time to
time by the Board of Directors pursuant to a resolution adopted
by a majority of the directors then in office. The Board of
Directors shall be divided into three classes: Class I, Class II,
and Class III, with each class to be as nearly equal in number as
possible. Each director shall serve for a term ending on the
date of the third annual meeting of shareholders of the
Corporation (the "Annual Meeting") following the Annual Meeting
at which such director was elected; provided, however, that the
directors designated herein as members of Class I shall serve for
a term ending on the date of the first Annual Meeting following
the date on which such directors are so designated, the directors
designated herein as members of Class II shall serve for a term
ending on the date of the second Annual Meeting following the
date on which said directors were so designated, and the
directors designated herein as members of Class III shall serve
for a term ending on the date of the third Annual Meeting
following the date on which such directors were so designated.
Notwithstanding the foregoing, each director shall serve until
his successor is elected and qualified or until his death,
resignation or removal.
B. The initial Board of Directors of the Corporation shall
consist of eleven (11) members, whose names, addresses and
initial class are set forth below:
Name Address
---- -------
Class I (Term Expiring 1999)
Charles S. Conoley 41-68th Court, N. W.
Bradenton, FL 34209
Michael Shannon Glasgow 719-46th St. Court, E.
Palmetto, FL 34221
Bruce R. Woodruff 6939 Riversedge St., Cir.
Bradenton, FL 34202
Class II (Term Expiring 2000)
Thomas C. Bennett, Jr. 6144-9th Avenue Cir., N. E.
Bradenton, FL 34202
C. Donald Miller 216-21st St., W.
Bradenton, FL 34216
Stephen C. Mullen 820 Idlewild Way
Sarasota, FL 34242
Bruce E. Shackleford 5310 Jim Davis Rd.
Parrish, FL 34219
Class III (Term Expiring 2001)
Warren E. Gagner 1808-75th St., N.W.
Bradenton, FL 34209
David K. Scherer 5008 Mangrove Pt., Rd.
Bradenton,FL 34210
MaryAnn P. Turner 1822-97th St., N.W.
Bradenton, FL 34209
Clarence R. Urban 3319-59th Avenue Dr., E.
Bradenton, FL 34203
C. Any director may be removed from office at any time, but
only for cause, by the affirmative vote of holders of two-thirds
of the then outstanding shares of capital stock of the
Corporation entitled to be cast, voting together as a single
class, at a meeting of shareholders called for that purpose,
unless the removal has been approved by a resolution adopted by
at least two-thirds of the directors then in office, in which
event the removal shall be approved by vote of the holders of a
majority of the voting power of the then outstanding shares of
capital stock of the Corporation entitled to be cast, voting
together as a single class, at a meeting of the shareholders
called for that purpose. For purposes of this paragraph, "cause"
shall mean any act or omission for which a director may be
personally liable to the Corporation or its shareholders pursuant
to Article VI hereof, as well as any other act or omission which
relates to personal dishonesty, incompetence or intentional
failure to perform stated duties.
D. Any vacancy occurring in the Board of Directors,
including any vacancy created by reason of an increase in the
number of directorships, may be filled by the vote of a majority
of directors then in office. Any director so chosen shall hold
office until such director's successor shall have been elected
and qualified. Any director chosen by the Board of Directors to
fill a vacancy created, other than by reason of an increase in
the number of directorships, shall serve for the unexpired term
of the director whose vacancy is being filled. Any director
chosen by the Board of Directors to fill a vacancy created by
reason of an increase in the number of directorships shall serve
for a term to expire at the next election of directors.
ARTICLE VI - DIRECTOR'S LIABILITY.
- ----------------------------------
A director of the Corporation shall not be personally liable
to the Corporation or its shareholders for monetary damages for
breach of his duty of care or other duty as a director by reason
of any act or omission, except for liability (i) for any
appropriation, in violation of his duties, of any business
opportunity of the Corporation; (ii) for acts or omissions which
involve intentional misconduct or a knowing violation of law;
(iii) for the types of liability set forth in Section 607.0831 of
the Act; or (iv) for any transaction from which the director
derives an improper personal benefit. If the Act is amended to
authorize corporate action further limiting the personal
liability of directors, then the liability of a director of the
Corporation shall be limited to the fullest extent permitted by
the Act, as so amended. Any repeal or modification of this
Article by the shareholders of the Corporation shall not
adversely affect any right or protection of a director of
Corporation existing at the time of such repeal or modification.
ARTICLE VII - INCORPORATION, REGISTERED OFFICE AND REGISTERED
AGENT.
- --------------------------------------------------
The name of the registered agent and the street address of
the registered office of the corporation, and the name and
address of each incorporator of this corporation is as follows:
Registered Agent: Registered Office:
- ----------------- ------------------
CHARLES S. CONOLEY 410-68th Court NW
Bradenton, FL 34209
Incorporator:
- -------------
CHARLES S. CONOLEY 410-68th Court NW
Bradenton, FL 34209
ARTICLE VIII - SHAREHOLDER MEETINGS.
- ------------------------------------
A. Special meetings of shareholders may be called at any
time by the Chairman of the Board or the President, by a majority
of the directors then in office or by the written request of the
holders of at least 25% of the then outstanding shares of capital
stock of the Corporation entitled to be cast, voting together as
a single class.
B. The shareholders of the Corporation shall not be
entitled to take any action by written consent in lieu of taking
such action at an annual or special meeting of shareholders
called for that purpose.
C. Advance notice of shareholder nominations for 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.
ARTICLE IX - CERTAIN BUSINESS TRANSACTIONS.
- -------------------------------------------
A. The affirmative vote of holders of at least two-thirds
of the outstanding shares of capital stock entitled to be cast at
a meeting called to vote on any transaction submitted to the
shareholders pursuant to this Article, voting together as a
single class, shall be required for the approval or authorization
of: (i) any merger or consolidation of the Corporation or any of
its subsidiaries with or into any other corporation, partnership,
person or other entity; or (ii) any sale, lease, exchange,
transfer or disposition of all or substantially all of the assets
of the Corporation or any of its subsidiaries to or with any
other corporation, partnership, person or other entity; or (iii)
adoption of any plan or proposal for the liquidation or
dissolution of the Corporation; provided, however, that such two-
thirds voting requirement shall not be applicable if the Board of
Directors of the Corporation shall have approved any such action
or transaction described in clauses (i), (ii) or (iii) by
resolution adopted by at least two-thirds of the directors then
in office, in which case the affirmative vote of holders of a
majority of the outstanding shares of capital stock entitled to
be cast, voting together as a single class, shall be required to
approve such action or transaction.
B. The fact that any action or transaction complies with
the provisions of this Article shall not be construed to impose
any fiduciary duty, obligation or responsibility on the Board of
Directors or any member thereof to approve such action or
transaction, recommendation, adoption or approval to the
shareholders of the Corporation, nor shall any such compliance
limit, prohibit or otherwise restrict in any manner the Board of
Directors, or any member thereof, with respect to evaluations of,
or actions or responses taken with respect to, such action or
transaction.
ARTICLE X - BYLAWS.
- -------------------
In furtherance and not in limitation of the power conferred
by statute, the Board of Directors is expressly authorized to
make, alter, amend and repeal the Bylaws of the Corporation by
vote of at least two-thirds of the directors then in office,
subject to the powers of the holders of the capital stock of the
Corporation to alter, amend or repeal the Bylaws; provided,
however, that, with respect to the powers of the holders of
capital stock to alter, amend and repeal the Bylaws of the
Corporation, notwithstanding any other provisions of these
Articles of Incorporation or any provision of law which might
otherwise permit a lesser vote or no vote, but in addition to any
affirmative vote of holders of any particular class or series of
the capital stock of the Corporation required by law, or these
Articles of Incorporation, the affirmative vote of holders of at
least two-thirds of the voting power of the then outstanding
shares of capital stock entitled to be cast, voting together as a
single class, shall be required to alter, amend or repeal any
provision of Bylaws.
ARTICLE XI - AMENDMENT OF ARTICLES OF INCORPORATION.
- ----------------------------------------------------
The Corporation reserves the right to amend, alter or repeal
any provision contained in these Articles of Incorporation in the
manner now or hereafter prescribed by statute, and all rights
conferred on shareholders herein are granted subject to this
reservation. Notwithstanding the preceding sentence, the
provisions set forth in this Article and Articles 3, 5, 6, 8, 9
and 10 hereof may not be altered, amended or repealed in any
respect, and no other provision(s) may be adopted which would
impair in any respect the operation or effect of any such
provisions, except by the affirmative vote of holders of at least
twothirds of the voting power of the then outstanding shares of
capital stock, voting together as a single class; provided,
however, that such two-thirds voting requirement shall not be
applicable if the Board of Directors of the Corporation shall
approve such action by resolution adopted by at least two-thirds
of the directors then in office, in which case the affirmative
vote of holders of a majority of the then outstanding shares of
capital stock entitled to be cast at the meeting of shareholders
called for that purpose, voting together as a single class, shall
be required to approve such action.
IN WITNESS WHEREOF, the undersigned has executed these Articles
of Incorporation.
/S/
----------------------------
Charles S. Conoley, President
CERTIFICATE OF AMENDMENT
AND RESTATEMENT OF THE ARTICLES
OF INCORPORATION
OF MANASOTA GROUP, INC.
The undersigned corporation, MANASOTA GROUP, INC. (the
"Corporation"), pursuant to Section 607.1007(4) of the Florida
Business Corporation Act (the "Act"), executes and publishes the
following certificate in conjunction with its Amended and
Restated Articles of Incorporation:
1. The Amended and Restated Articles of Incorporation
does contain an amendment requiring shareholder approval.
2. The Amended and Restated Articles of Incorporation were
approved by the shareholders through unanimous written consent
pursuant to Section 607.0704 of the Act.
IN WITNESS WHEREOF, the undersigned has executed this
Certificate of Amendment and Restatement of the Articles of
Incorporation on behalf of the Corporation.
/S/
----------------------------
Charles S. Conoley, President
CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR THE
SERVICE OF PROCESS WITHIN THIS STATE, NAMING AGENT UPON WHOM
PROCESS MAY BE SERVED.
- ----------------------------------------------------
Pursuant to Chapter 48.091, Florida Statutes, the following
is submitted, in compliance therewith:
First, that MANASOTA GROUP, INC., organized under the laws
of the State of Florida, with its principal office, as indicated
in the Amended and Restated Articles of Incorporation, at the
City of Bradenton County of Manatee, State of Florida, has named
Charles S. Conoley, 410-68th Court, N. W., Bradenton, County of
Manatee, State of Florida, as its agent to accept service of
process within the state.
ACKNOWLEDGEMENT:
Having been named to accept service of process for the above
stated corporation, at place designated in this Certificate, I
hereby accept to act in this capacity, and agree to comply with
the provision of said Act relative to keeping open said office.
/S/
----------------------------
Charles S. Conoley, President
- -----------
EXHIBIT 2.2
- -----------
AMENDED AND RESTATED
BYLAWS OF HORIZON BANCORPORATION
ARTICLE ONE
OFFICES
SECTION 1.1 - REGISTERED OFFICE AND AGENT. The Corporation
will maintain a registered office and will have a registered
agent whose business office is identical with such registered
office. The registered office need not be identical with the
principal business office of the Corporation.
SECTION 1.2 - OTHER OFFICES. The Corporation may have
offices at such other place(s), within or without the State of
Florida, or elsewhere, as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE TWO
SHAREHOLDERS' MEETINGS
SECTION 2.1 - DATE, TIME AND PLACE OF MEETINGS. All
meetings of the shareholders shall be held on such date, time and
place, within or without the State of Florida, as the Board of
Directors may set forth from time to time, or if no place is so
specified, at the principal executive office of the Corporation.
SECTION 2.2 - ANNUAL MEETINGS. The annual meeting of
shareholders shall be held on a date and at a time following the
end of the Corporation's fiscal year as may be determined by the
Board of Directors, for the purpose of electing directors and
transacting any and all business that may properly come before
the meeting.
SECTION 2.3 - SPECIAL MEETINGS. Special meetings of the
shareholders for any purpose(s) may be called at any time by the
Chairman of the Board or the President or by a majority of the
directors then in office or by written request of the holders of
at least 25% of the then outstanding shares of capital stock of
the Corporation entitled to be cast, voting together as a single
class. Business transacted at any special meeting of
shareholders shall be limited to the purpose(s) stated in the
notice thereof.
SECTION 2.4 - NOTICE OF MEETINGS. Written notice of each
shareholders' meeting stating the date, time and place of the
meeting will be delivered either personally or by mail to each
shareholder of record entitled to vote at such meeting, not less
than 10 days nor more than 60 days before the date of the
meeting. In the case of an annual meeting, the notice of the
meeting need not state the purpose(s) for which the meeting is
called. In the case of a special meeting, the notice of meeting
shall state the purpose(s) for which the meeting is called. If
mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with first class postage
affixed thereon, prepaid, addressed to each shareholder at his
address as it appears on the Corporation's record of
shareholders. Attendance of a shareholder at a meeting of the
shareholders shall constitute a waiver of notice of such meeting
and of all objections to the place or time of such meeting, or
the manner in which it has been called or convened, except when a
shareholder attends a meeting solely for the purpose of stating,
at the beginning of the meeting, any such objection to the
transaction of any business. Notice need not be given to any
shareholder who signs a waiver of notice, in person or by proxy,
either before or after the meeting. If the language of a
proposed resolution or plan requiring the approval of the
shareholders is included in a written notice of a meeting of the
shareholders, the shareholders' meeting considering the
resolution or plan may adopt it with such clarifying or other
amendments as do not enlarge its original purpose without further
notice to shareholders not present in person or by proxy.
SECTION 2.5 - QUORUM. The presence, in person or by proxy,
of the holders of a majority of shares then issued and
outstanding and entitled to vote, shall constitute a quorum for
the transaction of business at any meeting of shareholders,
except as otherwise required by statute or the Articles of
Incorporation. Where a quorum is once present at a meeting, it
shall not be broken by the subsequent withdrawal of any of those
present.
SECTION 2.6 - ADJOURNMENT. In the absence of a quorum or
for any other reason, the holders of the majority of the shares
then issued and outstanding and entitled to vote at any meeting
of the shareholders, present in person or represented by proxy,
or the Chairman of the Board, or the President, shall have the
power to adjourn the meeting from time to time, without notice
other than announcement at the meeting of the date, time and
place of the adjourned meeting. At such adjourned meeting in
which a quorum shall be present or represented, any business may
be transacted which might have been transacted at the meeting as
originally notified. If after the adjournment a new record date
is picked for the adjourned meeting, notice of the adjourned
meeting shall be given to each shareholder of record entitled to
vote at the adjourned meeting.
SECTION 2.7 - VOTE REQUIRED. When a quorum is present at
any meeting, the affirmative vote of the holders of a majority of
the shares of stock of the Corporation entitled to vote and
present in person or represented by proxy, voting together as a
single class, shall decide any questions brought before such
meeting, except as otherwise required by statute or the Articles
of Incorporation.
SECTION 2.8 - VOTING OF SHARES. Except as otherwise
required by statue or the Articles of Incorporation, each
shareholder shall be entitled to one vote, in person or
represented by proxy, for each share of stock having voting power
held by such shareholder at every meeting of the shareholders.
Shareholders may vote in person or by written proxy; provided,
however, no proxy shall be voted or acted on after 11 months from
its date, unless the proxy provides for a longer period. Any
proxy to be voted at a meeting of shareholders shall be filed
with the Secretary of the Corporation before or at the time of
the meeting. Voting on matters brought before a shareholders'
meeting may, at the discretion of the person presiding at the
meeting, be by voice vote or show of hands, unless any qualified
voter, prior to the voting on such matter, demands vote by
ballot, in which event the voting shall be by ballot.
SECTION 2.9 - NO ACTION BY WRITTEN CONSENT. Shareholders
shall not be entitled to take any action by written consent in
lieu of taking such action at an annual or special meeting of
shareholders.
SECTION 2.10 - SHAREHOLDERS' LIST. A complete list of
shareholders entitled to vote at any meeting of shareholders,
arranged in alphabetical order showing the address of each such
shareholder as it appears in the records of the Corporation and
the number of shares registered in the name of such shareholder,
shall be prepared by the Secretary of the Corporation at least 10
days prior to every meeting of shareholders. Such list shall be
open to the examination of any shareholder, for any purpose
relating to the meeting, during ordinary business hours for a
period of at least 10 days prior to the meeting, either at a
place within the city where the meeting is to be held or, if not
so specified, the place where the meeting is to be held, and a
duplicate list shall be similarly open to examination at the
principal executive office of the Corporation. The list shall
also be produced and kept at the time and place of the meeting
during the duration thereof, and may be inspected by any
shareholder who is present.
SECTION 2.11 - INSPECTORS OF ELECTION. In advance of any
meeting of shareholders, the Board of Directors may appoint any
persons, other than nominees for office, as inspectors of
election to act at such meeting or any adjournment thereof. The
number of inspectors shall be either one or three. If such
persons are not so appointed or fail or refuse to act, the
presiding officer of such meeting shall make such appointment(s)
at the meeting. The number of inspectors shall be either one or
three. If there are three inspectors, the decision, action or
certificate of a majority of such inspectors shall be effective
and shall represent the decision, action or certificate of all.
No such inspector need be a shareholder of the Corporation.
Unless otherwise required by statute or the Articles of
Incorporation, the duties of such inspectors shall include:
determining the number of shares outstanding and the voting power
of each share, the number of shares represented at the meeting,
the existence of a quorum, the authenticity, validity and effect
of proxies; receiving votes or ballots; hearing and determining
all challenges and questions in any way arising in connection
with the right to vote; counting and tabulating all ballots or
votes and determining the results thereof; and such acts as may
be proper to conduct the election or vote with fairness to all
shareholders. Upon request, the inspectors shall make a report
in writing to the secretary of the meeting concerning any
challenge, question or other matter as may have been determined
by them and shall execute and deliver to such secretary a
certificate of any fact found by them.
SECTION 2.12 - CONDUCT OF MEETINGS.
(a) All annual and special meetings or shareholders shall
be conducted in accordance with such rules and procedures as the
Board of Directors may determine subject to the requirements of
statute and, as to matters not governed by such rules and
procedures, as the presiding officer of such meeting shall
determine. The presiding officer of any annual or special
meeting of shareholders shall be the President or, in his
absence, such person as designated by the Board of Directors.
The Secretary, or in his absence, a person designated by the
presiding officer, shall act as secretary of the
meeting.
(b) At any annual meeting of shareholders, only such
business shall be conducted as shall have been brought before the
meeting (i) as specified in the notice of the meeting given by or
at the direction of the Board of Directors, (ii) otherwise
properly brought before the meeting by or at the direction of the
Board of Directors, or (iii) otherwise properly brought before
the meeting by any shareholder of the Corporation who is entitled
to vote with respect thereto and who complies with the notice
procedures set forth in this subparagraph (b).
For business to be properly brought before an annual meeting
by a shareholder, the shareholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice must be delivered or mailed to
and received at the principal executive office of the Corporation
not less than 30 days prior to the date of the annual meeting;
provided, however, that in the event that less than 40 days'
notice or prior public disclosure of the date of the meeting is
given or made to shareholders, notice by a shareholder to be
timely must be received not later than the close of business on
the 10th day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure was
made. A shareholder's notice to the Secretary shall set forth as
to each matter such shareholder proposes to bring before the
annual meeting (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for
conducting such business at the annual meeting (ii) the name and
address, as they appear on the books of the Corporation, of the
shareholder proposing such business, (iii) the class and number
of shares of the Corporation's capital stock that are
beneficially owned by such shareholder and (iv) any material
interest of such shareholder in such business. Notwithstanding
anything in these Bylaws to the contrary, no business shall be
brought before or conducted at an annual meeting except in
accordance with the provisions of this subparagraph (b). The
presiding officer at the annual meeting shall, if the facts so
warrant, determine and declare to the meeting that a matter of
business was not properly brought before the meeting in
accordance with the provisions of this subparagraph (b) and, if
he should so determine, he shall so declare to the meeting and
any such business so determined to be not properly brought before
the meeting shall not be transacted.
(c) At any special meeting of the shareholders, only such
business shall be conducted as shall have been stated in the
notice therefor or brought before the meeting by or at the
direction of the Board of Directors.
SECTION 2.13 - VOTING OF SHARES BY CERTAIN HOLDERS.
