SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM SB-1 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Horizon Bancorporation, Inc.
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(Name of Small Business Issuer in Its Charter)
Florida
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(State of Jurisdiction of Incorporation or
Organization)
6711
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(Primary Standard Industrial Classification Code
Number)
65-0840656
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(I.R.S. Employer Identification No.)
Suite C, 3005-26th Street West.
Bradenton, Florida 34205; (941) 753-2265
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(Address and Telephone Number of Principal Executive
Offices)
Charles S. Conoley
Suite C, 3005-26th Street West
Bradenton, Florida 34205
(941) 753-2265
with a copy to:
Daniel D. Dinur, Esq.
One Lakeside Commons
990 Hammond Drive
Suite 760
Atlanta, GA 30328
(770) 395-3170
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(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.
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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
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Title of Dollar Proposed Proposed Amount
Each Class Amount Maximum Minimum of
Of To Be Offering Aggregate Regis-
Securities Registered Price Per Offering tration
To Be Unit Price Fee
Registered
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Common
Stock $7,500,000 $5.00 $7,500,000 $2,085
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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
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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
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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
PROSPECTUS
HORIZON BANCORPORATION, INC.
A proposed bank holding company
for Horizon Bank (in organization)
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1,050,000 Shares Minimum;
1,500,000 Shares Maximum
$.01 Par Value Per Share Common Stock
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HORIZON BANCORPORATION, INC., a Florida
corporation, (the "Company"), hereby offers a minimum
of 1,050,000 Shares (the "Minimum Offering") and a
maximum of 1,500,000 Shares (the "Maximum Offering") of
its $.01 par value per share Common Stock (the
"Shares"), at the price of $5.00 per Share ("Offering
Price"). The purpose of the Offering (herein so called)
is to capitalize and own all of the issued shares of
capital stock of HORIZON BANK (In Organization) (the
"Bank"). The Bank applied for its charter as a Florida
state-chartered bank from the Florida Department of
Banking and Finance (the "DBF") and for federal deposit
insurance from the Federal Deposit Insurance
Corporation ("FDIC") on October 12, 1998. The current
directors and officers of the Company and Bank (the
"Organizers") have agreed to subscribe for at least
264,000 Shares at the Offering Price within thirty (30)
days after the effective date of the Registration
Statement. In recognition of the financial risks the
Organizers have undertaken prior to such effective date
and will have undertaken after such date if the
Offering is not successful, as well as an incentive for
them to serve as directors of the Company and the Bank,
if the Offering is successful, each Organizer will be
granted a warrant to acquire at the Offering Price one
additional Share for each Share subscribed in
accordance with his or her agreement, subject to
certain conditions. See, "Certain Transactions -
Organizers' and Directors' Shares, Warrants and Stock
Options." There has been no public market for the
Common Stock and there can be no assurance that an
active trading market will develop as a result of the
Offering.
At this time, neither the Company nor the Bank has
commenced operations and the Bank may not do so unless
it receives a permit to begin business from the DBF,
approval of insurance of deposit accounts by the FDIC
and approval for membership in the Federal Reserve
System from the Board of Governors of the Federal
Reserve System ("FRB") and the Company receives
approval to act as a bank holding company from the FRB.
Accordingly, as stated below, no subscription proceeds
will be released from the escrow account until the
Company and the Bank has each received all regulatory
approvals.
The Company's offices are currently located at
Suite C, 3005-26th Street West, Bradenton, Florida
34205 and its telephone number is (941) 753-2265.
Permanent offices for the Company and the Bank will be
located at 901 53rd Avenue E., Bradenton, Florida
34203.
THESE SECURITIES ARE NOT SAVINGS DEPOSITS AND ARE
NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENT AGENCY.
INVESTMENT IN THE COMPANY INVOLVES A HIGH DEGREE OF
RISK AND INVESTORS SHOULD NOT INVEST ANY FUNDS IN THIS
OFFERING UNLESS THEY CAN AFFORD TO LOSE THEIR ENTIRE
INVESTMENT. SEE THE "RISK FACTORS" SECTION OF THE
PROSPECTUS FOR A DISCUSSION OF THOSE RISKS THAT
MANAGEMENT BELIEVES PRESENT THE MOST SUBSTANTIAL RISK
TO AN INVESTOR.