(a) If shares or other securities having voting power stand
of record in the names of two or more persons, whether
fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety or otherwise, or if two or more
persons have the same fiduciary relationship respecting the same
shares, unless the Secretary of the Corporation is given written
notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship
wherein it is so provided, their acts with respect to voting
shall have the following effect: (1) if only one votes, his act
binds all; (2) if more than one vote, the act of the majority so
voting binds all; (3) if more than one vote, but the vote is
evenly split on any particular matter, each faction may vote the
securities in question proportionally, or any person voting the
shares, or a beneficiary, if any, may apply to such Court as may
have jurisdiction to appoint an additional person to act with the
persons so voting the shares, which shall then be voted as
determined by the majority of such persons and the person
appointed by the Court. If the instrument so filed shows that
any such tenancy is held in unequal interests, a majority or even-
split for the purposes hereof shall be a majority or even-split
in interests. Shares standing in the name of another corporation
may be voted by any officer, agent or proxy as the bylaws of such
corporation may prescribe, or, in the absence of such provision,
as the board of directors of such corporation may determine.
Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or
by proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares into his name. Shares
standing in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name
if authority so to do is contained in an appropriate order of the
court or other public authority by which such receiver was
appointed.
(b) A shareholder whose shares are pledged shall be
entitled to vote such shares until the shares have been
transferred into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote the shares so transferred.
ARTICLE THREE
THE BOARD OF DIRECTORS
SECTION 3.1 - GENERAL POWERS. The business and affairs of
the Corporation will be managed by or under the direction of the
Board of Directors. In addition to the powers and authority
expressly conferred upon it by these Bylaws, the Board of
Directors may exercise all such powers of the Corporation and do
all such lawful acts and things as are not by statute, by any
legal agreement among shareholders, by the Articles of
Incorporation or by these Bylaws directed or required to be
exercised or done by the shareholders. The Board of Directors
may annually elect a Chairman of the Board from among its members
and may elect a Vice Chairman of the Board from among its
members.
SECTION 3.2 - NUMBER AND TENURE. The Board of Directors
shall consist of not less than six nor more than 20 directors.
The number of directors shall be determined from time to time by
resolution of the Board of Directors. The Board of Directors
shall be divided into three classes subject to the provisions of
the Articles of Incorporation. Each director shall hold office
until his successor is elected and qualified or until his earlier
death, resignation, incapacity to serve or removal. No decrease
in the number of directors shall shorten the term of any
incumbent director. Except as otherwise provided in the Articles
of Incorporation and these Bylaws, directors shall be elected at
each annual meeting of shareholders, or at a special meeting of
shareholders called for purposes that include the election of
directors.
SECTION 3.3 - QUALIFICATION OF DIRECTORS. Directors shall
be natural persons who have attained the age of 21 years but need
not be residents of the State of Florida or shareholders of the
Corporation.
SECTION 3.4 - VACANCY. Any vacancy occurring in the Board
of Directors, including any vacancy occurring by reason of an
increase in the number of directors or by the removal of a
director, may be filled by the vote of a majority of the
directors then in office, though less than a quorum. Any
director so chosen shall hold office until such director's
successor shall have been elected and qualified. Any director
chosen by the Board of Directors to fill a vacancy created, other
than by reason of an increase in the number of directorships,
shall serve for the unexpired term of the director whose vacancy
is being filled. Any director chosen by the Board of Directors
to fill a vacancy created by reason of an increase in the number
of directorships shall serve for a term to expire at the next
election of directors by the shareholders.
SECTION 3.5 - REMOVAL. At a meeting of shareholders with
respect to which notice of such purpose has been given, any or
all members of Board of Directors may be removed for cause, and
then only by the affirmative vote of the holders of two-thirds of
the then outstanding shares of stock of the Corporation entitled
to vote, voting together as single class. Notwithstanding the
foregoing, if a removal has been approved by a resolution adopted
by at least two-thirds of the directors then in office, the
removal shall be approved by vote of the holders of a majority of
the voting power of the then outstanding shares of capital stock
of the Corporation entitled to vote, voting together as a single
class. For purposes hereof, "cause" shall mean any act or
omission for which a director may be personally liable to the
Corporation or its shareholders pursuant to the Articles of
Incorporation, as well as any other act or omission which relates
to personal dishonesty, incompetence or intentional failure to
perform stated duties.
SECTION 3.6 - COMPENSATION. The Board of Directors shall
have the authority to set the compensation of directors and
members of any committees thereof. The directors and members of
any committees thereof may also be paid for their expenses, if
any, of attendance at each meeting of the Board or any committee
thereof. No provision of these Bylaws shall be construed to
preclude any director or committee member from serving the
Corporation in any other capacity and receiving compensation
therefor.
SECTION 3.7 - NOMINATIONS OF DIRECTORS.
(a) Only persons who are nominated in accordance with the
procedures set forth in these Bylaws shall be eligible for
election as directors. Nominations of persons for election to
the Board of Directors of the Corporation may be made at any
meeting of shareholders at which directors are to be elected only
(i) by or at the direction of the Board of Directors or (ii) by
any shareholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice
procedures set forth in this Section. Each year the President
shall appoint a special committee of three directors to recommend
to the Board of Directors persons to be the management nominees
for election as directors. Based on such recommendations, the
Board of Directors shall act as a nominating committee to select
the management nominees for election as directors. Except in the
case of a nominee substituted as a result of the death or other
incapacity of a management nominee, the nominating committee
shall deliver the names of its nominees to the Secretary at least
twenty-five days prior to the date of the annual meeting.
(b) Nominations, other than those management nominees made
by or at the direction of the Board of Directors, shall be made
by timely notice in writing to the Secretary of the Corporation.
To be timely, a shareholder's notice shall be delivered or mailed
to and received at the principal executive offices of the
Corporation not less than 30 days prior to the date of the
meeting; provided, however, that in the event that less than 40
days' notice or prior public disclosure of the date of the
meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such
notice of the date of the meeting is mailed or such public
disclosure was made. Such shareholder's notice shall set forth
(i) as to each person whom the shareholder proposes to nominate
for election or re- election as a director, all information
relating to such person as required to be disclosed in
solicitation of proxies for election of directors, or as
otherwise required, in each case pursuant to Regulation 14A under
the Securities and Exchange Act of 1934, as amended (including
such person's written consent to being named in a proxy statement
as a nominee and to serving as a director if elected); and (ii)
as to the shareholder giving the notice (x) the name and address,
as they appear on the books of the Corporation, of such
shareholder and (y) the class and number of shares of the
Corporation's capital stock that are beneficially owned by such
shareholder. At the request of the Board of Directors, any
person nominated by the Board of Directors for election as a
director shall furnish to the Secretary of the Corporation the
information which is required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of the Corporation
unless nominated in accordance with the provisions of this
Section. The officer presiding at the meeting shall, if the
facts so warrant, determine and declare to the meeting that a
nomination was not made in accordance with the provisions of this
Section and, if he should so determine, he shall so declare to
the meeting and the defective nomination shall be discharged.
SECTION 3.8 - DIRECTORS EMERITUS. The Board of Directors
shall have the authority, at its discretion, to choose persons to
serve as directors emeritus. Such action, if taken, shall be
taken at the regular meeting of the Board of Directors next
following the annual meeting of shareholders. No more than three
persons may serve as directors emeritus at any one time. Once
elected, a director emeritus shall serve a term of one year, but
he may be re-elected by the Board to serve additional terms. A
director emeritus shall be allowed to attend all regular and
special meetings of the Board of Directors, and he may actively
participate in such meetings except that he shall not be allowed
to vote on any matters voted upon by the directors, nor shall he
be counted for purposes of determining if there is a quorum. A
director emeritus may also serve in an advisory capacity on
committees, but again, he shall not be allowed to vote. A
director emeritus may be removed from office at any time, with or
without cause, by majority vote of the Board of Directors. A
director emeritus shall be entitled to reasonable compensation
for his services as a director emeritus and to reasonable
expenses incurred in attending meetings, all as determined by the
Board of Directors, provided that no such compensation shall be
paid unless the members of the Board of Directors are likewise
being compensated, and provided further that such compensation
shall be less than that paid to the members of the Board of
Directors. A director emeritus shall not
have the responsibility imposed upon a director, nor shall he be
subject to any liability imposed upon a director, or otherwise be
deemed a director.
ARTICLE FOUR
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 4.1 - ANNUAL AND OTHER REGULAR MEETINGS. The annual
regular meeting of the Board of Directors shall be held at the
time and place of the regularly scheduled meeting of the Board of
Directors next following the annual meeting of the shareholders.
Regular meetings of the Board of Directors or any committee
thereof may be held between annual meetings without notice at
such time and at such place, within or without the State of
Florida, as from time to time shall be determined by the Board or
any committee thereof, as the case maybe.
SECTION 4.2 - SPECIAL MEETINGS. Special meetings of Board
of may be called for any purpose(s) by the Chairman of the Board
or the President or by written request of any two or more
directors then in office. Special meetings of any committee of
the Board of Directors may be held on the date set at the
previous meeting of the committee or when called by its chairman
or by a majority of its members. Any such special meetings shall
be held at such date, time and place, within or without the State
of Florida, as shall be communicated in the notice of the
meeting.
SECTION 4.3 - NOTICE. Notice of any special meeting of the
Board of Directors or any committee thereof, setting forth the
date, time and place of the meeting, shall be delivered to each
director or committee member, addressed to him at his residence
or usual place of business, or by telephone, telegram, cable,
telecommunication, teletype, facsimile transmission or personal
delivery not later than the second business day immediately
preceding the date of the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting
need be specified in the notice or any waiver of notice.
Notice of any meeting need not be given to any director or
committee member who shall attend such meeting in person (except
when the person attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not properly called or
convened) or who shall waive notice thereof, before or after such
meeting, in a signed writing.
SECTION 4.4 - QUORUM AND ADJOURNMENT. At all meetings of
the Board of Directors or any committee thereof, the presence of
a majority of the directors or committee members then in office
shall constitute a quorum for the transaction of business. In
the absence of a quorum or for any other reason, a majority of
the directors or committee members present thereat may adjourn
the meeting from time to time. Notice of any adjourned meeting
shall be given to each director or committee member who was not
present at the time of adjournment and, unless the time and place
of the adjourned meeting are announced at the time of
adjournment, to the other directors or committee members. At any
reconvened meeting following such adjournment at which a quorum
shall be present, any business may be transacted which might have
transacted at the meeting as originally notified.
SECTION 4.5 - VOTING. At all meetings of the Board of
Directors or any committee thereof, each director or committee
member present shall have one vote. The act of a majority of the
directors or committee members present at any meeting, in which
there is a quorum, shall be the act of the Board of Directors or
any committee thereof, except as otherwise provided by statute,
the Articles of Incorporation or these Bylaws. On any question
on which the Board of Directors or any committee thereof shall
vote, the names of those voting and their votes shall be entered
into the minutes of the meeting when any member of the Board of
Directors or any committee member present at the meeting so
requests.
SECTION 4.6 - PRESUMPTION OF ASSENT. Any director or
committee member present at a meeting of the Board of Directors
or any committee thereof shall be presumed to have assented to
any action taken at the meeting unless his dissent or abstention
is entered in the minutes of the meeting or unless he files, at
the meeting or immediately after its adjournment, his written
dissent to the action with the person acting as secretary of the
meeting. This right to dissent shall not be available to a
director or committee member who voted in favor of the action.
SECTION - 4.7 MEETING BY MEANS OF CONFERENCE TELEPHONE OR
SIMILAR TELECOMMUNICATIONS EQUIPMENT. Members of the Board of
Directors or any committee thereof may participate in a meeting
of the Board or any committee by means of conference telephone or
similar telecommunications equipment, by means of which all
persons participating in the meeting can hear each other.
Participation in the meeting in this matter shall constitute
presence in person at such meeting.
SECTION 4.8 - ACTION BY DIRECTORS WITHOUT A MEETING. Any
action required or permitted to be taken at any meeting of the
Board of Directors or any committee thereof may be taken without
a meeting if a written consent, setting forth the action so
taken, is signed by all the directors or all the committee
members, as the case may be, and filed with the minutes of the
proceedings of the Board or the committee. Such consent will
have the same force and effect as a unanimous vote of the Board
of Directors or the committee.
SECTION 4.9 - CONDUCT OF MEETINGS. All meetings of the
Board of Directors or any committee thereof shall be conducted in
accordance with such rules and procedures as the directors may
determine subject to the requirements of statute and, as to
matters not governed by such rules and procedures, as the
presiding officer of such meeting shall determine. The presiding
officer of any meeting of the Board of Directors shall be the
Chairman of the Board or, in his absence, the President, or, in
the absence of both, such person as designated by the Board of
Directors. The Secretary, or in his absence, a person designated
by the presiding officer, shall act as secretary of the meeting.
SECTION 4.10 - RESIGNATION. Any director may resign at any
time by giving written notice thereof to the Corporation
addressed to the Chairman of the Board or the President. Unless
otherwise specified, such resignation shall take effect upon
delivery of such notice unless some other date is specified in
such notice. Acceptance of any resignation shall not be
necessary to make it effective unless the resignation is tendered
subject to such acceptance. A director's absence from more than
three consecutive regular meetings of the Board of Directors,
unless excused by resolution of the Board of Directors, shall be
deemed to constitute the resignation of such a director,
effective once such resignation is accepted by resolution of the
Board of Directors.
ARTICLE FIVE
BOARD COMMITTEES
SECTION - 5.1 COMMITTEES.
(a) The Board of Directors may, by the vote of a majority
of the directors then in office, establish committees, including
standing or special committees, which shall have such duties as
are authorized by the Board or by these Bylaws. Committee
members, and the chairman of each committee, shall be appointed
by the Board of Directors. If an executive committee or similar
committee is designated by the Board of Directors, the President
shall serve as a member of that committee. The presiding officer
of any committee meeting shall be the chairman of the committee
and the chairman shall designate a person to act as secretary of
the committee meeting.
(b) The Board of Directors may, by the vote of majority of
the directors then in office, remove any member of any committee,
with or without cause, or fill any vacancies in any committee,
and dissolve or discontinue any committee.
(c) The designation of any committee under this
Article and the delegation of authority thereto shall
not operate to relieve the Board of Directors, or any
director, of any responsibility imposed by statute.
SECTION 5.2 - MINUTES. Each committee shall keep minutes of
its actions and proceedings. Any action taken by the Board of
Directors with respect to the actions or proceedings of any
committee shall be entered into the minutes of the Board of
Directors.
ARTICLE SIX
OFFICERS
SECTION 6.1 - OFFICERS. The officers of the Corporation
shall include a President, a Secretary, and a Treasurer. The
Board of Directors may also designate the Chairman of the Board
as an officer of the Corporation. The Board of Directors may
also designate one or more Vice Presidents as Executive Vice
President or Senior Vice President. The Board of Directors may
also elect or authorize the appointment of such other officers or
assistant officers as the business of the Corporation may
require. In addition to the duties and powers enumerated in this
Article, the officers of the Corporation shall perform such other
duties and exercise such further powers as the Board of Directors
may authorize or determine from time to time. Any two or more of
the above offices may be held by the same persons except as
prohibited by statute, but no officers shall execute, acknowledge
or verify an instrument in more than one capacity if
the instrument is required by statute or the Articles of
Incorporation to be executed, acknowledged or verified by two or
more officers. No officer need be a shareholder of the
Corporation.
SECTION 6.2 - COMPENSATION. The salaries of the officers of
the Corporation shall be fixed by the Board of Directors. No
officer shall be prevented from receiving compensation by reason
of also being a director of the Corporation.
SECTION 6.3 - ELECTION AND TERM OF OFFICE. The officers of
the Corporation shall be elected annually by the Board of
Directors at the first meeting of the Board of Directors held
after each annual meeting of the shareholders. If the election
of officers is not held at such meeting, such election shall be
held as soon as possible thereafter. Each officer of the
Corporation shall hold office until his successor is elected or
until his earlier resignation, death or removal, or the
termination of his office. The election or appointment of an
officer, employee or agent shall not itself create contractual
rights. The Board of Directors may authorize the Corporation to
enter into an employment contract or other arrangement with any
officer; no such contract, however, shall impair the rights of
the Board of Directors to remove any officer at any time in
accordance with this Article.
SECTION 6.4 - REMOVAL. Any officer may be removed from
office at any time, with or without cause, by the vote of a
majority of the directors then in office whenever in their
judgement, the best interest of the Corporation will be served
thereby. Any such removal shall be without prejudice to the
contract rights, if any, of the officer so removed.
SECTION 6.5 - VACANCY. Any vacancy in an office resulting
from a removal or to fill a new office may be filled by the Board
of Directors in the manner prescribed by these Bylaws.
SECTION 6.6 - CHAIRMAN AND VICE CHAIRMAN OF THE BOARD. The
Chairman of the Board may be elected annually by the Board of
Directors from among its members. The Chairman shall preside at
all meetings of the Board and shall perform all of the duties and
shall have all the powers commonly incident to his office or
delegated to him by the Board of Directors, or which are or may
at any time be authorized or required by statute or these Bylaws.
Unless a Vice President has been elected and has as one of his
duties to act in the President's stead in the event of his
absence or inability to serve, then the Chairman of the Board, in
the event of the President's absence, inability to serve or
refusal to serve, shall act in the President's stead and shall
have all the powers of and be subject to all the restrictions of
the President until such time as the President resumes his
duties, a new President is chosen, or an officer of the
Corporation is selected by the Board of Directors to perform the
duties of the President. The Board of Directors also may elect
annually a Vice Chairman who, in the absence of the Chairman,
shall preside at all meetings of the Board and shall perform all
of the duties and have all of the powers of the Chairman.
SECTION 6.7 - PRESIDENT. The President shall be the Chief
Executive Officer of the Corporation and shall have general
responsibility for the management and supervision of the business
of the Corporation and corporate policy. The President shall
have administrative authority over the business of the
Corporation, and shall have such further authority and perform
such other duties as may be delegated to him by the Board of
Directors.
SECTION 6.8 - VICE PRESIDENT. Each Executive Vice
President, each Senior Vice President and each other Vice
President shall have such powers and perform such duties as may
be delegated to him by the Board of Directors or delegated by the
President. In the absence or disability of the President, those
powers, duties and functions of the President may be temporarily
performed and exercised by such one of the Executive Vice
Presidents, Senior Vice Presidents or the other Vice Presidents
as shall be expressly designated by the Board of Directors. When
more than one Vice President is elected, the Board may specify an
order of seniority among such Vice Presidents.
SECTION 6.9 - SECRETARY. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the
shareholders and record all votes and the minutes of all
proceedings in books to be kept for that purpose, and shall
perform like duties for any Board committees when required. The
Secretary shall give, or cause to be given, any notice required
to be given of any meetings of the shareholders, of the Board of
Directors or any Board committees when required, and shall
perform such other duties as may be prescribed by the Board of
Directors or the President, under whose supervision the Secretary
shall be. The Secretary shall cause to be kept such books and
records as the Board of Directors or the President may require
and shall cause to be prepared, recorded, transferred, issued,
sealed and cancelled certificates of stock as required by the
transactions of the Corporation and its shareholders. The
Secretary shall attend to such other correspondence and shall
perform such other duties as may be incident to such office or as
may be assigned to him by the Board of Directors or the
President. The Secretary shall have custody of the seal of the
Corporation, shall have the authority to affix the same to any
instrument, the execution of which on behalf of the Corporation
under its seal is duly authorized, and shall attest the same by
his signature whenever required. The Board of Directors may give
general authority to any other officer to affix the seal of the
Corporation and to attest the same by his signature.
SECTION 6.10 - TREASURER. The Treasurer shall have charge
of and be responsible for all funds, securities, receipts and
disbursements of the Corporation, and shall deposit, or cause to
be deposited, in the name of the Corporation, all monies or other
valuable effects, in such banks, trust companies or other
depositories as shall from time to time be selected by the Board
of Directors. He shall render to the President and to the Board
of Directors, whenever requested, an account of the financial
condition of the Corporation, and in general, he shall perform
all such other duties as may be delegated to him by the Board of
Directors or the President.
SECTION - 6.11 ASSISTANT VICE PRESIDENT, ASSISTANT
SECRETARY AND ASSISTANT TREASURER. The Assistant Vice President,
Assistant Secretary and Assistant Treasurer, in the absence or
disability of any Vice President, the Secretary or the Treasurer,
respectively, shall perform the duties and exercise the powers of
those offices, and, in general, they shall perform such other
duties as shall be delegated to them by the Board of Directors or
by the person appointing them. Specifically, the Assistant
Secretary may affix the seal of the Corporation to all necessary
documents and attest the signature of any officer of the
Corporation.
SECTION - 6.12 DELEGATION OF AUTHORITY. In the case of the
absence of any officer of the Corporation or for any other reason
that the Board of Directors may deem sufficient, the Board of
Directors may delegate, for the time being, any or all of the
powers or duties of such officer to any other officer or to any
director.
ARTICLE SEVEN
CAPITAL STOCK
SECTION 7.1 - STOCK CERTIFICATES. Each shareholder shall be
entitled to a certificate representing the number of shares of
capital stock of the Corporation owned by such person. The
certificate shall be in such form as approved by the Board of
Directors of the Corporation. Each certificate shall be signed
by the President or a Vice President and by the Secretary or an
Assistant Secretary and shall be sealed with the seal of the
Corporation or a facsimile thereof. The signatures upon a
certificate may be facsimiles. In case any officer who shall
have signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer of the
Corporation before such certificate shall have been issued by the
Corporation, such certificate may nevertheless be issued as
though the person who signed such certificate had not ceased to
be such officer.
SECTION 7.2 - STOCK RECORDS. Each certificate for shares of
stock in the Corporation shall be numbered or otherwise
identified in the stock records of the Corporation. The
Corporation shall keep stock records which shall show the names
and addresses of the persons to whom the shares are issued, with
the number of shares and date of issuance.
SECTION 7.3 - STOCK TRANSFERS. Transfers of shares of stock
of the Corporation shall be made on the stock transfer books of
the Corporation only when authorized by the person named in the
certificate, or by his legal representative, who shall furnish
written evidence of such authority, or by his attorney authorized
by a duly executed power of attorney and filed with the
Corporation. Such transfer shall be made only upon surrender of
the certificate therefor, or in the case of a certificate alleged
to have been lost, stolen or destroyed, upon compliance with the
provisions of this Article and as may otherwise be provided by
statute. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner, and for
all other purposes, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by
law. No transfer shall be valid, except between the parties
thereto, until such transfer shall have been made upon the books
of the Corporation as herein provided. The Board of Directors
shall have the power and authority to make such other rules and
regulations concerning the issue, transfer and registration of
certificates of the Corporation's stock as it may deem
appropriate.
SECTION 7.4 - RECORD DATES. The Board of Directors may fix,
in advance, a date as the record date for the purpose of
determining shareholders entitled to notice of, or to vote at,
any meeting of shareholders or any adjournment thereof, or
shareholders entitled to receive payment of any dividend of other
distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of
stock, or in order to make a determination of shareholders for
any other purpose. Such date in any case shall not be more than
70 days, and in the case of the meeting of shareholders, not less
than 10 days, prior to the date on which the particular action,
requiring the determination of shareholders is to be taken. Only
those shareholders of record on the dates so fixed shall be
entitled to any of the foregoing rights, notwithstanding the
transfer of any such stock on the books of the Corporation after
any such record date fixed by the Board of Directors.
SECTION 7.5 - TRANSFER AGENTS AND REGISTRARS. The
Corporation may have one or more transfer agents and one or more
registrars of its stock whose respective duties the Board of
Directors or the Secretary may, from time to time, determine. No
certificate of stock shall be valid until countersigned by a
transfer agent, if the Corporation has a transfer agent, or until
registered by the registrar, if the Corporation has a registrar.
The duties of transfer agent and registrar may be combined.
SECTION 7.6 - LOST CERTIFICATES. The Corporation may issue
a new certificate of stock in place of any certificate
previously issued and alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost,
stolen or destroyed certificate, or his legal representative to
give the Corporation a bond sufficient to indemnify it against
any claim that may be made against it on account of the alleged
loss, theft or destruction of any such certificate or the
issuance of such new certificate and any other conditions as may
otherwise be provided by statute.
ARTICLE EIGHT
GENERAL PROVISIONS
SECTION 8.1 - REFERENCES. Whenever in these Bylaws
reference is made to an Article or Section number, such reference
is to the number of an Article or Section of the Bylaws.
Whenever in the Bylaws reference is made to the Bylaws, such
reference is to these Bylaws of the Corporation as the same may
be amended from time to time. Whenever in the Bylaws reference
is made to the Articles of Incorporation, such reference is to
the Articles of Incorporation of the Corporation as the same may
be amended from time to time.
SECTION 8.2 - REFERENCE TO GENDER. Whenever in the Bylaws
reference is made to the masculine gender, such reference shall
where the context so requires be deemed to include the feminine
gender and the neuter gender, and the Bylaws shall be read
accordingly.
SECTION 8.3 - LEGAL RESTRICTIONS. All matters covered in
these Bylaws shall be subject to such restrictions as shall be
imposed on the Corporation by applicable state and federal
statutes, rules and regulations.
SECTION 8.4 - SEAL. The seal of the Corporation shall be in
such form as the Board of Directors may determine from time to
time. The seal may be used by causing it or by facsimile thereof
to be impressed or affixed or reproduced or otherwise. If it is
inconvenient to use such a seal at any time, the signature of the
Chairman of the Board, President, Secretary or an Assistant
Secretary of the Corporation, followed by the word "Seal" shall
be deemed the seal of the Corporation.
SECTION 8.5 - FISCAL YEAR. The fiscal year of the
Corporation shall be fixed by resolution of the Board of
Directors and may be changed from time to time.
SECTION 8.6 - VOTING SHARES IN SUBSIDIARIES. In the absence
of other arrangements by the Board of Directors, shares of stock
issued by another corporation and owned or controlled by the
Corporation, whether in a fiduciary capacity or otherwise, may be
voted by the President of the Corporation or by such other person
as the Board of Directors by resolution shall so designate, and
such person may execute the aforementioned powers by executing
proxies and written waivers and consents on behalf of the
Corporation.
SECTION 8.7 - INSPECTION OF BOOKS. The Board of Directors
shall have the power to determine which accounts and books of the
Corporation, if any, shall be opened to the inspection of
shareholders, except such as may by statute be specifically
opened to inspection, and shall have the power to affix
reasonable rules and regulations not in conflict with the
applicable statute for the inspection of accounts and books which
by statute or by the determination of the Board of Directors
shall be opened to inspection, and the shareholders' rights in
this respect are and shall be restricted and limited accordingly.
SECTION 8.8 - CONTRACTS. No contract or other transaction
between the Corporation and any other corporation, partnership or
other entity shall be affected or invalidated by the fact that a
shareholder, director or officer of the Corporation is a
shareholder, director, partner or other officer of, or is
interested in, such other corporation, partnership or other
entity, and no contract or other transaction between the
Corporation and any other person shall be affected or invalidated
by the fact that a shareholder, director or officer of the
Corporation is a party to, or interested in, such contract or
transaction; provided that, in each such case, the nature and
extent of the interest of such shareholder, director or officer
in such contract or other transaction or the fact that such
shareholder, director or officer is a shareholder, director,
officer, partner or other party of such other corporation,
partnership, entity or other person is known to the Board of
Directors or is disclosed at the meeting of the Board of
Directors at which such contract or the transaction is
authorized.
SECTION 8.9 - AMENDMENT OF BYLAWS. These Bylaws may be
altered, amended or repealed, or new Bylaws adopted, solely as
provided in the Articles of Incorporation.
ARTICLE NINE
INDEMNIFICATION
SECTION 9.1 - INDEMNIFICATION.
A. Each person who is or was a director or
officer of the Corporation, and each person who is or
was a director or officer of the Corporation who, at
request of the Corporation, is serving or has served as
an officer, director, partner, agent, joint venturer or
trustee of another corporation, partnership, joint
venture, trust or other enterprise, shall be
indemnified by the Corporation against those expenses
(including attorneys' fees), judgments, fines and
amounts paid in settlement which are allowed to be paid
or reimbursed by the Corporation under the laws of the
State of Florida and which are actually and reasonably
incurred in connection with any action, suit or
proceeding, pending or threatened, whether civil,
criminal, administrative or investigative, in which
such person may be involved by reason of his being or
having been a director or officer of this Corporation
or as an officer, director, partner, agent, joint
venturer or trustee of such other enterprise.
B. Expenses incurred in defending a criminal or civil
action, suit, or proceeding may be paid by the Corporation in
advance of the final disposition of such action, suit, or
proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of
the director, officer, employee, or agent to repay such amount
unless it shall ultimately be determined that he is entitled to
be indemnified by the Corporation as authorized in this section.
C. In any instance where the laws of the State of Florida
permit indemnification or advancement of expenses to be provided
to a person who is or has been an officer or director the
Corporation, or who is or has been an officer, director, partner,
agent, joint venturer trustee of any such other enterprise, but
only upon a determination that certain specified standards of
conduct have been met, upon application for indemnification, or
advancement of expenses by any such person, the Corporation shall
promptly cause such determination to be made (i) by the Board of
Directors by majority vote of a quorum consisting of directors
not at the time parties to such proceeding; (ii) if such a quorum
cannot be obtained, then by majority vote of a committee duly
designated by the Board of Directors (in which designation
directors who are parties participate), consisting solely of two
(2) or more directors not at the time parties to such proceeding;
(iii) by special legal counsel selected by the Board of
Directors, if a majority vote of a quorum cannot be obtained
under (i) and a committee cannot be designated under (ii),
selected by majority vote of the full Board of Directors (in
which selection directors who are parties participate); or (iv)
by the shareholders, but shares owned or voted under control of
the directors who are at the time parties to such proceeding may
not be voted with respect to such determination.
D. As a condition to any such right of indemnification or
advancement of expenses, the Corporation may require that it be
permitted to participate in the defense of any such action or
proceeding through legal counsel designated by the Corporation
and at the expense of the Corporation.
E. The Corporation may purchase and maintain insurance on
behalf of any such persons, whether or not the Corporation would
have the power to indemnify such officers and directors against
any liability under the laws of the State of Florida. If any
expenses or other amounts are paid by way of indemnification,
other than by court order, action by shareholders or by an
insurance carrier, the Corporation shall provide notice of such
payment to the shareholders in accordance with the provisions of
the laws of the State of Florida.
F. The indemnification and advancement of expenses provided
in this Article shall not be deemed exclusive of any other
rights, in respect to indemnification or otherwise, to which the
persons seeking indemnification or advancement of expenses may be
entitled under any bylaws, resolution, agreement, statute or
otherwise.
G. The rights to indemnification and advancement of
expenses provided by this Article shall be deemed a contract
between the Corporation and each such person and any modification
or repeal of this Article shall not affect any right or
obligation then existing with respect to any stated fact then or
previously existing or any action, or proceeding previously or
thereafter brought or threatened based in whole or in part of any
such state of facts. Such contract right may not be modified or
repealed without consent of each such person. The rights to
indemnification and advancement of expenses provided by this
Article shall continue to a person entitled to indemnification
and advancement of expenses provided by this Article who has
ceased to be a director or officer and shall inure to the benefit
of the heirs, executors, or administrators of each such person.
H. Notwithstanding anything contained herein to the
contrary, Article 9 is intended to provide indemnification to
each director and officer of the Corporation to the fullest
extent authorized by the Act, as the same exists or may hereafter
be amended but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide
broader rights than said statute permitted the Corporation to
provide prior thereto.
- ---------
EXHIBIT 4
- ---------
HORIZON BANCORPORATION, INC.
SUBSCRIPTION AGREEMENT
TO: Horizon Bancorporation, Inc.
Suite C
3005 26th Street, West
Bradenton, Florida 34203
Attention: Charles S. Conoley, President
Gentlemen:
You have informed me that Horizon Bancorporation, Inc. a
Florida corporation (the "Company"), is offering 1,500,000 shares
of the Company's Common Stock ("Shares") at a price of $5.00 per
Share payable as provided herein and as described in and offered
pursuant to the Prospectus furnished to the undersigned herewith
(the "Prospectus").
1. Subscription. Subject to the terms and conditions
hereof, the undersigned hereby tenders this subscription,
together with payment indicated below in United States currency
by check, bank draft or money order payable to "Horizon
Bancorporation, Inc. - Escrow Account", representing the payment
of $5.00 per Share for the number of Shares indicated below. The
total subscription price must be paid at the time the
Subscription Agreement is executed.
2. Acceptance of Subscription. It is understood and agreed
that the Company shall have the right to accept or reject this
subscription in whole or in part, for any reason whatsoever. The
Company may reduce the number of Shares for which the undersigned
has subscribed, indicating acceptance of less than all of the
Shares subscribed on its written form of acceptance.
3. Acknowledgments. The undersigned hereby acknowledges
receipt of a copy of the Prospectus, and represents that this
subscription is made solely on the basis of the information
contained in the Prospectus and is not made in reliance on any
inducement, representation or statement not contained in the
Prospectus. The undersigned understands that no person
(including any officer or director) has authority to give any
information or make any representation not contained in the
Prospectus, and if given or made, such information and
representations should not be relied upon as having been made by
the officers or directors or the Company. This Subscription
Agreement and the Prospectus contain the entire agreement and
understanding among the undersigned, the officers and directors
and the Company with respect to the offering and sale of Shares
to the undersigned. This Subscription Agreement creates a
legally binding obligation, and the undersigned agrees to be
bound by the terms of this Agreement.
4. Revocation. The undersigned agrees that once this
Subscription Agreement is tendered to the Company it may not be
withdrawn by the undersigned and that this Agreement shall
survive the death or disability of the undersigned.
By executing this Agreement, the subscriber is not waiving
any rights he or she may have under federal securities laws,
including the Securities Act of 1933 and the Securities Exchange
Act of 1934.
Please indicate in the space provided below ("Registration
Instructions") the exact name or names and address in which the
stock certificate representing Shares subscribed for hereunder
should be registered.
- -------------------------------------------
No. of Shares Subscribed at $5.00 per Share
- -------------------------------------------
Total (Funds Tendered)
- -------------------------------------------
(Signature of Subscriber)
- -------------------------------------------
Name (Please Print)
- -----------
EXHIBIT 6.1
- -----------
Fixed Amount
ORGANIZER CONTRIBUTION AGREEMENT
This Agreement is entered into as of May 20, 1998, among the
Organizers (as defined below) of a proposed banking association
to be located in Manatee, Florida (the "Bank").
RECITALS
1 .The undersigned organizers of the Bank, and those who may
hereafter join in the execution of this agreement as additional
organizers of the Bank at the invitation of the original
organizers (collectively, the "Organizers"), have agreed to join
together for the purpose of preparing and filing an application
with the U.S. Comptroller of the Currency (the "OCC") or with the
Florida Department of Banking and with the FDIC (collectively the
"Regulators") to organize the Bank and, if deemed desirable, a
holding company for the Bank.
2. The Organizers have agreed among themselves to underwrite
the organizational and pre-opening expenses of the Bank, subject
to being reimbursed out of the proceeds of the initial
capitalization of the Bank.
3. The Organizers desire to divide among themselves
responsibility for payment of such expenses in the event the
proposed organization of the Bank is unsuccessful.
STATEMENT OF AGREEMENT
In consideration of the premises, the Organizers hereby
agree as follows:
1. This agreement must contain a minimum of eight Organizers
before becoming effective. Each of the Organizers shall
contribute a sum of cash equal to $12,000.00 to an organizational
expense fund to be maintained by a treasurer elected by the
Organizers. The treasurer shall be elected by a majority of the
votes cast by the Organizers, with each Organizer casting one
vote. From time to time upon receiving at least three business
days notification from the treasurer, each of the Organizers will
promptly contribute additional funds to the venture for the
purpose of paying organizational expenses. In addition, each of
the Organizers shall execute a line of credit to be established
by the venture, with each Organizer assuming a pro rata portion
of the liability under the line of credit. The total liability of
all Organizers pursuant to the line of credit and the cash
contributions together shall not exceed $400,000.00, unless the
Organizers by unanimous vote elect to raise the ceiling.
2. The treasurer shall keep accurate books of account of his
collections and expenditures, and shall expend organizational
funds only for filing fees, legal and other professional and
consulting fees, option or earnest money on property selected for
the Bank's premises, and other expenses incidental to the
organization and planning of the Bank and the holding company, if
one is organized to acquire and own the capital stock of the
Bank. The books of account maintained by the treasurer shall be
open to inspection by any Organizer at any reasonable time, and
the treasurer shall furnish monthly reports of his collections
and expenditures to the Organizers.
3. It is contemplated that upon preliminary approval by the
Regulators of the application to organize the Bank, the initial
capitalization will be accomplished through a public offering of
common stock of the Bank or the holding company. Upon completion
of the offering, it -is contemplated that the holding company or
Bank will promptly reimburse the Organizers for the
organizational expenses advanced by them.
4. The venture shall be managed by the Organizers as a
group, with fundamental business decisions to be made by majority
vote of the Organizers on the basis described in paragraph 1.
Other management decisions of the venture shall be made as the
Organizers may agree.
5. Each of the Organizers contemplates that he will purchase
a dollar amount of stock as is set out beside his name below.
This is a non-binding statement of intent, and the stock of the
Bank or holding company will be sold only pursuant to a
prospectus that complies with all applicable Federal and State
laws to be published after the Bank has received preliminary
approval to organize. If the application to organize does not
receive regulatory approval, or if the offering of stock is not
successful in raising the minimum capitalization required to open
the Bank, or if the Organizers by majority vote elect to abandon
the project, then the organizational expenses will be borne by
the Organizers. In the event the project is unsuccessful or
abandoned, then each Organizer will be responsible for his pro
rata portion of all organizational expenses paid, plus those for
which the Organizers have become liable. The amount of any
deficit due the organizational expense fund or any surplus from
the expense fund which may be reimbursed to the Organizers shall
be computed by the treasurer and shall be promptly paid after
rejection of the application or abandonment of the project.
6. If any Organizer shall at any time determine to abandon
the project, upon written notice to the treasurer of his decision
he shall be entitled to a refund of any contribution made to the
venture, provided that such refund shall be made at the same time
that the other Organizers are reimbursed for their contributions.
Such an abandoning Organizer shall remain liable for his pro rata
portion of any loans (whether or not made prior to the notice of
abandonment) made under a line of credit established prior to the
treasurer's receipt of the notice of abandonment described above,
except to the extent that the institution issuing the line of
credit releases such Organizer from liability for loans made
after receipt of such notice. In addition, if the Organizers are
not fully reimbursed for their contributions, an abandoning
Organizer shall be entitled to a refund of a pro rata portion of
his contributions based on such Organizer's share at the time of
withdrawal. If the Organizers are required to contribute
additional funds to satisfy the line of credit, any abandoning
Organizer shall be required to contribute additional funds to
satisfy such Organizer's liability under the line of credit to
the extent the abandoning Organizer remains liable as described
above.
7. This Agreement may be executed by the Organizers in two
or more counterparts, each of which shall be an original but all
of which shall constitute one and the same instrument.
8. This Agreement will remain open for execution by
additional Organizers who are invited to join the organizing
group by the unanimous consent of the original Organizers.
IN WITNESS WHEREOF, the Organizers have executed this
Agreement as of the date first written above.
Name and Address Date Anticipated
(Telephone Number) Stock Purchase
- ---------------- -------- --------------
Charles S. Conoley 5/20/98 $125,000.00
410 68th Court, N. W.
Bradenton, FL 34209 /S/
(941) 795-3724 (Signature)
Clarence R. Urban 5/20/98 $125,000.00
2319 59th Ave., Dr., E.
Bradenton, FL /S/
(941) 755-5949 (Signature)
Shanon Glasgow 5/20/98 $125,000.00
1209 44th Ave.
Bradenton, FL 34203 /S/
(941) 756-8727 (Signature)
Bruce R. Woodruff 5/20/98 $125,000.00
P. O. Box 20591
Bradenton, FL 34204-0591 /S/
(941) 756-1871 (Signature)
David Scherer 5/20/98 $125,000.00
5008 Mangrove Pt. Rd.
Bradenton, FL 34210 /S/
(941) 795-7644 (Signature)
Steve Mullen 6/24/98 $125,000.00
8440 N. Tamiami Trail
Sarasota, FL 34243 /S/
(941) 954-6002 (Signature)
Warren Gagner 8/12/98 $125,000.00
1808 75th St., N. W.
Bradenton, FL 34209 /S/
(941) 792-5133 (Signature)
Mary Ann Turner 7/9/98 $125,000.00
1822 97th St., N. W.
Bradenton, FL 34209 /S/
(941) 795-2274 (Signature)
Bruce Shackelford 8/23/98 $125,000.00
P. O. Box 91
Ellenton, FL 34222 /S/
(941) 776-1173 (Signature)
- -----------
EXHIBIT 6.2
- -----------
CONSULTING AGREEMENT
THIS AGREEMENT, entered into this 8th day of June, 1998, by
and between MANSOTA GROUP, INC., a Florida Corporation in the
process of organizing a national bank to be situated in Manatee
County, Florida, which will operate under a name to be named
ninety (90) days, (hereinafter referred to as the "Corporation")
and Charles Conoley (hereinafter referred to as the
"Consultant").
WITNESSETH:
WHEREAS, the Corporation is in the process of organizing the
Bank and is desirous of engaging the Consultant to assist it in
certain organizational matters; and
WHEREAS, the Consultant is desirous of providing consulting
services to the Corporation with regard to the organization of
the Bank and to serve as President and Chief Executive Officer of
the Bank after its charter has been approved, which bank is to be
owned by a Bank Holding Company (the "Holding Company"), which
will be organized to own all of the stock of the Bank.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto agree as follows:
1. ENGAGEMENT: The Corporation agrees to engage the
Consultant and the Consultant agrees to provide consulting
services to the Corporation relating to the regulatory process
associated with the Corporation's application for the Bank's
charter and for permission to form the Bank Holding Company, and
the development of organizational and business plans relating to
the operation of the Bank and the Holding Company.