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION
(THE "SEC") NOR HAS THE SEC PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
Price to Discounts and Proceeds to
Public Commissions (1) Company(2)
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Per Share $5 $0 $5
Minimum Offering (3) $5,250,000 $0 $5,250,000
Maximum Offering (3) $7,500,000 $0 $7,500,000
(1) The Shares are being offered on behalf of the
Company by the directors and executive officers of the
Company and the Bank, who will receive no compensation
for selling the Shares, but shall be reimbursed for
reasonable expenses incurred by them in connection with
this Offering. The Company reserves the right to
simultaneously offer the Shares through registered
securities broker-dealers or sales persons and to pay
reasonable commissions not to exceed 8% of the gross
Offering proceeds to such persons, subject to the
condition that the Minimum Offering then be increased
to allow the proceeds to the Company to be not less
than $5,250,000 net of commissions paid.
(2) Before deduction of expenses payable by the
Company, estimated at $94,585, for registration fees,
legal and accounting fees, printing costs and other
Offering expenses.
(3) All subscription proceeds will be deposited in
an escrow account with SunTrust Bank Central Florida,
N.A. (the "Escrow Agent"), pending acceptance or
rejection of subscriptions and completion of the
Offering and receipt by the Company and the Bank of all
final regulatory approvals. If subscription proceeds
from the sale of the Minimum Offering are not deposited
in the escrow account and such approvals are not
received by June 30, 1999 (which period may be extended
for up to two 90-day periods by the Company without
notice to subscribers but not beyond December 31,
1999), all subscriptions will be canceled and all
proceeds will be returned promptly to subscribers in
full without interest. Interest earned on all
subscription proceeds will be paid to the Company
whether or not the Offering is completed.
Subscriptions are not binding until accepted by the
Company, and the Company reserves the right to accept
or reject subscriptions, in whole or in part, in its
sole discretion. All costs and expenses in excess of
interest earned on subscription proceeds of this
Offering will be borne by the Company (and thus the
Organizers) in the event the Minimum Offering fails or
regulatory approvals are not received and all
subscriptions are canceled.
THE DATE OF THIS PROSPECTUS IS DECEMBER 3, 1998.
Table of Contents
Prospectus Summary................................1
Risk Factors......................................4
The Offering......................................7
Use of Proceeds...................................8
Dividend Policy..................................10
Business.........................................10
Supervision and Regulation.......................15
Management.......................................17
Certain Transactions.............................20
Principal Shareholders...........................22
Description of Capital Stock.....................23
Legal Matters....................................25
Experts..........................................25
Additional Information...........................25
Index to Financial Statements....................27
CAUTIONARY STATEMENT FOR PURPOSES
OF THE PRIVATE SECURITIES LITIGATION
REFORM ACT OF 1995
This Prospectus may contain certain "forward-
looking statements" including statements concerning
plans, objectives, future events or performance and
assumptions and other statements which are other than
statements of historical fact. The Company and the Bank
caution readers that the following important factors,
among others, may have affected and could in the future
affect the Company's actual results and could cause the
Company's actual results for subsequent periods to
differ materially from those expressed in any forward-
looking statement made by or on behalf of the Company
herein: (i) the effect of changes in laws and
regulations, including federal and state banking laws
and regulations, with which the Company and the Bank
must comply, and the associated costs of compliance
with such laws and regulations either currently or in
the future as applicable; (ii) the effect of changes in
accounting policies and practices, as may be adopted by
the regulatory agencies as well as by the Financial
Accounting Standards Board, or of changes in the
Company's or the Bank's organization, compensation and
benefit plans; (iii) the effect on the Company's or the
Bank's competitive position within its market area as a
result of increasing consolidation within the banking
and financial services industries, including the
increased competition from larger national or regional
and out of state banking organizations as well as
nonbank providers of various financial services; (iv)
the effect of changes in interest rates; and (v) the
effect of changes in the business cycle and downturns
in the local, regional or national economies.
THE COMPANY CAUTIONS THAT THE FOREGOING LIST OF
IMPORTANT FACTORS IS NOT EXCLUSIVE. THE COMPANY DOES
NOT UNDERTAKE TO UPDATE ANY FORWARD-LOOKING STATEMENT,
WHETHER WRITTEN OR ORAL, THAT MAY BE MADE FROM TIME TO
TIME BY OR ON BEHALF OF THE COMPANY.