2. TERM: The term of this Agreement shall commence on 15th,
June, 1998, and shall continue until the earlier of twelve (I 2)
months from the date of commencement of this Agreement or the
date the Bank is no longer in the organization period and has
opened for business.
3. SERVICES: The Consultant shall exert his best efforts
and devote substantially all of this time and attention to the
organizational matters of the Bank and the Holding Company.
4. COMPENSATION: As compensation for the Consultant's
services the Corporation shall pay the Consultant a fee as
follows:
a. $5,000.00 per month salary until the "Bank"
application is filed with the appropriate regulatory authorities;
b. Thereafter, $6,000.00 per month salary until the
minimum amount of stock required to start the Bank is sold;
c. Thereafter, $8,000.00 per month until the "Bank is
opened. The parties intended to then enter into a more formal
employment contract for the Consultant to be hired as the Bank's
president. The parties hereby agree to negotiate the employment
contract in good faith;
d. At opening of the "Bank, the Corporation will pay a
bonus of $16,000.00.
5. EXPENSES:
a. Expenses shall include the Consultants current
country club dues and various club dues as shall shown on Exhibit
A.
b. Insurance. The Consultant shall also be entitled to
a satisfactory health, dental, life and disability policy paid by
the Corporation until the President and CEO contract is in place.
The life insurance policy minimum shall be for a $250,000 term
life. This policy may be part of a "key man" policy, if
available.
c. Other Expenses. The Consultant shall also be
entitled to reimbursement for all reasonable expenses incurred by
him in the Performance of his duties upon presentation of a
voucher indicating the amount and the business purposes.
6. TERMINATION: In the event of the Consultant's death or
in the event the Consultant is prevented from rendering Services
by reason of illness, incapacity or injury for a period of sixty
(60) consecutive days during the term of this Agreement, or in
the event the Consultant fails to perform the services required
hereunder, then and in such event the Corporation may terminate
this Agreement upon written notice to the Consultant. If the
Agreement is terminated for other than cause, as cause is defined
in an Employment Agreement to be negotiated between the parties
within sixty (60) days of signing this agreement, and the
Consultant has commenced providing services, then the Corporation
shall continue to compensate the Consultant under Section 4(a)
above for a period of 3 months from the date of notification. In
the event Consultant voluntarily terminates his services, then
the post termination covenants set forth in paragraph 7 of the
Employment Agreement, as hereinafter defined, shall be applicable
to Consultant.
7. RATIFICATION OF EMPLOYMENT AGREEMENT: In the event the
Bank is granted its charter and the requisite amount of capital
has been raised to permit the Bank to open for business, the
shareholders of the Corporation agree to ratify and approve, on
behalf of the Bank, the Employment Agreement The shareholders of
the Corporation shall also cause the Board of Directors of the
Bank to ratify and approve such Employment Agreement. Upon
approval by the Bank's Board of Directors of the Employment
Agreement, the Consultant agrees to enter into said Employment
Agreement and perform the duties enumerated therein as the
president and Chief Executive officer of the Bank. Each
shareholder of the Corporation represents to the Consultant that
he will vote for the approval of said Employment Agreement at the
initial Board of Directors meeting of the Bank, and that they, as
a group, will have sufficient votes to ratify said Employment
Agreement.
8. NOTICES: All notices, requests, demands and other
communications provided for by this Agreement shall be in writing
and shall be deemed to have been given at the time when mailed at
any general or branch United States Post Office enclosed in a
certified, Postage pre-paid envelope, and addressed to the
address of the respective Parties stated below, or as such party
may have fixed by notice:
To the Corporation:
Clarence R. Urban
2108 Whitfield Park Loop
Sarasota, FL 34243
To the Consultant:
Charles Conoley
410 68th Court Northwest
Bradenton, FL 34210
9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and benefit of and be binding upon the Corporation
and its successors. The Consultant may not assign his right to
payment not his obligations under this Agreement.
10. GOVERNING LAW. This Agreement shall in all respects be
interpreted, construed and governed by and in accordance with the
laws of the State of Florida.
11. MISCELLANEOUS. This Agreement supersedes all prior
understandings and agreements between the parties, and may not be
amended orally, but only in writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and
year first above written.
"Corporation"
MANASOTA GROUP INC.
By: /S/ Shannon Glasgow By: /S/ Clarence R. Urban
--------------------- --------------------
Its Director Its Director
By: /S/ David Scherer
---------------------------
Its Director
By: /S/ Charles Conoley /S/ Charles Conoley
--------------------- -------------------
Its Director CHARLES CONOLEY
- -----------
EXHIBIT 6.3
- -----------
THIS AGREEMENT FOR SALE AND PURCHASE OF PROPERTY is made
this 30th day of Sept., 1998, by and between MANASOTA GROUP,
INC., a Florida corporation, or its assigns ("Purchaser"), having
a mailing address at 2108 Whitfield Park Loop, Sarasota, Florida
34243 and WDO VENTURE, a Florida limited partnership ("Seller"),
c/o Sam Reiber, Esq., Linsky & Reiber, P.A. 601 E. Twiggs, Tampa,
FL 33602.
1. AGREEMENT TO SELL; PURCHASE PRICE:
1.1 Agreement to Sell and Convey. Seller hereby agrees to
sell and convey to Purchaser and Purchaser hereby agrees to
purchase from Seller, subject to the terms and conditions
hereinafter set forth, a 1.04 acre or 45,360 square foot
outparcel site located on the SE quadrant of the intersection of
53rd Avenue East and 9th Street East Manatee County, Florida, and
being more particularly described on Exhibit "A" attached hereto
and made a part hereof for all purposes, together with the
following:
(a) All and singular the rights, leases, tenements,
hereditaments and appurtenances pertaining thereto, including any
right, title and interest of Seller in and to adjacent streets,
road, alleys and rights-of-way;
(b) Ingress and egress easements providing full, free
and adequate access to and from public highways and roads which
are located contiguous to and abutting the boundary of the
Property, and to and from interior roadways for traffic flowing
into or out of the parking lot for the Winn Dixie Marketplace
lying east of the Property; and
(c) Subject to approval of Winn-Dixie, a cross parking
easement permitting customers of Winn-Dixie Marketplace to park
in parking spaces on the Property which is the subject of this
agreement; and permitting Purchaser's customers to park in the
parking lot for the Winn-Dixie Marketplace lying east of the
Property; and
(d) Drainage easement(s) to off site retention areas
located on the adjoining Winn-Dixie Marketplace property; and
(e) Such other rights, interests and properties as may
be specified in this Agreement to be sold, transferred, assigned,
or conveyed by Seller to Purchaser.
The parcel of land described on Exhibit "A", and the rights,
interests, improvements, fixtures and other properties described
above, are collectively called the "Property."
1.2 Purchase Price. The purchase price ("Purchase Price")
to be paid for the Property shall be FOUR HUNDRED SEVEN THOUSAND
FIVE HUNDRED AND no/100 DOLLARS ($407,500.00). The Purchase Price
shall be paid by Purchaser to Seller as follows:
$ 10,000.00 Earnest money deposit ("Deposit") to be
delivered to and held by Linsky & Reiber, P.A. at its office in
Tampa, Florida ("Escrow Agent'), simultaneously with the delivery
of this Agreement signed by Purchaser. The Deposit shall be
placed in an interest bearing account with the interest credited
to Purchaser for income tax reporting purposes.
$ 40,000.00 Additional deposit upon site plan/use
approval.
$351,500.00 Cash in the form of a cashier's check,
attorney's trust account check, or wired
funds, all payable in U.S. funds at
Closing plus or minus prorations and
closing costs as set forth hereinafter.
$407,500.00 Total purchase price.
==========
2. PROVISIONS WITH RESPECT TO CLOSING.
2.1 Inspection of Property. Purchaser and its agents, at
Purchaser's sole cost and expense, shall have sixty (60) days
from the Effective Date of this Agreement ("Inspection Period")
to inspect, examine, test, evaluate, and enter upon the Property,
for the purposes of inspecting all improvements situated thereon
and conducting any and all tests, inspections and examination,
including but not limited to, soil tests, engineering tests,
environmental audits, examining financial feasibility of any
plans contemplated for the Property, determining all, permit,
approval and governmental requirements, examining and obtaining
any title insurance commitments, policies or other evidence of
title to the Property and examining and obtaining any surveys of
the Property, all as Purchaser deems necessary or appropriate to
determine the desirability of consummating the transaction
contemplated herein. In the event Purchaser determines that the
Property is not suitable for its purposes for any reason
whatsoever, then the Purchaser may give written notice of
termination of this Agreement to Seller at any time during the
Inspection Period and upon such termination, the Deposit held by
the Escrow Agent shall be promptly returned to Purchaser and
neither party shall have any further liability, right or
obligation hereunder. In the event Purchaser fails to give
written notice of termination of this Agreement to Seller on or
before the expiration of the Inspection Period, then Purchaser
shall be deemed to have waived its right to terminate this
Agreement pursuant to this section, but all other terms,
conditions, contingencies, rights and obligations under this
Agreement shall remain in full force and effect. Seller agrees
to provide Purchaser copies of all environmental studies of the
Property in Seller's possession or commissioned by Seller, and
any parcel adjacent thereto, within fifteen (1 5) days from the
Effective Date.
2.2 Permit Contingency. Purchaser's obligations hereunder
are expressly conditioned upon the Purchaser, at Purchaser's
expense, applying for and obtaining all required approvals from
Manatee County, Florida, under county ordinances and land use
regulations, for the construction of a full service banking
facility with a one story building of up to 7,000 square feet
together and a drive through banking facility with four traffic
lanes (herein "the Improvements"). Purchaser's obligations are
further conditioned upon obtaining such Comprehensive Land Use
Plan amendments as may be necessary to obtain building permits
for such project. Purchaser's obligations are further
conditioned upon obtaining all required permits (or approvals
from any Federal, state, county or other local governmental
authority with jurisdiction over the subject property) for such
project, including, without limitation, all required permits from
the U.S. Army Corps of Engineers, State of Florida Department of
Environmental Protection and Southwest Florida Water Management
District for the construction of a full service banking facility
on the property. To implement the provisions hereof, Seller
hereby constitutes and appoints Purchaser as its agent and
attorney-in-fact for any and all such applications, hearings and
procedures pursuant to the provisions of this paragraph;
provided, that all expenses in connection with such applications
shall be at Purchaser's sole expense. Purchaser agrees to
promptly apply for and diligently pursue all necessary approvals
from Manatee County and all Federal, State or other local
governmental authorities with jurisdiction over the subject
property. If final government approval of said applications has
not been obtained by January 15, 1999, then Purchaser may cancel
this contract in which event all deposits paid hereunder shall be
refunded to Purchaser provided further, however, that if, as of
said date, the final agency action has been scheduled, or the
final public hearing has been scheduled before the governmental
board or commission having final Approval authority, then the
terms of this condition shall be deemed extended until said
hearing date. The closing shall occur, within 30 days following
final approval. Seller agrees to execute such authorizations or
other documents as may be required by governmental authorities in
order to evidence Seller's joinder in and consent to such
applications. Also, Seller and Purchaser agree that Jerry Zoller
shall be retained by Purchaser to provide engineering, land
planning, surveying and consulting services to Purchaser in
connection with the foregoing matters.
2.3 Closing Date. The consummation of the transaction
contemplated by this Agreement ("Closing") shall take place no
later than thirty (30) days following final approval for all
permits from all applicable governmental agencies for
construction of the Improvements. However, this transaction shall
close no later than March 24, 1999. The Closing shall take place
at the Purchaser's attorneys' offices in Bradenton, Florida or at
such other place mutually agreed to by the Purchaser and Seller.
2.4 Seller's Obligation at Closing. At Closing, Seller
shall do the following:
(a) Execute, acknowledge, and deliver to Purchaser a
Statutory Warranty Deed conveying the Property to Purchaser
subject only to the Permitted Exceptions, which deed shall be in
form for recording. The legal description of the Property
contained in such deed shall be identical to the legal
description of the Property as contained in the Survey, the Title
Commitment and Exhibit "A" of this Agreement.
(b) Deliver to Title Company evidence satisfactory to it of
Seller's authority to execute and deliver the documents necessary
or advisable to consummate the transaction contemplated hereby.
(c) Deliver to Purchaser copies of all licenses, permits,
authorizations and approvals required by law and issued by all
governmental authorities having jurisdiction, if any, and the
original or a photocopy of each bill for current real estate
taxes for the two (2) years immediately preceding Closing,
together with proof of payment thereof (if any of the same have
been paid).
(d) Execute and deliver to Purchaser and Title Company an
Affidavit of No Liens satisfactory to Title Company so as to
cause Title Company to remove the mechanics' lien and parties in
possession standard exceptions from the Title Commitment.
(e) Deliver to Purchaser a written assignment of all
warranties, guarantees and rights which the Seller may have in
connection with the Property.
(f) Deliver to Purchaser written evidence that access to
the Property is provided by a publicly dedicated and accepted
paved road appurtenant thereto.
(g) Deliver to Purchaser such other documents as may be
reasonably necessary t6 effectuate the provisions of this
Agreement including, but not limited to, any documents required
by Purchaser's Lender, Title Company or Escrow Agent
2.5 Purchaser's Obligations at Closing. Subject to the
terms, conditions and provisions hereof, and contemporaneously
with the performance by Seller of his obligations set forth in
Section 2.3 above, Purchaser shall deliver to Seller cash in the
form and amount described in, and in accordance with, Section
1.2.
2.6 Closing Costs.
(a) Seller shall pay the following costs and expenses
in connection with the Closing:
(i) All premiums and costs payable for the
Owner's Title Commitment and standard and extended coverage Title
Policy, including all available endorsements, issues pursuant
thereto; and
(ii) Costs of recording corrective instruments,
if any;
(iii) Seller's attorney fees.
(iv) All transfer taxes and charges and
documentary stamps, if any, which are required to be affixed to
the General Warranty Deed;
(b) Purchaser shall pay the following costs and
expenses in connection with the Closing:
(i) All recording costs of the Statutory Warranty
Deed and any other documents;
(ii) The cost for any and all professional
services for engineering, land planning, surveying and consulting
services to obtain governmental approvals for Purchaser's
intended use of the Property; and
(iii) Purchaser's attorney fees.
2.7 Proration of Taxes and Rents. Taxes, assessments, rent
interest, insurance and other expenses of the Property shall be
prorated through the day before closing. Cash at closing shall
be increased or decreased as may be required by prorations to be
made through day prior to closing or occupancy, if occupancy
occurs before 'closing. Taxes shall be prorated based on the
current year's tax with due allowance made for maximum allowable
discount, homestead and other exemptions. If closing occurs at a
date when the current year's millage is not fixed and cur-rent
year's assessment is available, taxes will be prorated based upon
such assessment and prior year's millage. If current year's
assessment is not available, then taxes will be prorated on prior
year's tax proration based on an estimate shall, at request of
either party, be readjusted upon receipt of tax bill on condition
that a statement to that effect is signed at closing.
3. CONDITIONS TO CLOSING.
3.1 Conditions to Purchaser's Obligations. In addition to
the provisions set forth in Sections 2.1 and 2.2, the obligations
of Purchaser hereunder to consummate this transaction and the
Closing contemplated by this Agreement are subject to the
satisfaction, as of the Closing, of each of the following
conditions ("Closing Conditions") (any of which may be waived in
whole or in part in writing only by Purchaser, in its sole
discretion, at or prior to the Closing). In the event any
Closing Condition is not satisfied or waived by Purchaser, then
Purchaser may give written notice of termination of this
Agreement to Seller and upon such notice, the Agreement shall be
terminated and the Deposits held by Escrow Agent shall be
promptly returned to Purchaser and neither party shall have any
further liability right or obligation hereunder.
(a) Correctness of Representations and Warranties.
The representations and warranties of Seller set forth herein
shall be true on and as of the date of Closing with the same
force and effect as if such representations and warranties had
been made on and as of the date of Closing.
(b) Compliance by Seller. Seller shall have
performed, observed and complied with all of the covenants,
agreements and conditions required by this Agreement to be
performed, observed and complied with by Seller prior to or as of
the Closing.
(c) Utilities. Purchaser shall have made arrangements
satisfactory to it, in its sole discretion, for the provision of
sanitary sewer, water, electricity, and all other utilities
necessary for the Improvements to the Property. All such
utilities must be adequate and usable for the Improvements.
(d) Cross-easement Requirement. This contract is
strictly contingent upon Purchaser securing an agreement for
cross parking with the fee simple owner of the shopping center
plaza lying adjacent to the Property, and the procurement of any
and all lien subordinations and tenant consents to effectuate a
free and clear cross parking agreement. The nature and scope of
the cross parking agreement must also include rights of ingress
and egress across the shopping center parcel lying adjacent to
the Property, and further provide for drainage across the
shopping center parcel, to the extent necessary, to comply with
applicable storm water and surface water management permitting
arrangements from government authorities. The cross parking and
cross access and drainage easements must be insured under the
title policy to be provided pursuant this agreement.
(e) Due Diligence Documents. Seller shall within
fifteen (15) days from the Effective Date finish to Purchaser
copies of all engineering plans, surveys topographic surveys,
soil tests or reports, finished grade tests or reports, complete
copy of the zoning approval, including the approved site plan,
copies of all permits obtained from any governmental agency
including Manatee County, Florida Department of Transportation,
Florida Department of Environmental Protection, the Southwest
Florida Water Management District and similar agencies, in
Seller's possession or control.
4. SURVEY AND TITLE COMMITMENT; PERMITTED EXCEPTIONS.
4.1 Preliminary Title Report. Within twenty (20) days
after the Effective Date hereof, Seller at Seller's sole cost and
expense, shall cause a title insurance company acceptable to the
Purchaser ("Title Company") to issue and deliver to Purchaser an
A.L.T.A. Form B title commitment ("Title Commitment'),
accompanied by one copy of all documents affecting the Property,
and which constitute exceptions to the Title Commitment.
Purchaser shall give Seller written notice on or before the
expiration of the later of (i) thirty (30) days after receipt of
the Title Commitment or (ii) thirty (30) days after receipt of
the survey provided for below, that the condition of title as set
forth in such Title Commitment and Survey is or is not
satisfactory, in Purchaser's sole discretion. In the event that
the condition of title is not acceptable, Purchaser shall state
which exceptions to the Title Commitment are acceptable and
Seller shall undertake to eliminate the remaining exceptions as
set forth below, provided, however, that at Closing, existing
mortgages shall be satisfied or the liens thereof partially
released as the case may be, as to the Property. Seller shall,
at its sole cost and expense, promptly undertake and use its best
efforts to eliminate or modify all unacceptable matters to the
reasonable satisfaction of Purchaser. In the event Seller is
unable with the exercise of due diligence to satisfy said
obligations within forty-five (45) days after said notice,
Purchaser may, at its option: (i) accept title subject to the
objections raised by Purchaser, without an adjustment in the
Purchase Price, in which event said objections shall be deemed to
be waived for all purposes, or (ii) rescind this Agreement,
whereupon the Deposit described herein shall thereupon be
returned to Purchaser and this Agreement shall be of no further
force and effect. At the Closing, the Title Policy and all
available endorsements shall be issued by the Title Company at
Seller's sole cost and expense, shall be in accordance with the
Title Commitment, shall be acceptable to Purchaser, and shall
pertain only to the Property.
4.2 Permitted Exceptions. The Property shall be conveyed
to Purchaser subject to no liens, charges, encumbrances,
exceptions or reservations of any kind or character except for
those acceptable to Purchaser under Section 4.1 and except for
those identified on Exhibit "B" attached hereto and made a part
hereof ("Permitted Exceptions").
4.3 Current Survey. Within forty five (45) days from the
Effective Date hereof, Purchaser, at Purchaser's sole cost and
expense, shall secure a survey (the "Survey") of the Property
prepared by a land surveyor acceptable to Purchaser and duly
licensed in the state in which the Property is located. The
Survey as to the Property shall:
(a) Set forth an accurate metes and bounds
description, if applicable; and
(b) Locate all existing easements and rights-of-way
(setting forth the book and page number of the recorded
instruments creating the same), alleys, streets, and roads on or
adjacent to the Property; and
(c) Show any encroachments; and
(d) Show all existing improvements (such as buildings,
power lines; fences, etc); and
(e) Set forth the total square footage of the
Property; and
(f) Be certified to Purchaser, the Title Company and
Purchaser's lender, if any, and shall indicate that such Survey
was prepared in accordance with the minimum technical
requirements and standards as promulgated by the state in which
the Property is located; and
(g) Show all dedicated public streets providing access
and whether such access is paved to the Property line; and
(h) Show the location of any easements necessary for
the furnishing of off-site improvements.
(i) List and show all exceptions to the Title Policy.
Purchaser hereby agrees, at Purchaser's own cost and
expense, to cause such additional surveying work to be timely
contemplated as may be necessary or required by the Purchaser or
the Title Company for its issuance of the Title Policy. In the
event the Survey, or the recertification thereof, shows any
encroachments of any improvements upon, from, or onto the
Property, or on or between any building setback line, a property
line, or any easement, except those acceptable to Purchaser, in
Purchaser's sole discretion, said encroachment shall be treated
in the same manner as a title defect under the procedure set
forth above.
5. AFFIRMATIVE COVENANTS OF SELLER.
Seller hereby affirmatively covenants and agrees to the
following:
5.1 Acts Affecting Property. From and after the Effective
Date hereof, Seller, unless otherwise agreed to in writing by
Purchaser, will refrain from (a) making any change or
improvements upon or about the Property; ----- (c) committing any
waste or nuisance upon the Property; and Seller will maintain and
keep the Property in neat condition and will observe all laws,
ordinances, regulations and restrictions affecting the Property
and its use, and will pay all taxes on the Property, as they
become due, except that after the Closing, Purchaser shall be
responsible for the taxes on the Property acquired at Closing.
5.2 Notice of Change in Laws. Seller will advise Purchaser
promptly of any change in any applicable laws, regulations,
rulings or orders, of which Seller obtains knowledge, which might
affect the value or use of the Property by Purchaser.
5.3 Soil Tests. Purchaser and its agent and
representatives shall be entitled to enter upon the Property for
inspection, soil tests, examination and land-use planning prior
to the Closing. (In this regard, no such examination will be
deemed to constitute a waiver or relinquishment on the part of
Purchaser or its rights to rely on the covenants,
representations, warranties or agreements made by Seller.)
Purchaser hereby holds Seller harmless from any damages or
liabilities arising from injuries caused by Purchaser, its agents
or representatives in pursuing the activities permitted under
this Section. Seller further agrees that in the event soil
testing or the Phase I Environmental Property Assessment (see
Section 6.13, below) indicate that toxic substances and/or
hazardous materials (see Section 6.13, below) exist or are likely
to exist, on the Property, then either: (1) Seller, at his sole
cost, shall remove, remedy, and clean-up any and all such toxic
substances and/or hazardous materials, and test and verify same,
so that the Property and the parties are in total compliance with
all Environmental Laws to Purchaser's satisfaction; or (2)
Purchaser may, at its election and sole option, terminate this
Agreement whereupon Escrow Agent shall, upon notice of Purchaser,
return the Deposit to Purchaser, and the parties shall thereafter
have no further rights or obligations hereunder; or (3) Seller
may terminate this Agreement by giving written notice to
Purchaser and Escrow Agent and by paying directly to Purchaser
one-half (1/2) of the verified costs of Purchaser's boundary
survey, appraisal and environmental/soil testing and analysis,
and Purchaser shall, upon such notice, be refunded the Deposit,
and the parties thereafter shall have hereunder no further rights
or obligations. Cost cap to Seller is $2500.00.
5.4 Payment of Special Assessments. Seller shall pay in
full all special assessments against the Property to the date of
Closing, whether any or all installments of such assessments are
mature or unmatured.
5.5 Further Assurances. In addition to the obligations
required to be performed hereunder by Seller at the Closing,
Seller agrees to perform such other acts, and to execute,
acknowledge, and/or deliver subsequent to the Closing such other
instruments, documents and other materials as Purchaser may
reasonably request in order' to effectuate the consummation of
the transaction contemplated herein and to vest title to the
Property in Purchaser.
5.6 Licenses, Permits, Leases and Other Information. Upon
the Effective Date hereof, Seller shall immediately provide
Purchaser with a copy of all feasibility and marketing studies,
renderings, drawings, prior surveys, prior title commitments,
prior title policies, prior environmental reports and audits,
soil tests, zoning letters, engineering plans and specifications,
permits, and all leases, rent rolls, management agreements,
service agreements and employment contracts, if applicable,
pertaining to the Property (with all amendments thereto),
together with all licenses, permits, approvals, orders and
authorizations, and letters and applications relating thereto,
issued by or obtained from any governmental, utility, or
regulatory agency or entity which in any manner relate to the
Property.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller, to the best of its knowledge, hereby makes the
following covenants, representations and warranties to Purchaser,
all of which shall survive the Closing:
6.1 Marketable Title. Seller has good, marketable and
insurable title to the Property, free and clear of all mortgages,
liens, encumbrances, leases, tenancies, security interests,
covenants, conditions, restrictions, rights-of-way, easements,
judgments and other matters affecting title except the Permitted
Exceptions.
6.2 Zoning. The Property is presently zoned for shopping
center use and permits Purchaser to operate the Improvements as a
legal and conforming use and structure on the Property.
6.3 Adverse Information. Seller has no information or
knowledge of any change contemplated in any applicable laws,
ordinances, or regulations, or any judicial or administrative
action, or any action by -adjacent landowners, or natural or
artificial conditions upon the Property, which would prevent,
limit, impede, or render more costly Purchaser's contemplated use
of the Property.
6.4 Compliance with Laws. Seller has complied with all
applicable laws, ordinances, regulations, statutes, rules and
restrictions pertaining to and affecting the Property.
Performance of this Agreement will not result in any breach of,
or constitute any default under, or result in the imposition of,
any lien or encumbrance upon the Property under any agreement or
other instrument to which Seller is a party or by which Seller of
the Property might be bound.
6.5 Pending Litigation. There are no pending or threatened
legal actions, suits or other legal or administrative
proceedings, including condemnation or eminent domain cases, and
bankruptcy, receivership or insolvency proceedings, affecting the
Property or any portion thereof, nor has Seller any knowledge
that any such action or proceedings are presently contemplated.
6.6 No Special Assessments. No portion of the Property is
affected by any special assessments, recorded or unrecorded,
whether or not constituting a lien thereon.
6.7 Access to Highways and Roads. The Property has full,
free and adequate access to and from public highways and roads
which are located contiguous to and abutting the boundary of the
Property, and Seller has no knowledge of any fact or condition
which would result in the termination of such access.
6.8 Commitments to Governmental Authorities. No
commitments have been made to any governmental authority, utility
company, school board, church or other religious body, or any
homeowners association, or to any other organization, group, or
individual, relating to the Property which would impose an
obligation upon Purchaser or its successors or assigns to make
any contribution or dedications of money or land or to construct,
install, or maintain any improvements of a public or private
nature on or off the Property; and no governmental authority has
imposed any requirement that any developer of the Property pay
directly or indirectly and special fees or contributions or incur
any expenses or obligations in connection with any development of
the Property or any part thereof. The provisions of this Section
shall not apply to any regular or nondiscriminatory local real
estate taxes assessed against the Property.
6.9 Seller's Residence. Seller is a United States resident
for purposes of U.S. Income Taxation (as that term is defined in
the Internal Revenue Code and Income Tax Regulations) and that no
withholding of sale proceeds is required with respect to Seller's
interest in the Property under Section 1445(a) of the Internal
Revenue Code, as amended.
6.10 Flooding.. The Property has not suffered any damage
nor required any extraordinary repairs due to flooding or
inadequate drainage, and has sufficient fill to permit the
construction of the improvements listed in paragraph 2.2 above.
6.11 Wetlands. No portion of the Property is wetlands
within the jurisdiction of any agency of the state, region, local
government, or district in which the Property is located.
6.12 Utilities. Public sanitary and storm sewers, public
water facilities, electrical facilities, telephone service lines,
cable T.V. service lines, and easements for same (collectively
the "Utilities"), are to the perimeter boundary of, and duly
connected to the Property and easements necessary for the use of
the storm water drainage master retention system for the Property
have been obtained.
6.13 Environmental Matters. To the best of Seller's
knowledge, Seller further represents and warrants to Purchaser
the following:
(a) The Real Property is in full compliance ,with all
federal, state and local environmental laws and regulations,
including but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986 ("SARA"),
the Federal Water Pollution and Control Act, the Federal Clean
Water Act, the National Environmental Policy Act, the Resource
Conservation and Recovery Act of 1976 ("RCRA"), as amended by the
Hazardous and Solid Waste Amendments of 1984, the Hazardous
Material Transportation Act, the Federal Clear Air Act, and any
and all state, regional and local laws, statutes, ordinances,
rules and regulations relating to Hazardous Materials or
regulation of Hazardous Materials, including but not limited to,
Chapters 376 ("Pollutant Discharge Prevention and Removal"), 377
("Energy Resources") and 403 ("Environmental Control"), of
Florida Statutes, and rules related thereto including Chapters
17, 27 and 40 of the Florida Administrative Code (hereinafter.
together with any amendments thereto "Environmental Laws");
(b) There are no hazardous materials, substances,
wastes or other environmental regulated substances (including,
without limitation, asbestos, polychlorinated biphenyls
("PCB's"), petroleum products, toxic or radioactive materials,
ammonia, chlorine, pesticides, bulk chemicals, substances listed
in the United States Department of Transportation Table or by the
Environmental Protection Agency (or any successor agency) as
hazardous substances, or which are classified as hazardous or
toxic under local, state or federal laws, rules or regulations
("Hazardous Materials") located on, in or under the Property or
used in connection therewith;
(c) The Property is not on any Hazardous Materials
clean-up list or any governmental authority;
(d) Seller has not received a summons, citation,
directive, letter or other communication, written or oral, from
any governmental authority, including, but not limited to any
agency or department of the state, region, or local government in
which the Real Property is located, or the Untied States
government, nor has any action ever been commenced or threatened
by any governmental authority concerning any intentional or
unintentional action or omission on Seller's part which resulted
in the releasing, spilling, leaking, pumping, pouring, emitting,
emptying or dumping of Hazardous Materials into or onto the Real
Property;
(e) The Property has never been used by previous
owners or operators or by Seller to generate, manufacture,
refine, transport, treat, store, handle or dispose of Hazardous
Materials.
6.14 Changes. In the event any changes occur as to any
information, documents or exhibits referred to in the
subparagraphs of Sections 5 and 6 hereof, or in any other part of
this Agreement of which Seller has knowledge, Seller will
immediately), disclose same to Purchaser when first available to
Seller; and in the event of any change which may be deemed by
Purchaser to be materially adverse, Purchaser may, at its
election and its sole discretion, terminate this Agreement and
obtain a refund of the Deposit made hereunder.
6.15 DELETED
6.16 Indemnification. Seller agrees to indemnify and hold
Purchaser harmless, and its officers, directors. partners,
employees and agents. from and against any liability, claim,
loss, dama2e or expense. Including reasonable attorney's fees.
whether incurred before trial, at trial or on appeal, asserted
against or suffered by Purchaser resulting from any of the
following if any of the following commence, occur or exist within
one (1) years of the Closing Date:
(a) any breach by Seller of this Agreement; or
(b) the inaccuracy or breach of any of the
representations, warranties or covenants made by Seller herein
including, without limitation, those made in Section 6.
7. RESERVED.
8. PROVISIONS WITH RESPECT TO FAILURE OF TITLE, DEFAULT AND
SECURITY DEPOSIT.
8.1 Failure of Title. If Seller shall be unable to convey
title to the Property or any portion thereof on the Closing Date
in accordance with the provisions of this Agreement (i) Seller
shall, on or prior to the Closing Date, give notice of such
inability (and the nature thereof) to Purchaser, and (ii)
Purchaser may either accept such title as Seller can convey,
without abatement of the Purchase Price, or terminate this
Agreement, in which event the Deposit made hereunder shall be
forthwith returned to Purchaser.
8.2 Default by Seller. In the event that Seller shall be
obligated but fail to consummate the transaction contemplated
herein for any reason, or in any way breach any obligation,
covenant, warranty, representation or other provision of this
Agreement or its exhibits, except Purchaser's default, Seller
shall be deemed in default under this Agreement and Seller agrees
that the Deposit shall be returned immediately to Purchaser on
demand and Purchaser shall not thereby waive any right or remedy
it may have because of such default, including the right to
specific performance. No delay or omission in the exercise of
any right or remedy accruing to Purchaser upon any breach by
Seller under this Agreement shall impair such right or remedy or
be construed as a waiver of any such breach theretofore or
thereafter occurring. The waiver by Purchaser of any condition
or of. any subsequent breach of the same or any other term,
covenant or condition herein contained shall not be deemed to be
a waiver or any other condition or of any subsequent breach of
the same or any other term, covenant, or condition herein
contained. All rights, powers, options or remedies afforded to
Purchaser either hereunder or by law shall be cumulative and not
alternative and the exercise of one right, power, option or
remedy shall not bar other rights, powers, options or remedies
allowed herein or by law.
8.3 Default by Purchaser. In the event Purchaser shall be
obligated but fail to consummate the transaction contemplated
herein for any reason, except default by Seller or failure to
satisfy any of the Closing Conditions to Purchaser's obligations
under Section 3.1 or termination by Purchaser during the
Inspection Period, as set forth herein, Purchaser shall be deemed
in default under this Agreement and Seller and Purchaser agree
that Seller's sole right and exclusive remedy against Purchaser
shall be that the Deposit paid to Escrow Agent to date, if any,
shall be paid by Escrow Agent to Seller on written demand by
Seller, whereupon such Deposit shall be retained by Seller (a) as
consideration for the execution of this Agreement; (b) as agreed
on liquidated damages sustained by Seller because of such default
by Purchaser (the parties hereto agreeing that the retention of
such funds shall not be deemed a penalty, and recognizing the
impossibility of precisely ascertaining the amount of damages to
the Seller because of such default and hereby declaring and
agreeing that the sum so retained is and represents the
reasonable damages of Seller); (c) in full settlement of any
claims of damages and in lieu of specific performance by Seller
against Purchaser; and (d) in consideration for the fall and
absolute release of Purchaser by Seller of any and all further
obligations under this Agreement. The remedy of Seller for
default by Purchaser hereunder shall be limited solely to the
retention of the then-paid Deposit as described above. In the
event Purchaser defaults hereunder the Purchaser shall forthwith
on demand by Seller return to Seller all title papers and other
documents relating to the Property, including Purchaser's copy of
this Agreement and thereupon, all rights of the parties hereto
and hereunder shall end.
8.4 Attorney's Fees, etc. Should either party employ an
attorney or attorneys to enforce any of the provisions hereof, or
to protect its interest in any matter arising under this
Agreement or to recover damages for the breach of this Agreement,
the party prevailing shall be entitled to recover from the other
party all reasonable costs, charges and expenses, including
attorney's fees, expended or incurred in connection therewith,
including all appeals.
9. OTHER CONTRACTUAL PROVISIONS.
9.1 Brokerage Commissions. The licensee(s) and brokerage(s)
named as follows are collectively referred to as "Broker," Seller
and Purchaser acknowledge that the brokerage(s) named as follows
are the procuring cause of this transaction. Seller and
Purchaser direct closing agent to disburse brokerage fees at
closing as follows: 3% of the gross sales price to PRIMERICA
GROUP ONE, INC.; and 3% of the gross sales price to USA
REALESTATE, INC.
9.2 Assignability. Purchaser shall have the absolute right
and authority to assign this Agreement and all of its rights
hereunder to any person, firm, corporation or other entity,
subject to Seller's consent only if the assignment is to an
entity not owned controlled by Purchaser, such consent not be
unreasonably withheld, and any such assignee shall be entitled to
all of the rights and powers of Purchaser hereunder. Upon any
such assignment, such assignee shall succeed to all of the rights
and obligations of the assignor hereof and shall, for all
purposes hereof, be substituted as and be deemed the Purchaser.
Upon any such assignment, Seller agrees that Purchaser shall be
released and relieved of any liability hereunder.
9.3 Risk of Loss by Condemnation.
(a) All risk of condemnation prior to the Closing
shall be on Seller. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the
Property, or any portion thereof (including negotiations in lieu
of condemnation), Seller will notify Purchaser of the pendency of
such proceedings. Purchaser may, at its sole option, participate
in any such negotiations and proceedings, and Seller shall from
time to time deliver to Purchaser all instruments requested by it
to permit such participation. Seller shall, at Seller's expense,
diligently prosecute any such proceeding, and shall consult with
Purchaser, its attorneys and experts and cooperate with them in
any defense of any such proceedings.
(b) If, after the Effective Date hereof and prior to
the Closing, all or a part of the Property is subjected to a bona
fide threat of condemnation by a body having the power of eminent
domain or is taken by eminent domain or condemnation (or sale in
lieu thereof), Purchaser may, be written notice to Seller, elect
to cancel this Agreement prior to the Closing hereunder, in which
event both parties shall be relieved and released of and from any
further liability hereunder, and the Deposit made by Purchaser
hereunder shall forthwith be returned to Purchaser, and thereupon
this Agreement shall become null and void and be considered
canceled. If no such election is made, this Agreement shall
remain in full force and effect and the purchase contemplated
herein, less any interest taken by eminent domain or
condemnation, shall be effected with no further adjustment, and,
upon Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title and interest of Seller in and
to any awards that have been or that may thereafter be made for
such taking.
9.4 Mandatory Radon Disclosure. Florida Statutes, Section
404.056(6) requires the following language on at least one
document executed prior to or simultaneously with this contract:
"Radon is a naturally occurring radioactive gas that, when it is
accumulated in a building in a sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels
of radon that exceed federal and state guidelines have been found
in buildings in Florida. Additional information regarding radon
and radon testing may be obtained from your county public health
unit."
9.5 Notices. Any notice to be given or to be served upon
any party hereto, in connection with this Agreement must be in
writing, and may be given by certified mail, return receipt
requested, with postage prepaid, and shall be deemed to have been
given and received when a certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in
the United States Mail; and, if given otherwise than by certified
mail, it shall be deemed to have been given when delivered to and
received by the party to whom it is addressed. Such notices
shall be given to the parties hereto at the following addresses:
FOR PURCHASER FOR SELLER
- ------------- ----------
MANASOTA GROUP, INC WDO VENTURE
2108 WHITFIELD PARK LOOP 9261 LAZY LANE
SARASOTA, FLORIDA 34243 TAMPA, FLA. 33614
ATTN: RICHARD L. TEADINSKI
WITH COPY TO: WITH COPY TO:
JOHN V. QURNLAN, ESQ. SAM REIBER, ESQ.
P.O. BOX 551 601 E. TWIGGS
BRADENTON, FL 34206 TAMPA, FL 33602
Any party hereto may, at any time by giving five (5) days'
written notice to the other party hereto, designate any other
address in substitution of the foregoing address to which such
notices hereunder shall be sent.
9.6 Entire Agreement; Modification. This Agreement
embodies and constitutes the entire understanding between the
parties with respect to the transaction contemplated herein. All
prior or contemporaneous agreements, understandings,
representations, and statements, oral or written, are merged into
this Agreement. Neither this Agreement nor any provision hereof
may be waived, modified, amended, discharged, or terminated
except by an instrument in writing signed by the party against
which the enforcement of such waiver, modification, amendment,
discharge or termination is sought, and then only to the extent
set forth in such instrument.
9.7 Applicable Law and Venue. This Agreement shall be
governed by, and construed in accordance with the laws of the
state in which the Property is located. Each party hereto agrees
to submit to the personal jurisdiction and venue of the state and
federal courts located closest in distance to the Property, for a
resolution of all disputes arising in connection with the terms
and provisions of this Agreement.
9.8 Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction
of any provision of this Agreement.
9.9 Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
heirs, personal representatives, successors and assigns.
9.10 Counterparts. This Agreement may be executed in
several counterparts, each constituting a duplicate original, but
all such counterparts constituting one and the same Agreement.
9.11 Time. Time is of the essence of this Agreement.
9.12 Interpretation. Whenever the context hereof shall so
require, the singular shall include the plural, the male gender
shall include the female gender and the neuter, and vice versa.
This Agreement has been negotiated at arm's length and between
persons sophisticated and knowledgeable in business and real
estate matters. Accordingly, any rule of law or legal decision
that would require interpretation of this Agreement against the
party that has drafted it is not applicable and is waived. The
provisions of this Agreement shall be interpreted in a reasonable
manner to effect the purposes of the parties and this Agreement.
9.13 Severability. In case any one or more of the
provisions contained in this Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as
if such invalid, illegal or unenforceable provisions had never
been contained herein.
9.14 Escrow Agent.
(1) Escrow Agent shall rely upon and shall be
protected in acting or refraining from acting upon any oral
notice, instruction or request furnished hereunder and believed
by it to be genuine.
(2) Escrow Agent undertakes to perform only such
duties as are expressly set forth herein and shall not be bound
in any way by any other agreement to the parties hereto.
(3) The parties hereto agree that Escrow Agent shall
not be liable to any of them for any matter or other thing
arising out of the performance by Escrow Agent of its obligations
hereunder except for acts or omissions resulting from Escrow
Agent's gross negligence or willful misfeasance.
(4) In the event Escrow Agent shall receive contrary
instructions hereunder, or there shall be any dispute between the
parties hereto as to the satisfaction of the conditions or there
shall be uncertainty as to the meaning or applicability of any
notice or provision hereof, then Escrow Agent shall, at its
option, either retain the funds placed in escrow hereunder
pending resolution of such dispute or clarification or deposit
the sale funds in the appropriate Court and upon making such
deposit, Escrow Agent shall thereupon be released from all
further obligations hereunder.
(5) The parties hereto jointly and severally agree to
indemnify and hold Escrow Agent harmless from and against any and
all costs, claims or damages against, arising out of or in
connection with this Agreement or Escrow Agent's actions or
failure to act hereunder, including without limitation the costs
and expenses (including reasonable attorneys fees) of defending
itself against the claims of liability hereunder excepting,
however, all costs, claims or damages arising out of gross
negligence or willful misfeasance by Escrow Agent.
(6) Seller and Purchaser acknowledge and agree that
the Escrow Agent is the law firm representing the Seller in the
subject transaction and in other matters from time to time and
further agree that such law firm may continue or undertake such
representations on behalf of such party in this transaction or in
any other matters whatsoever, including but not limited to, any
litigation between the parties relating to this Agreement or this
transaction.
9.15 Execution Date. This Agreement shall be of no force
and effect unless by Seller and Purchaser on or before September
30, 1998.
IN WITNESS VAMREOF, the parties hereto have executed this
Agreement as of the day and year first above, written; provided,
however, that for the purpose of determining "the Effective Date"
as used in this Agreement, such date shall be the last date any
of the parties hereto executes this Agreement.
WITNESSES AS TO PURCHASER: PURCHASER:
MANASOTA GROUP, INC.
/S/ illegible By: /S/ Charles S. Conoley
- ----------------------- -------------------------
Charles S. Conoley,
President
Taxpayer ID No.
------------
/S/ illegible Date of Execution: 9/30/98
- -----------------------
WITNESSES AS TO SELLER: SELLER:
WDO VENTURE, a
Florida limited
Partnership by
Primerica Developments,
Inc. a Florida
Corporation, as its
General Partner
/S/ Sam Reiber By:
- -------------------------- ----------------------
----------------------
Taxpayer ID No.
-------------
/S/ Brenda L. Burgess DATE OF EXECUTION: 9/29/98
- ----------------------
Attachment - Plat of property with following legal description:
PARCEL A (Outparcel)
AS A POINT OF REFERENCE COMMENCE AT THE NORTHEAST CORNER OF THE
EAST 1/2 OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4 OF THE
NORTHEAST 1/4 OF SECTION 13, TOWNSHIP 35 SOUTH, RANGE 17 EAST,
MANATEE COUNTY, FLORIDA; THENCE RUN ALONG THE NORTH BOUNDARY OF
SAID NORTHEAST 1/4 OF SAID SECTION 13, NORTH 89 deg. 26' 35"
WEST, A DISTANCE OF 73.00 FEET TO THE INTERSECTION OF THE
WESTERLY BOUNDARY OF HEATHERWOOD CONDOMINIUMS, PHASE 1, AS
RECORDED IN CONDOMINIUM PLAT BOOK 17, PAGE 15 OF THE PUBLIC
RECORDS OF MANATEE COUNTY, FLORIDA; THENCE SOUTH 00 deg.20' 48"
WEST ALONG THE SAID BOUNDARY, A DISTANCE OF 40.88 FEET TO THE
SOUTHERLY RIGHT OR WAY LINE OF 53RD AVENUE EAST AND A POINT ON A
CURVE; THENCE ALONG THE ARC OF SAID CURVE BEING THE SOUTHERLY
RIGHT OF WAY LINE OF 53RD AVENUE, CONCAVE TO THE NORTH HAVING A
RADIUS OF 24773.99 FEET, SUBTENDED BY A CHORD AND CHORD BEARING
OF 399.72 FEET, NORTH 89 deg. 54' 21" WEST, A DISTANCE OF 399.72
FEET TO THE POINT OF BEGINNING; THENCE DEPARTING SAID SOUTHERLY
RIGHT OR WAY, SOUTH 00 deg. 09' 45" WEST, A DISTANCE OF 300.78
FEET; THENCE NORTH 98 deg. 48' 56" WEST, A DISTANCE OF 152.98
FEET TO THE EASTERLY RIGHT OF WAY LINE OF 9TH STREET EAST, THENCE
ALONG SAID RIGHT OR WAY, SAID LINE BEING 40.00 FEET EAST OF AND
PARALLEL TO THE WEST BOUNDARY OF THE NORTHEAST 1/4 OF SAID
SECTION 13; THENCE NORTH 00 deg. 11' 04" EAST, A DISTANCE OF
70.88 FEET TO THE SOUTH BOUNDARY OF 53RD AVENUE RIGHT OF WAY AS
RECORDED IN OFFICIAL RECORD BOOK 1176, PAGE 1912; THENCE SOUTH 89
deg. 24' 33" EAST, A DISTANCE OF 2.01 FEET; THENCE NORTH 00 deg.
09' 45" EAST ALONG SAID RIGHT OF WAY, A DISTANCE OF 209.00 FEET;
THENCE NORTH 45 deg. 30' 59" EAST, A DISTANCE OF 31.41 FEET TO
THE CUSP OF A CURVE, SAID CURVE BEING THE SOUTHERLY RIGHT OF WAY
LINE OF 53RD AVENUE EAST, SAID RIGHT OF WAY LINE BEING 42.00 FEET
SOUTH OF AND PARALLEL TO THE CENTER LINE OF SAID 53RD AVENUE EAST
AS SHOWN ON THE FLORIDA DEPARTMENT OF TRANSPORTATION RIGHT-OF-WAY
MAPS OF THE 53RD AVENUE EXTENSION; THENCE ALONG THE ARC OF SAID
CURVE CONCAVE TO THE NORTH A DISTANCE OF 128.60 FEET, HAVING A
RADIUS OF 24,773.99 FEET, A CENTRAL ANGLE 00 deg. 17' 51",
SUBTENDED BY A CHORD OF 128.60 AND A CHORD BEARING OF SOUTH 89
deg. 17' 42" EAST TO THE POINT OF BEGINNING. SUBJECT TO
ADDITIONAL RIGHT OR WAY FOR 9TH STREET EST ON THE WEST SIDE
THEREOF AND FOR 53RD AVENUE EAST ON THE NORTH SIDE THEREOF.
EXHIBIT "A"
-----------
Property Legal Description
EXHIBIT "B"
-----------
Permitted Exceptions
- -----------
EXHIBIT 6.4
- -----------
Richard Bennett
2823 US Hwy 301 N.
Suite 1
Ellenton, FL. 34222
941 722-6678
By this indenture of lease, dated October 8, 1998, Richard C.
Bennett, herein called Lessor, leases to Manasota Group, Inc.,
herein called Lessee, the premises shown on the attached plan,
Exhibit A, for use as offices, for a term of one (1) year(s),
commencing on October 8, 1998 and expiring on October 7, 1999, at
an annual rental rate of $5,400.00, payable in monthly
installments of $450.00 plus tax.
1 Payments will be due and payable to Richard Bennett at 2823 U
S Hwy. 301 North, Suite One, Ellenton, Fl. 34222.
2) Payment will be $1,413.00 upon execution of this lease, which
shall constitute the first and last month's rent, tax, plus
$450.00 Security Deposit. Additional monthly payments of $450.00
plus tax are due on the first day of each month thereafter. Any
payment not received on or before the 10th day of the month in
which it is due will be charged a 5% late fee. Any Florida State
sales tax or federal taxes are the responsibility of the Lessee.
3) So long as Lessee performs its obligations, Lessor covenants
to Lessee its quiet and peaceful possessions of the leased space
and the right to use the same free from interference from other
tenants in the same building or center.
4) Lessee agrees as follows: (a) to pay rent as due and to
deliver possession of the premises to the Lessor upon termination
of this lease in the same condition as received, ordinary wear
and tear expected: (b) to use the premises in a quiet and orderly
fashion without disturbance to other tenants in the building, and
not to suffer or permit any violations of laws or ordinances
therein: (c) assign or sublet without prior written consent of
lessor, which lessor agrees will not be unreasonably withheld in
the case of a proper assignee with good references.
5) Lessor may terminate this lease and enter and take possession
of the premises from the Lessee, all without waiving any rights
which it may have at law hereunder, without further notice or
demand (all such notices and demands hereby be waived) following
any of these events:
a. That Lessee should fail to pay rent due hereunder within
30 days following written notice of default therein.
b. That Lessee shall fail to commence curing any other
violation of its covenants contained in this lease or any
amendments hereto, within 30 days after written notice thereof,
or, having commenced to cure the same as aforesaid, should fail
to carry the same to conclusion with due diligence.
c. Upon the adjudication of Lessee as bankrupt or the
appointment of a receiver of its property-
6) If the premises or any building of which the premises is a
part or any portion thereof, are made untenantable by fire, the
elements or other casualty, rent for the entire premises or
affected portion there of shall abate from the date of such
casualty to restoration of tenantability. Lessor shall restore
the same with all reasonable speed, and if Lessor does not
restore the premises or the affected portion to tenantability
within sixty days thereafter, Lessee may then terminate this
lease, retroactive to the date of casualty. If the premises are
more than fifty percent destroyed by such casualty, either Lessor
or Lessee may terminate this lease, retroactive to such date, by
written notice thirty days thereafter, failing such notice,
Lessor shall restore the premises to tenantability within ninety
days of such casualty and rent shall abate from the date of
casualty.
7) Lessee agrees to provide normal maintenance to the interior
of the leased premises. Lessor shall provide water and garbage
pick up. The Lessee will contact Florida Power and Light Co. and
have meter "C " transferred to Lessee.
8) Lessor has the right upon reasonable notice to enter the
premises for reasonable inspections, and to show the same to
prospective tenants.
9) Unless caused by the negligence or willful act of lessor or
its agents or employees, Lessee waives all claims against Lessor
for any and all damages to the property of Lessee, or from any
act or neglect of any other tenant or occupant or any accident or
theft in or about building.
1O) Subject only to Lessee's liability to repair damage caused
by negligence of lessee or the negligence of its agents,
employees, or occupants, Lessor shall at its expense maintain and
keep in repair the exterior of the building and leased premises
including parking lots, driveways and all structural parts,
fixtures, water pipes, etc., except only those installations, if
any, provided by Lessee.
11) Lessor will not unreasonably withhold consent to Lessee's
erection of signs as are reasonably necessary to Lessee's
business and are in keeping with the standards maintained in the
building. It shall be solely, the Lessee's responsibility to
secure any sign permits from the county if such is required.
12) Lessee, its employees, customer and visitors shall have the
right to use such parking facilities as may adjoin or be
available to the building. Parking spaces shall be limited to a
Pro Rata share of the total number of spaces available.
13) Lessee may install interior petitions at his own expense and
solely responsible for obtaining all necessary county approvals.
Lessee agrees to carry liability insurance of at least $300,000.
With the Lessor as an additional insured. At the expiration of
this lease, the Lessee agrees to either leave the petitions or
remove and restore the premises to its original condition, at the
option of the Lessor.
14) The Lessee may terminate this lease at the end of the ninth
month by providing 30 days Written Notice to the Lessor
15) If Lessee shall remain in the demised premises after the
expiration of this lease without having executed an extension of
this lease or a new written lease, the Lessor shall have the
option to treat Lessee either:
a) As one not lawfully entitled to possession of the
premises, and shall thereupon be entitled to take lawful action
for Lessee's immediate removal therefrom, or
b) As a tenant for the next ensuing calendar month and for
each separate ensuing calendar month thereafter, in which case
said tenancy may be terminated by either Lessor or Lessee as of
the end of any calendar month upon thirty days prior written
notice, and Lessee shall pay monthly rent at the rate herein
specified for each such month. No such holding over shall give
rise, whether by operation of law or otherwise, to any other term
or tenancy than that set forth in this paragraph.
The Schedule Referred To Above
------------------------------
(Floor plan of office space)
IN WITNESS WHEREOF, the parties have caused this lease to be
executed on the date first written above, hereby binding their
respective successors, assigns, heirs, executors and
administrators.
/S/ Tom Bennett /S/ Richard Bennett
- ------------------------- ---------------------
WITNESS LESSOR, RICHARD BENNETT
/S/ Tom Bennett /S/ Charles S. Conoley
- ------------------------ ---------------------
WITNESS LESSEE, PRESIDENT
(no signature)
-----------------------
grantor
- -----------
EXHIBIT 6.5
- -----------
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 28th
day of October, 1998, by and among Horizon Bancorporation, Inc.,
a Florida corporation ("Holding Company"), Horizon Bank (in
formation), a Florida state bank ("Bank") and Charles S. Conoley,
an individual resident of Manatee County, Florida ("Employee")
RECITALS:
A. The Holding Company and its shareholders have filed an
application with the Division of Banking of the Department of
Banking and Finance of the State of Florida for approval of a
charter for Bank as a de novo Florida state bank;
B. It is contemplated that the Holding Company will undertake
a public offering ("the "Offering") of its common stock for the
purpose of using proceeds of the Offering to capitalize Bank;
C. Bank and Holding Company wish to employ Employee,
effective as of the successful completion of the Offering (as
hereinafter defined), as the President and Chief Executive
Officer of Bank and Holding Company; and
D. The parties hereto desire to set forth the terms and
conditions of the employment relationship between Bank and
Holding Company and Employee.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein the parties agree as follows:
A. Duties.
------
1. Bank and Holding Company each hereby employ Employee as
President and Chief Executive Officer, to hold the title of
President and Chief Executive Officer, and to perform such
services and duties as the Board of Directors may, from time to
time, designate during the term hereof. Subject to the terms and
conditions hereof, Employee will perform such duties and exercise
such authority as are customarily performed and exercised by
persons holding such offices, subject to the general direction of
the Board of Directors of each of Bank and Holding Company,
exercised in good faith and in accordance with standards of
reasonable business judgment.
2. Employee shall serve on the Board of Directors of Bank
and Holding Company and shall be entitled to compensation paid to
the other directors, except for fees paid to directors for
attending meetings.
3. Employee hereby accepts such employment and, during the
term hereof, shall devote his full time, attention and efforts to
the performance of his duties as aforesaid and shall not engage
in any activity which may in any way be in competition with
Bank's business.
B. Term.
----
1. The initial term of employment under this Agreement shall
commence on the date of termination of that certain consulting
agreement between Holding Company and Employee dated June 8, 1998
(the "Consulting Agreement") and shall continue until December
31, 2004, unless terminated earlier pursuant to the terms hereof.
If, however, upon termination of the Consulting Agreement the
Bank has not opened for business, Employee's compensation and
terms of employment shall be governed according to the terms of
the Consulting Agreement as though such Consulting Agreement were
still in effect until such time as the Bank does open for
business. From the date the Bank opens for business forward,
Employee's employment shall be governed by the terms of this
Agreement. Notwithstanding the foregoing, if the Bank has not
opened for business by December 31, 1999, both the Consulting
Agreement and this Agreement shall be considered null and void.
2. Employment of Employee hereunder may be terminated by
Bank upon the occurrence of any of the following events:
a. The death of Employee;
b. The complete disability of Employee, where "complete
disability" means the inability of Employee, due to illness,
accident, or other physical or mental incapacity to perform the
services provided for hereunder for an aggregate of ninety (90)
days within any period of one hundred eighty (180) consecutive
days during the term hereof; or
c. The discharge of Employee by the Bank for cause,
where "cause" means:
i. Employee having committed an act or engaged in
conduct which the Board of Directors considers to be
inappropriate;
ii. Such gross negligence or intentional
misconduct as shall constitute, as a matter of law, a breach of
the covenants and obligations of Employee hereunder;
iii. Repeated failure or refusal by Employee to
comply with directives of the Board of Directors made in good
faith and in accordance with the provisions of this Agreement; or
iv. Failure by Bank, as determined by a vote of
two-thirds (2/3) of the members of the Board of Directors, to
perform at acceptable levels of profitability and growth.
Termination of employment by Bank shall constitute a tender
by Employee of his resignation as an officer and director of Bank
and Holding Company. Employees' rights and obligations in the
event of termination shall be as set forth in Paragraph E hereof.
C. Salary and Fringe Benefits.
--------------------------
1. For each of the partial year ending December 31, 1999 and
calendar years 2000 and 2001, Bank shall pay Employee an annual
salary as fixed for each year by the Board of Directors, but
which shall not be less than $96,000, payable in equal monthly
installments thereafter. Employee's annual salary shall be as
fixed by the Board of Directors for each year, but which shall
not be less than his annual salary for the previous year
multiplied by 100% plus the percentage point increase in the
Consumer Price Index (as commonly determined) by comparing the
December of the prior year to December of the year before the
prior year.
2. Employee shall be entitled to participate in any and all
plans of Bank relating to profit sharing, group life insurance,
medical coverage, retirement or other employee benefit plans that
Bank or Holding Company may adopt for the benefit of its
employees. Unless otherwise available under a plan maintained for
all employees, Bank shall provide Employee with reasonable
disability insurance.
3. Employee shall be furnished the free use of a late-model,
four-door sedan or sports utility vehicle and shall be entitled
to a reasonable expense account (to include monthly country club
dues and dues related to one civic/lunch club membership), the
payment of reasonable expenses for attending annual and periodic
meetings of trade associations, the payment of premiums with
respect to a $250,000 term life insurance policy on his life (the
beneficiaries of which are Employee's family), and any other
benefits which are commensurate with Employee's position and
responsibilities and functions to be performed by Employee under
this Agreement
4. At such reasonable times as the Board of Directors shall
in its discretion permit, Employee shall be entitled, without
loss of pay, to absent himself voluntarily from the performance
of his employment under this Agreement, all such voluntary
absences to count as vacation time. In this connection, Employee
shall be entitled to an annual vacation: for the partial year
ending December 31, 1999 - two (2) weeks, for the calendar year
2000 - three (3) weeks, and thereafter - 4 (four) weeks per year
and shall schedule at least two consecutive weeks of vacation
each year. Employee shall not be entitled to receive any
additional compensation from Bank on account of his failure to
take a vacation; nor shall he be entitled to accumulate unused
vacation time from one year to the next.
D. Performance Bonuses and Stock Options.
-------------------------------------
1. As long as Bank and Holding Company maintain either a
CAMEL 1 or CAMEL 2 rating, for the fiscal year ending December
31, 1999 and for each calendar year thereafter during the term of
this Agreement, Employee shall be entitled to receive a cash
bonus not to exceed fifty percent (50%) of the annual salary in
effect for such year computed as follows:
a. For the partial year ending December 31, 1999, in an
amount determined by the Board of Directors in its sole
discretion, but not to exceed $10,000, payable on or before March
31, 2000.
b. For each calendar year thereafter (2000-2004), an
amount determined as a function of Bank meting or exceeding goals
established jointly by Employee and the Board of Directors before
the beginning of such year for such year with respect to a mix of
criteria consisting of (i) asset group, (ii) return on assets,
(iii) return on equity, (iv) loan loss and (v) delinquencies, all
in accordance with the following schedule:
Bonus Amount Degree of Meeting or Exceeding Goal
- ------------ --------------------------------
10% of Annual Salary Meeting or exceeding goals by
at least 10%
20% of Annual Salary Exceeding goals by 10%-19.99%
30% of Annual Salary Exceeding goals by 20%-29.99%
40% of Annual Salary Exceeding goals by 30%-39.99%
50% of Annual Salary Exceeding goals by 40% or more.
The bonus payable under this Paragraph D.1.b. shall be paid
in quarterly installments, during the year on the basis of
results achieved during the prior quarter, with the final amount
due for the year determined and paid (or refunded) on or before
March 31 of the succeeding year. The relative weight accorded
each of the criteria in determining the mix shall be fixed
jointly by Employee and Board of Directors for each year and may
vary from year to year.
It is agreed and understood that no bonus shall be paid to
Employee for a particular calendar year if at any time during
such year Bank and Holding Company receive other than a CAMEL 1
or CAMEL 2 rating as a result of an examination by a relevant
regulatory authority.
2. Employee shall be granted options to purchase shares of
common stock of Holding Company, as follows:
Date of Grant: On the commencement date of
this Agreement
Number of Shares: 3% of the total number of
shares sold in the Offering
(the "Total Number of
Shares")
Exercise Price and Period: $5.00 per share; 10 years
from date of grant
Regular Vesting Schedule: .60% of the Total Number of
Shares on each of December
31, 1999, 2000, 2001, 2002
and 2003
ISO's or Non-qualifying
Stock Options: To be determined jointly by
Employee and Board of
Directors of Holding
Company
E. Post-Termination Matters.
------------------------
1. Upon termination of employment hereunder for any reason,
Employee shall not become engaged, in any capacity whatsoever, in
the commercial banking business within Manatee County for a
period of one (1) year. Consistent therewith, during such year,
Employee shall not:
a. Furnish anyone with the name of any customer of the
Bank;
b. Solicit the commercial banking business of, directly
or indirectly, any customer of Bank;
c. Furnish, use, or divulge to anyone any information
acquired by him from Bank relating to Bank's methods of doing
business; or
d. Cause, directly or indirectly, any employee of Bank
to leave his or her employment to work in the commercial banking
business.
2. Upon termination of employment hereunder by operation of
Paragraphs B.2a. or B.2b hereof, (a) Employee (or his estate)
shall be entitled to a severance payment equal to the annual
salary and bonus, if any, that would have been due Employee for
the six (6) full months following the date of termination,
computed on the basis of salary and bonus, if any, in effect for
the year in which such termination occurs, such severance payment
payable in equal installments over such six (6) full month period
and (b) all stock options granted Employee pursuant to Paragraph
D.2. hereof not then yet vested shall vest on the date of such
termination.
F. Change of Control.
-----------------
1. In addition to any severance payments otherwise due
Employee hereunder, if, during the term of this Agreement, there
occurs a change of control (as hereinafter defined) of Bank, then
a. If the change of control was opposed by Bank's or
Holding Company's Board of Directors and Employee's employment is
terminated for whatever reason during the two-year period
succeeding the date of change of control (including by way or
voluntary termination), Bank shall pay Employee (or his estate) a
lump sum severance payment equal to twice his highest annual
salary in any of the three (3) full calendar years preceding such
termination; but,
b. If the change of control was not opposed by Bank's or
Holding Company's Board of Directors and Employee's employment is
terminated during the two-year period succeeding the date of the
change of control, other than for cause (as defined herein), Bank
shall pay Employee (or his estate) a lump sum severance payment
equal to one-time his highest annual salary in any of the three
(3) full calendar years preceding such termination.
2. In addition, upon the occurrence of any change of
control, all stock options granted Employee pursuant to Paragraph
D.2. hereof not yet vested shall vest on the date of occurrence
of such change of control.
3. For purposes hereof, "change of control" means (a) the
acquisition of 25% or more of the voting securities of Holding
Company or Bank by any person or persons acting as a group within
the meaning of Section 13(d) of the Securities Exchange Act of
1934, or (b) the acquisition of a percentage of voting securities
of Holding Company or Bank between 10% and 25% if the Board of
Directors of Holding Company or Bank, or any regulatory
authority, has made a determination that such acquisition
constitutes a change of control.
G. Waiver of Provisions.
--------------------
Failure of any of the parties to insist, in one or more
instances, on performance by the others in strict accordance with
the terms and conditions of this Agreement shall not be deemed a
waiver or relinquishment of any right granted hereunder to insist
on the future performance of any such term or condition, or of
any other term or condition of this Agreement, unless such waiver
is contained in a writing signed by or on behalf of all the
parties.
H. Governing Law.
-------------
This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Florida. If
for any reason any provision of this Agreement shall be held by a
court of competent jurisdiction to be void or unenforceable, the
same shall not affect the remaining provisions thereof.
I. Modification and Amendment.
--------------------------
This Agreement contains the sole and entire agreement among
the parties hereto and supersedes all prior discussions and
agreements among the parties, and any such prior agreements
shall, from and after the date hereof, be null and void. This
Agreement shall not be modified or amended except by an
instrument in writing signed by or on behalf of the parties
hereto.
J. Counterparts.
------------
This Agreement may be executed simultaneously in any number
of counterparts, each of which shall be deemed an original but
all of which shall constitute one and the same instrument.
K. Agreement Nonassignable.
-----------------------
This Agreement may not be assigned or transferred by any
party hereto, in whole or in part, without the prior written
consent of the others.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the year and date first above written.
"Employee" "Holding Company"
Horizon Bancorporation, Inc.
/S/ Charles S. Conoley By: /S/ David K. Scherer
- ------------------------ ------------------------
Charles S. Conoley David K. Scherer
/S/ MaryAnn P. Turner
------------------------
MaryAnn P. Turner
Authorized Agents
"Bank (in formation)"
By: /S/ David K. Scherer
------------------------
David K. Scherer
/S/ MaryAnn P. Turner
------------------------
MaryAnn P. Turner
Authorized Agents
- -----------
EXHIBIT 6.6
- -----------
STOCK REDEMPTION AGREEMENT
This Agreement is made this 28th day of October, 1998, by
and among Charles S. Conoley, M. Shannon Glasgow, Bruce R.
Woodruff, Stephen C. Mullen, Bruce E. Shackleford, Warren E.
Gagner, David K. Scherer, MaryAnn P. Turner and Clarence R. Urban
(hereinafter collectively the "Shareholders").
(A) In connection with the Company's organization and
preparations for an initial public offering of the Company's
common stock, the Shareholders have purchased, collectively
21,600 shares of the Company's Stock (the "Organizational
Shares").
(B) In anticipation of the public offering of the Company's
common stock the Shareholders and the Company desire to provide
for the mandatory redemption of the Organizational Shares upon
the successful completion of the public offering.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and restrictions set forth herein, the parties hereto
agree as follows:
1. Redemption of Shares. Following successful completion of
the public offering, and as soon as practicable after the
Offering proceeds have been released from escrow to the Company,
the Company shall purchase and the Shareholders shall sell all
Organizational Shares then issued and outstanding.
2. Redemption Price. The price to be paid by the Company
for redemption of the Organizational Shares shall be the original
purchase price of $5.00 per share.
3. Binding Obligation. The Company's obligation to purchase
and the Shareholder's obligation to sell shall be mutually
binding obligations subject only to the condition that the public
offering be successfully completed and that the Offering proceeds
are released from escrow to the Company on an unrestricted basis.
The above obligations shall also bind the parties' heirs,
successors and assigns.
4. Entire Agreement. This Agreement supercedes all
Agreements previously made between the parties with respect to
the subject matter hereof. There are no other Agreements, oral or
written, between the Parties concerning the subject matter
hereof.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed as of the 28th day of October, 1998.
COMPANY:
HORIZON BANCORPORATION, INC.
By:
------------------------------
Charles S. Conoley, President
(Signatures continued on next page)
SHAREHOLDERS:
- ------------------------- --------------------
Charles S. Conoley Warren E. Gagner
- ------------------------- --------------------
M. Shannon Glasgow Stephen C. Mullen
- ------------------------- --------------------
David K. Scherer Bruce E. Shackleford
- ------------------------- --------------------
Mary Ann P. Turner Charles R. Urban
- -------------------------
Bruce R. Woodruff
- -----------
EXHIBIT 6.7
- -----------
SunTrust Bank, Central Florida, N.A.
Financial Institutions Group
Mail Code 0-2068
200 S. Orange Avenue
Orlando, FL 32801
Fax (407) 237-6897
- ----------------------------------------------------
SunTrust
November 2, 1998
Charles S. Conoley, President
Horizon Bancorporation, Inc.
P.O. Box 14684
Bradenton, Fl, 34280
RE: Letter of Commitment
Dear Charlie,
SunTrust Bank, Central Florida, N.A. (Hereinafter 'Lender'), is
pleased to offer this nonassignable commitment. This commitment
is based upon the accuracy of all facts, statements, financial
and other information provided by Borrower to Lender as part of
the loan request. This commitment to lend is further conditioned
upon the terms outlined below and is subject to execution and
delivery of all documents (Loan Documents) required by Lender in
connection with closing the loan described herein.
While this commitment generally sets forth the provisions, terms,
and conditions of the Loan, it is not all inclusive and any
additional specific provisions, terms and conditions will be
documented to Lender's satisfaction in the form of the required
Loan Documents.
BORROWER: Horizon Bancorporation, Inc.
- ---------
GUARANTORS: Charles S. Conoley
- ----------- Michael S. Glasgow
Stephen C. Mullen
David K. Scherer
Bruce E. Shackelford
Mary Ann P. Turner
Bruce R. Woodruff
Clarence R. Urban
Guarantee on a 125% prorata
basis.
LOAN AMOUNT: $300,000
- ------------
PURPOSE: To provide funding for
- -------- organizational expenses
incurred during the formation
of the bank.
TERMS: One year non-revolving lines of
- ------ credit with interest payable
monthly and principal due at
maturity.
COLLATERAL: UCC filings on all furniture,
- ----------- fixtures and equipment as well as
leasehold improvements.
PRICING: Prime - 1%.
- --------
FEES: $125.00
- -----
By acceptance of this commitment, the Borrower agrees to pay
any out-of-pocket expenses incurred by the Bank in connection
with the underwriting of or incidental to the loan, including
applicable documentary stamp (if any) and intangible tax (if
any), recording/filing fees, lien and financing statement search
fees, and all fees and expenses of the Bank's Counsel, and in
each instance whether or not the Loan is closed or the proceeds
disbursed thereunder. No prepayment penalty will be assessed if
the loan is satisfied prior to the Maturity Date.
Borrower will be required to execute Promissory Notes, Security
Agreements, and all other documentation required at the sole
discretion of SunTrust Bank, in a form and substance acceptable
to SunTrust Bank.
Thank you for allowing SunTrust Bank to service your financial
needs. Please do not hesitate to call me at (800) 432-4760 Ext.
6741 if you have any questions or if I can be of additional
assistance.
Sincerely,
/S/ Kathy S. Petrone
Kathy S .Petrone
Corporate Banking Officer
Sun Trust Bank, Central Florida, National Association
The undersigned hereby accepts this Commitment on this 5th day of
November, 1998:
BORROWER:
Horizon Bancorporation, Inc.
By: /S/ Charles S. Conoley
-------------------------------
Charles S. Conoley, President
- ---------
EXHIBIT 9
- ---------
ESCROW AGREEMENT
This ESCROW AGREEMENT effective as of the 30th day of October,
1998 by and among,
Horizon Bancorporation, Inc., located at Suite C, 3005-26th
Street, West, Bradenton, Florida 34205 (hereinafter referred to
as the "Issuer")
and
SunTrust Bank, Central Florida, National Association, located at
225 East Robinson Street Suite 250, Orlando, Florida 32801
(hereinafter referred to as the "Escrow Agent')
WITNESSETH:
WHEREAS, the Issuer intends to offer and sell to various
investors (the "Subscribers") no less 1,050,000 shares and no
more than 1,500,000 shares of its capital stock, par value .01
per share (the "Capital Stock"), at a subscription price of $5.00
per share pursuant to an offering to the public (the "Offering"),
and
WHEREAS, the Issuer must sell at least 1,050,000 shares
("Required Offering") of Capital Stock on or before the date
stipulated in Addendum A attached hereto ("Required Offering
Deadline"); and
WHEREAS, the release of the subscription funds to the Issuer
is contingent Upon the grant of preliminary approval for the
requisite charter (the "Charter") from the Florida Department of
Banking and Finance (the "Florida Department") on or before the
Expiration Date (the "Expiration Date") set forth in the Offering
Circular of the Issuer relating to the Offering; and
WHEREAS, the parties hereto wish to agree among themselves
as to the treatment of all subscription proceeds which may be in
the form of checks, cashier's checks and/or money orders (the
"Proceeds"), along with properly executed subscription
agreements, from the Subscription pursuant to the Offering until
such time as the Charter is granted.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto agree as follows:
1. Creation of Escrow Agreement. Pursuant to the terms
and conditions of this Agreement, the parties do hereby agree
that the Escrow Agent shall act as escrow agent in regard to
Proceeds received from the Subscribers for the Capital Stock
pursuant to the Offering.
2. Deposit and Delivery of Proceeds and Subscription
Agreements. The Escrow Agent shall deposit and hold in escrow
under this Agreement all Proceeds received by the Issuer from the
Subscribers in regard to the purchase of the Capital Stock
pursuant to the Offering, The Escrow Agent shall have no
responsibility whatsoever in regard to Proceeds not received and
for funds that have not yet cleared and become good funds.
Subscribers shall make the payment for the capital Stock payable
to the Escrow Agent. In the event checks are made payable to the
Issuer, the Issuer shall promptly endorse said checks to the
order of the Escrow Agent. Simultaneously with the delivery of
the Proceeds, the Issuer shall deliver to the Escrow Agent the
Subscription Agreements and copies of the written acceptances for
which the Proceeds represent payments, The Escrow Agent shall
hold the Proceeds and Subscription Agreements pursuant to the
terms and conditions of this Agreement.
3. Partial Rejection of Subscription Agreements. Should
the Issuer elect to accept a subscription for less than the
number of shares shown in a Subscribers Subscription Agreement by
indicating such lesser number of shares on the written acceptance
of the Issuer transmitted with the Subscription Agreement and
payment therefore the Escrow Agent shall deposit such payment in
the escrow account and then remit within thirty (30) days to such
Subscriber at the address shown in his Subscription Agreement
that amount of his Proceeds in excess of the amount which
constitutes full payment for the number of subscribed shares
accepted by the Issuer as shown in the Banks written acceptance,
such amount to be remitted without interest or reduction.
4. Achievement or Failure to Achieve Required Offering.
The Escrow Agent shall notify the Issuer in writing at such time
as it has received Proceeds totaling at least $5,250,000
exclusive of those which have been rejected by the Issuer and
shall continue to receive and hold such funds until notified by
the Issuer to release the proceeds to the Issuer. If, on or
before the Expiration Date, the Escrow Agent shall not have
received Proceeds from the Subscribers for at least $5,250,000,
the Escrow Agent shall return to each Subscriber the appropriate
amount of the Proceeds (without interest or deduction) received
and collected from him hereunder.
5. Failure to Request Proceeds. If, by the close of
business on the Expiration Date, the Issuer shall not have,
delivered a written request to the Escrow Agent authorizing
release of the Proceeds, the Escrow Agent shall promptly return
to the Subscribers the Proceeds (without interest or deduction)
received and collected from them hereunder.
6. Request For Proceeds. Subject to provision of
paragraph 4, hereof, if the Issuer delivers a written request to
release Proceeds, the Escrow Agent shall, Within three (3) days
of receiving notification thereof from the Issuer, pay to the
Issuer all cleared proceeds then and thereafter received by it
(including any interest earned thereon) after deducting therefrom
the fees and costs of the Escrow Agent as set forth in Paragraph
1 5 hereof
7. Return of Proceeds to Subscribers. If instructed in
writing to do so by the Issuer the Escrow Agent agrees to return
to any Subscriber, whether his Subscription Agreement has been
accepted by the Issuer or not, Proceeds deposited pursuant to
this Agreement by the Subscriber. Written instruction by the
Issuer to return funds to a Subscriber must be received by the
Escrow Agent prior to the Escrow Agent's disbursement of Proceeds
pursuant to Paragraph 6 of this Agreement. The Escrow Agent, in
returning funds to the Subscribers hereunder, may rely on the
names and addresses furnished to the Escrow Agent by the Issuer
without the requirement of independent verification, All returns
and deliveries to a Subscriber under this Agreement shall be
mailed, by regular mail, to the residential or business address
of such Subscriber, appearing on his Subscription Agreement. Any
payment to a Subscriber will be made by check.
8. Investment of Proceeds by Escrow Agent. The Escrow
Agent shall, at the direction of the President of the Issuer,
invest the Proceeds in one or more mutual funds or a master
repurchase agreement comprised solely of investments in United
States government, United States government backed securities and
repurchase agreements collateralized by United States government
backed securities. Interest and other monies earned on said
investments shall accrue to the benefit of the Issuer; provided,
however, if the Required Offering is not obtained, interest and
other monies earned on said investments shall be paid to
Subscribers, with the Issuer remaining obligated to pay the fees
of the Escrow Agent. The Escrow Agent shall advise the Issuer as
to the form of investments into which the Proceeds have been
placed, and furnish to the Issuer periodic, and final reports. of
said investments. The Escrow Agent shall have no liability or
obligation whatsoever for the status of said investments or the
failure of said investments.
9. Duties of Escrow Agent. The Escrow Agent undertakes
to perform only such duties as we expressly set forth herein mid
no implied duties or obligations shall be read into this
Agreement against the Escrow Agent.
10. Reliance of Escrow Agent. The Escrow Agent may act
in reliance upon any writing or instrument or signature which the
Escrow Agent, in good faith, believes to be genuine, may assume
the validity and accuracy of any statement or assertion contained
in such a writing or instrument, and may assume that any person
purporting to give any writing, notice, advice or instructions in
connection with the provisions hereof has been duly authorized to
do so.
11. Indemnification of Escrow Agent. Unless the Escrow
Agent discharges any of its duties hereunder in a negligent
manner or is guilty of misconduct with regard to its dudes
hereunder, the Issuer hereby agrees to indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities,
losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature which
it may incur or with which it may be threatened by reason of its
acting as Escrow Agent under this Agreement; and in connection
therewith, to indemnify the Escrow Agent against any and all
expenses, including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any claim.
12. Discretion of Escrow Agent to File an Interpleader
Action in the Event of Dispute. If the parties shall be in
disagreement about the interpretation of this Agreement, or about
the rights and obligations, or the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may,
but shall not be required to, file an action of interpleader to
resolve the disagreement and may hold all Proceeds until directed
by a court of competent jurisdiction as to the manner or
distribution or until all parties in dispute mutually agree to
the distributions The Escrow Agent shall be indemnified as set
forth in Paragraph 11 for all cost, including reasonable
attorneys' fees incurred by it, in connection with the aforesaid
interpleader action, and shall be fully protected in suspending
all o-r part of its activities under this agreement until a final
judgment or other appropriate order in the interpleader action is
entered.
13. Consultation with Counsel. The Escrow Agent may
consult with independent counsel of its own choice and shall have
full and complete authorization and protection in accordance with
the opinion of such counsel. The, Escrow Agent shall otherwise
not be liable for any mistakes of fact or errors of judgment, or
for any acts or omissions of any kind unless caused by its
negligence or misconduct.
14. Resignation of Escrow Agent. The Escrow Agent may
resign upon thirty (30) days written notice to the Issuer. If a
successor Escrow Agent is not Appointed by the Issuer within this
thirty (30) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor or, at its option, the
Escrow Agent may do nothing until such time as the Issuer has
furnished the name of a successor Escrow Agent or otherwise
directed the Escrow Agent as to the disposition of Proceeds;
provided, however, if the Charter has not been received the
Escrow Agent shall not pay to the Issuer any of the Proceeds.
15. Compensation and Expenses. The Escrow Agent shall
be entitled to compensation from the Issuer for its services
hereunder in an amount of $1,500.00. In the event Escrow Agent
must return the escrow funds to a Subscriber, the Issuer agrees
to compensate Escrow Agent by paying said Agent an additional
$10.00 per Subscriber.
16. Notices. All notices permitted or required to be
given to any party under this Agreement shall be in writing and
shall be deemed to have been given upon receipt by the party
being notified. In the case of the Issuer, such notices shall be
sent to:
Charles S. Conolev
Suite C
3005-26th Street West
Bradenton, Florida 34205
AND
Daniel D, Dinur
One Lakeside Commons
990 Hammond Drive, Suite 760
Atlanta, GA 30328
Either party may change the address, at which said notice is
to be given by giving notice of such to all other parties to this
Agreement in the manner set forth herein.
17. The rights created by the Agreement shall inure to
the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the Escrow Agent.
18. Laws of the State of Florida to Apply. This
Agreement shall be construed in accordance with, and governed by
the laws of, the State of Florida.
19. Termination. This Escrow Agreement shall terminate
and the Escrow Agent shall be discharged of all further
responsibility hereunder at such time as the Escrow Agent shall
have completed its duties under Paragraphs 4, 5 or 6, as the case
may be.
20. Complete Agreement. This Agreement constitutes the
complete agreement between the parties hereto and incorporates
all prior discussions, agreements and representations made in
regard to the matters set forth herein. This Agreement may not
be amended, modified or changed except by a writing signed by the
party to be charged by said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Horizon Bancorporation, Inc.
(CORPORATE SEAL)
By:
-------------------------------
Name: Charles S. Conoley
Title: President
SunTrust Bank, Central Florida, National Association
By:
-------------------------------
Deborah Moreya
First Vice President
- ---------
EXHIBIT 9
- ---------
ESCROW AGREEMENT
This ESCROW AGREEMENT effective as of the 30th day of October,
1998 by and among,
Horizon Bancorporation, Inc., located at Suite C, 3005-26th
Street, West, Bradenton, Florida 34205 (hereinafter referred to
as the "Issuer")
and
SunTrust Bank, Central Florida, National Association, located at
225 East Robinson Street Suite 250, Orlando, Florida 32801
(hereinafter referred to as the "Escrow Agent')
WITNESSETH:
WHEREAS, the Issuer intends to offer and sell to various
investors (the "Subscribers") no less 1,050,000 shares and no
more than 1,500,000 shares of its capital stock, par value .01
per share (the "Capital Stock"), at a subscription price of $5.00
per share pursuant to an offering to the public (the "Offering"),
and
WHEREAS, the Issuer must sell at least 1,050,000 shares
("Required Offering") of Capital Stock on or before the date
stipulated in Addendum A attached hereto ("Required Offering
Deadline"); and
WHEREAS, the release of the subscription funds to the Issuer
is contingent Upon the grant of preliminary approval for the
requisite charter (the "Charter") from the Florida Department of
Banking and Finance (the "Florida Department") on or before the
Expiration Date (the "Expiration Date") set forth in the Offering
Circular of the Issuer relating to the Offering; and
WHEREAS, the parties hereto wish to agree among themselves
as to the treatment of all subscription proceeds which may be in
the form of checks, cashier's checks and/or money orders (the
"Proceeds"), along with properly executed subscription
agreements, from the Subscription pursuant to the Offering until
such time as the Charter is granted.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto agree as follows:
1. Creation of Escrow Agreement. Pursuant to the terms
and conditions of this Agreement, the parties do hereby agree
that the Escrow Agent shall act as escrow agent in regard to
Proceeds received from the Subscribers for the Capital Stock
pursuant to the Offering.
2. Deposit and Delivery of Proceeds and Subscription
Agreements. The Escrow Agent shall deposit and hold in escrow
under this Agreement all Proceeds received by the Issuer from the
Subscribers in regard to the purchase of the Capital Stock
pursuant to the Offering, The Escrow Agent shall have no
responsibility whatsoever in regard to Proceeds not received and
for funds that have not yet cleared and become good funds.
Subscribers shall make the payment for the capital Stock payable
to the Escrow Agent. In the event checks are made payable to the
Issuer, the Issuer shall promptly endorse said checks to the
order of the Escrow Agent. Simultaneously with the delivery of
the Proceeds, the Issuer shall deliver to the Escrow Agent the
Subscription Agreements and copies of the written acceptances for
which the Proceeds represent payments, The Escrow Agent shall
hold the Proceeds and Subscription Agreements pursuant to the
terms and conditions of this Agreement.
3. Partial Rejection of Subscription Agreements. Should
the Issuer elect to accept a subscription for less than the
number of shares shown in a Subscribers Subscription Agreement by
indicating such lesser number of shares on the written acceptance
of the Issuer transmitted with the Subscription Agreement and
payment therefore the Escrow Agent shall deposit such payment in
the escrow account and then remit within thirty (30) days to such
Subscriber at the address shown in his Subscription Agreement
that amount of his Proceeds in excess of the amount which
constitutes full payment for the number of subscribed shares
accepted by the Issuer as shown in the Banks written acceptance,
such amount to be remitted without interest or reduction.
4. Achievement or Failure to Achieve Required Offering.
The Escrow Agent shall notify the Issuer in writing at such time
as it has received Proceeds totaling at least $5,250,000
exclusive of those which have been rejected by the Issuer and
shall continue to receive and hold such funds until notified by
the Issuer to release the proceeds to the Issuer. If, on or
before the Expiration Date, the Escrow Agent shall not have
received Proceeds from the Subscribers for at least $5,250,000,
the Escrow Agent shall return to each Subscriber the appropriate
amount of the Proceeds (without interest or deduction) received
and collected from him hereunder.
5. Failure to Request Proceeds. If, by the close of
business on the Expiration Date, the Issuer shall not have,
delivered a written request to the Escrow Agent authorizing
release of the Proceeds, the Escrow Agent shall promptly return
to the Subscribers the Proceeds (without interest or deduction)
received and collected from them hereunder.
6. Request For Proceeds. Subject to provision of
paragraph 4, hereof, if the Issuer delivers a written request to
release Proceeds, the Escrow Agent shall, Within three (3) days
of receiving notification thereof from the Issuer, pay to the
Issuer all cleared proceeds then and thereafter received by it
(including any interest earned thereon) after deducting therefrom
the fees and costs of the Escrow Agent as set forth in Paragraph
1 5 hereof
7. Return of Proceeds to Subscribers. If instructed in
writing to do so by the Issuer the Escrow Agent agrees to return
to any Subscriber, whether his Subscription Agreement has been
accepted by the Issuer or not, Proceeds deposited pursuant to
this Agreement by the Subscriber. Written instruction by the
Issuer to return funds to a Subscriber must be received by the
Escrow Agent prior to the Escrow Agent's disbursement of Proceeds
pursuant to Paragraph 6 of this Agreement. The Escrow Agent, in
returning funds to the Subscribers hereunder, may rely on the
names and addresses furnished to the Escrow Agent by the Issuer
without the requirement of independent verification, All returns
and deliveries to a Subscriber under this Agreement shall be
mailed, by regular mail, to the residential or business address
of such Subscriber, appearing on his Subscription Agreement. Any
payment to a Subscriber will be made by check.
8. Investment of Proceeds by Escrow Agent. The Escrow
Agent shall, at the direction of the President of the Issuer,
invest the Proceeds in one or more mutual funds or a master
repurchase agreement comprised solely of investments in United
States government, United States government backed securities and
repurchase agreements collateralized by United States government
backed securities. Interest and other monies earned on said
investments shall accrue to the benefit of the Issuer; provided,
however, if the Required Offering is not obtained, interest and
other monies earned on said investments shall be paid to
Subscribers, with the Issuer remaining obligated to pay the fees
of the Escrow Agent. The Escrow Agent shall advise the Issuer as
to the form of investments into which the Proceeds have been
placed, and furnish to the Issuer periodic, and final reports. of
said investments. The Escrow Agent shall have no liability or
obligation whatsoever for the status of said investments or the
failure of said investments.
9. Duties of Escrow Agent. The Escrow Agent undertakes
to perform only such duties as we expressly set forth herein mid
no implied duties or obligations shall be read into this
Agreement against the Escrow Agent.
10. Reliance of Escrow Agent. The Escrow Agent may act
in reliance upon any writing or instrument or signature which the
Escrow Agent, in good faith, believes to be genuine, may assume
the validity and accuracy of any statement or assertion contained
in such a writing or instrument, and may assume that any person
purporting to give any writing, notice, advice or instructions in
connection with the provisions hereof has been duly authorized to
do so.
11. Indemnification of Escrow Agent. Unless the Escrow
Agent discharges any of its duties hereunder in a negligent
manner or is guilty of misconduct with regard to its dudes
hereunder, the Issuer hereby agrees to indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities,
losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature which
it may incur or with which it may be threatened by reason of its
acting as Escrow Agent under this Agreement; and in connection
therewith, to indemnify the Escrow Agent against any and all
expenses, including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any claim.
12. Discretion of Escrow Agent to File an Interpleader
Action in the Event of Dispute. If the parties shall be in
disagreement about the interpretation of this Agreement, or about
the rights and obligations, or the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may,
but shall not be required to, file an action of interpleader to
resolve the disagreement and may hold all Proceeds until directed
by a court of competent jurisdiction as to the manner or
distribution or until all parties in dispute mutually agree to
the distributions The Escrow Agent shall be indemnified as set
forth in Paragraph 11 for all cost, including reasonable
attorneys' fees incurred by it, in connection with the aforesaid
interpleader action, and shall be fully protected in suspending
all o-r part of its activities under this agreement until a final
judgment or other appropriate order in the interpleader action is
entered.
13. Consultation with Counsel. The Escrow Agent may
consult with independent counsel of its own choice and shall have
full and complete authorization and protection in accordance with
the opinion of such counsel. The, Escrow Agent shall otherwise
not be liable for any mistakes of fact or errors of judgment, or
for any acts or omissions of any kind unless caused by its
negligence or misconduct.
14. Resignation of Escrow Agent. The Escrow Agent may
resign upon thirty (30) days written notice to the Issuer. If a
successor Escrow Agent is not Appointed by the Issuer within this
thirty (30) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor or, at its option, the
Escrow Agent may do nothing until such time as the Issuer has
furnished the name of a successor Escrow Agent or otherwise
directed the Escrow Agent as to the disposition of Proceeds;
provided, however, if the Charter has not been received the
Escrow Agent shall not pay to the Issuer any of the Proceeds.
15. Compensation and Expenses. The Escrow Agent shall
be entitled to compensation from the Issuer for its services
hereunder in an amount of $1,500.00. In the event Escrow Agent
must return the escrow funds to a Subscriber, the Issuer agrees
to compensate Escrow Agent by paying said Agent an additional
$10.00 per Subscriber.
16. Notices. All notices permitted or required to be
given to any party under this Agreement shall be in writing and
shall be deemed to have been given upon receipt by the party
being notified. In the case of the Issuer, such notices shall be
sent to:
Charles S. Conolev
Suite C
3005-26th Street West
Bradenton, Florida 34205
AND
Daniel D, Dinur
One Lakeside Commons
990 Hammond Drive, Suite 760
Atlanta, GA 30328
Either party may change the address, at which said notice is
to be given by giving notice of such to all other parties to this
Agreement in the manner set forth herein.
17. The rights created by the Agreement shall inure to
the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the Escrow Agent.
18. Laws of the State of Florida to Apply. This
Agreement shall be construed in accordance with, and governed by
the laws of, the State of Florida.
19. Termination. This Escrow Agreement shall terminate
and the Escrow Agent shall be discharged of all further
responsibility hereunder at such time as the Escrow Agent shall
have completed its duties under Paragraphs 4, 5 or 6, as the case
may be.
20. Complete Agreement. This Agreement constitutes the
complete agreement between the parties hereto and incorporates
all prior discussions, agreements and representations made in
regard to the matters set forth herein. This Agreement may not
be amended, modified or changed except by a writing signed by the
party to be charged by said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Horizon Bancorporation, Inc.
(CORPORATE SEAL)
By:
-------------------------------
Name: Charles S. Conoley
Title: President
SunTrust Bank, Central Florida, National Association
By:
-------------------------------
Deborah Moreya
First Vice President
- ---------
EXHIBIT 9
- ---------
ESCROW AGREEMENT
This ESCROW AGREEMENT effective as of the 30th day of October,
1998 by and among,
Horizon Bancorporation, Inc., located at Suite C, 3005-26th
Street, West, Bradenton, Florida 34205 (hereinafter referred to
as the "Issuer")
and
SunTrust Bank, Central Florida, National Association, located at
225 East Robinson Street Suite 250, Orlando, Florida 32801
(hereinafter referred to as the "Escrow Agent')
WITNESSETH:
WHEREAS, the Issuer intends to offer and sell to various
investors (the "Subscribers") no less 1,050,000 shares and no
more than 1,500,000 shares of its capital stock, par value .01
per share (the "Capital Stock"), at a subscription price of $5.00
per share pursuant to an offering to the public (the "Offering"),
and
WHEREAS, the Issuer must sell at least 1,050,000 shares
("Required Offering") of Capital Stock on or before the date
stipulated in Addendum A attached hereto ("Required Offering
Deadline"); and
WHEREAS, the release of the subscription funds to the Issuer
is contingent Upon the grant of preliminary approval for the
requisite charter (the "Charter") from the Florida Department of
Banking and Finance (the "Florida Department") on or before the
Expiration Date (the "Expiration Date") set forth in the Offering
Circular of the Issuer relating to the Offering; and
WHEREAS, the parties hereto wish to agree among themselves
as to the treatment of all subscription proceeds which may be in
the form of checks, cashier's checks and/or money orders (the
"Proceeds"), along with properly executed subscription
agreements, from the Subscription pursuant to the Offering until
such time as the Charter is granted.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto agree as follows:
1. Creation of Escrow Agreement. Pursuant to the terms
and conditions of this Agreement, the parties do hereby agree
that the Escrow Agent shall act as escrow agent in regard to
Proceeds received from the Subscribers for the Capital Stock
pursuant to the Offering.
2. Deposit and Delivery of Proceeds and Subscription
Agreements. The Escrow Agent shall deposit and hold in escrow
under this Agreement all Proceeds received by the Issuer from the
Subscribers in regard to the purchase of the Capital Stock
pursuant to the Offering, The Escrow Agent shall have no
responsibility whatsoever in regard to Proceeds not received and
for funds that have not yet cleared and become good funds.
Subscribers shall make the payment for the capital Stock payable
to the Escrow Agent. In the event checks are made payable to the
Issuer, the Issuer shall promptly endorse said checks to the
order of the Escrow Agent. Simultaneously with the delivery of
the Proceeds, the Issuer shall deliver to the Escrow Agent the
Subscription Agreements and copies of the written acceptances for
which the Proceeds represent payments, The Escrow Agent shall
hold the Proceeds and Subscription Agreements pursuant to the
terms and conditions of this Agreement.
3. Partial Rejection of Subscription Agreements. Should
the Issuer elect to accept a subscription for less than the
number of shares shown in a Subscribers Subscription Agreement by
indicating such lesser number of shares on the written acceptance
of the Issuer transmitted with the Subscription Agreement and
payment therefore the Escrow Agent shall deposit such payment in
the escrow account and then remit within thirty (30) days to such
Subscriber at the address shown in his Subscription Agreement
that amount of his Proceeds in excess of the amount which
constitutes full payment for the number of subscribed shares
accepted by the Issuer as shown in the Banks written acceptance,
such amount to be remitted without interest or reduction.
4. Achievement or Failure to Achieve Required Offering.
The Escrow Agent shall notify the Issuer in writing at such time
as it has received Proceeds totaling at least $5,250,000
exclusive of those which have been rejected by the Issuer and
shall continue to receive and hold such funds until notified by
the Issuer to release the proceeds to the Issuer. If, on or
before the Expiration Date, the Escrow Agent shall not have
received Proceeds from the Subscribers for at least $5,250,000,
the Escrow Agent shall return to each Subscriber the appropriate
amount of the Proceeds (without interest or deduction) received
and collected from him hereunder.
5. Failure to Request Proceeds. If, by the close of
business on the Expiration Date, the Issuer shall not have,
delivered a written request to the Escrow Agent authorizing
release of the Proceeds, the Escrow Agent shall promptly return
to the Subscribers the Proceeds (without interest or deduction)
received and collected from them hereunder.
6. Request For Proceeds. Subject to provision of
paragraph 4, hereof, if the Issuer delivers a written request to
release Proceeds, the Escrow Agent shall, Within three (3) days
of receiving notification thereof from the Issuer, pay to the
Issuer all cleared proceeds then and thereafter received by it
(including any interest earned thereon) after deducting therefrom
the fees and costs of the Escrow Agent as set forth in Paragraph
1 5 hereof
7. Return of Proceeds to Subscribers. If instructed in
writing to do so by the Issuer the Escrow Agent agrees to return
to any Subscriber, whether his Subscription Agreement has been
accepted by the Issuer or not, Proceeds deposited pursuant to
this Agreement by the Subscriber. Written instruction by the
Issuer to return funds to a Subscriber must be received by the
Escrow Agent prior to the Escrow Agent's disbursement of Proceeds
pursuant to Paragraph 6 of this Agreement. The Escrow Agent, in
returning funds to the Subscribers hereunder, may rely on the
names and addresses furnished to the Escrow Agent by the Issuer
without the requirement of independent verification, All returns
and deliveries to a Subscriber under this Agreement shall be
mailed, by regular mail, to the residential or business address
of such Subscriber, appearing on his Subscription Agreement. Any
payment to a Subscriber will be made by check.
8. Investment of Proceeds by Escrow Agent. The Escrow
Agent shall, at the direction of the President of the Issuer,
invest the Proceeds in one or more mutual funds or a master
repurchase agreement comprised solely of investments in United
States government, United States government backed securities and
repurchase agreements collateralized by United States government
backed securities. Interest and other monies earned on said
investments shall accrue to the benefit of the Issuer; provided,
however, if the Required Offering is not obtained, interest and
other monies earned on said investments shall be paid to
Subscribers, with the Issuer remaining obligated to pay the fees
of the Escrow Agent. The Escrow Agent shall advise the Issuer as
to the form of investments into which the Proceeds have been
placed, and furnish to the Issuer periodic, and final reports. of
said investments. The Escrow Agent shall have no liability or
obligation whatsoever for the status of said investments or the
failure of said investments.
9. Duties of Escrow Agent. The Escrow Agent undertakes
to perform only such duties as we expressly set forth herein mid
no implied duties or obligations shall be read into this
Agreement against the Escrow Agent.
10. Reliance of Escrow Agent. The Escrow Agent may act
in reliance upon any writing or instrument or signature which the
Escrow Agent, in good faith, believes to be genuine, may assume
the validity and accuracy of any statement or assertion contained
in such a writing or instrument, and may assume that any person
purporting to give any writing, notice, advice or instructions in
connection with the provisions hereof has been duly authorized to
do so.
11. Indemnification of Escrow Agent. Unless the Escrow
Agent discharges any of its duties hereunder in a negligent
manner or is guilty of misconduct with regard to its dudes
hereunder, the Issuer hereby agrees to indemnify the Escrow Agent
and hold it harmless from any and all claims, liabilities,
losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature which
it may incur or with which it may be threatened by reason of its
acting as Escrow Agent under this Agreement; and in connection
therewith, to indemnify the Escrow Agent against any and all
expenses, including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any claim.
12. Discretion of Escrow Agent to File an Interpleader
Action in the Event of Dispute. If the parties shall be in
disagreement about the interpretation of this Agreement, or about
the rights and obligations, or the propriety of any action
contemplated by the Escrow Agent hereunder, the Escrow Agent may,
but shall not be required to, file an action of interpleader to
resolve the disagreement and may hold all Proceeds until directed
by a court of competent jurisdiction as to the manner or
distribution or until all parties in dispute mutually agree to
the distributions The Escrow Agent shall be indemnified as set
forth in Paragraph 11 for all cost, including reasonable
attorneys' fees incurred by it, in connection with the aforesaid
interpleader action, and shall be fully protected in suspending
all o-r part of its activities under this agreement until a final
judgment or other appropriate order in the interpleader action is
entered.
13. Consultation with Counsel. The Escrow Agent may
consult with independent counsel of its own choice and shall have
full and complete authorization and protection in accordance with
the opinion of such counsel. The, Escrow Agent shall otherwise
not be liable for any mistakes of fact or errors of judgment, or
for any acts or omissions of any kind unless caused by its
negligence or misconduct.
14. Resignation of Escrow Agent. The Escrow Agent may
resign upon thirty (30) days written notice to the Issuer. If a
successor Escrow Agent is not Appointed by the Issuer within this
thirty (30) day period, the Escrow Agent may petition a court of
competent jurisdiction to name a successor or, at its option, the
Escrow Agent may do nothing until such time as the Issuer has
furnished the name of a successor Escrow Agent or otherwise
directed the Escrow Agent as to the disposition of Proceeds;
provided, however, if the Charter has not been received the
Escrow Agent shall not pay to the Issuer any of the Proceeds.
15. Compensation and Expenses. The Escrow Agent shall
be entitled to compensation from the Issuer for its services
hereunder in an amount of $1,500.00. In the event Escrow Agent
must return the escrow funds to a Subscriber, the Issuer agrees
to compensate Escrow Agent by paying said Agent an additional
$10.00 per Subscriber.
16. Notices. All notices permitted or required to be
given to any party under this Agreement shall be in writing and
shall be deemed to have been given upon receipt by the party
being notified. In the case of the Issuer, such notices shall be
sent to:
Charles S. Conolev
Suite C
3005-26th Street West
Bradenton, Florida 34205
AND
Daniel D, Dinur
One Lakeside Commons
990 Hammond Drive, Suite 760
Atlanta, GA 30328
Either party may change the address, at which said notice is
to be given by giving notice of such to all other parties to this
Agreement in the manner set forth herein.
17. The rights created by the Agreement shall inure to
the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the Escrow Agent.
18. Laws of the State of Florida to Apply. This
Agreement shall be construed in accordance with, and governed by
the laws of, the State of Florida.
19. Termination. This Escrow Agreement shall terminate
and the Escrow Agent shall be discharged of all further
responsibility hereunder at such time as the Escrow Agent shall
have completed its duties under Paragraphs 4, 5 or 6, as the case
may be.
20. Complete Agreement. This Agreement constitutes the
complete agreement between the parties hereto and incorporates
all prior discussions, agreements and representations made in
regard to the matters set forth herein. This Agreement may not
be amended, modified or changed except by a writing signed by the
party to be charged by said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
Horizon Bancorporation, Inc.
(CORPORATE SEAL)
By:
-------------------------------
Name: Charles S. Conoley
Title: President
SunTrust Bank, Central Florida, National Association
By:
-------------------------------
Deborah Moreya
First Vice President