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY IS QUALIFIED IN ITS ENTIRETY
BY, AND SHOULD BE READ IN CONJUNCTION WITH, THE MORE
DETAILED INFORMATION AND THE FINANCIAL STATEMENTS
APPEARING ELSEWHERE IN THIS PROSPECTUS.
THE COMPANY AND THE BANK
HORIZON BANCORPORATION, INC. (f/k/a Manasota
Group, Inc.) (the "Company") was incorporated on May
27, 1998, by the Organizers for the purpose of becoming
a bank holding company for its proposed wholly-owned
subsidiary, Horizon Bank (In Organization) (the
"Bank"). The Company and the Bank, respectively, will
file an application with the FRB for authority to
become a bank holding company and a member of the
Federal Reserve System, respectively, upon receipt by
the Bank of its regulatory approvals from the DBF and
the FDIC, which, as stated below, are expected to occur
on or before February 12, 1999. The Company and the
Bank expect obtaining FRB's approval on or before April
30, 1999. Even if the Minimum Offering is subscribed
for before all regulatory approvals are obtained, no
subscription proceeds will be released from escrow
account until all such approvals are received.
The Bank will be located in Bradenton, Manatee
County, Florida, where Bradenton and the surrounding
portion of Manatee County will be its primary service
area. Subject to the approval of the DBF, the Bank's
permanent main office will be located at 901-53rd
Avenue E., Bradenton, Florida, where the Bank will
construct a 5,000-square foot banking facility which
will contain the Company's permanent office as well.
The Company currently occupies a 500-square foot
temporary office at Suite C, 3005-26th Street West,
Bradenton, Florida 34205 where its telephone number is
(941) 753-2265. Pending construction of the banking
facility, the Bank will open for business, as soon as
practicable after obtaining regulatory approvals and
successful completion of the Offering, by operating
from a temporary modular office located on the
construction site. The Bank will engage in the general
commercial banking business, emphasizing the needs of
individuals and small to medium sized businesses.
The following persons are the Organizers: Thomas
C. Bennett, Jr., Charles S. Conoley, Michael Shannon
Glasgow, C. Donald Miller, Jr., Stephen C. Mullen,
David K. Scherer, Bruce E. Shackelford, MaryAnn P.
Turner, and Clarence R. Urban, all of whom are
currently directors of the Company and who will be
elected directors of the Bank. The Company and the Bank
have employed Charles S. Conoley as their President and
Chief Executive Officer. Mr. Conoley has primary
responsibility for the organizational efforts of the
Company and the Bank.
THE OFFERING
Offering of Shares
Securities Offered: 1,500,000 Shares of $.01 par value
Common Stock
Offering Price: $5.00 per Share
Number of Shares Offered: Minimum of 1,050,000 Shares,
Maximum of 1,500,000 Shares
Shares Outstanding Prior to the Offering: 21,600 (Owned
by the Organizers)
Shares to be Outstanding after the Offering: 1,500,000
Shares
(assuming the Maximum Offering occurs)
Commitment by the Organizers: 264,000 Shares.
Use of Proceeds: The Company will use the proceeds of
the Offering:
(1) to pay expenses of the Offering (such expenses are
estimated to be $94,585);
(2) for the redemption, at the redemption price of $5
per share, of the 21,600 Shares owned by the Organizers
before the commencement of the Offering;
(3) for the repayment of any loans undertaken by the
Company to fund organizational expenses and expenses of
the Offering which were not covered by the $108,000
contributed by the Organizers in exchange for the
Shares referred to in (2) immediately above;
(4) for the capitalization of the Bank; and
(5) to the extent the ultimate net proceeds of the
Offering before payment of the amounts contemplated in
(1), (2) and (3) immediately above exceed $5,250,000,
then 50% of the excess over $5,250,000 for additional
capitalization of the Bank and the remaining 50% for
working capital of the Company.
Conditions to Offering: The offering of Shares
will be terminated and all subscription funds will be
returned to subscribers without interest unless, on or
before June 30, 1999 (unless extended, but not beyond
December 31, 1999)(the "Expiration Date"), the Company
has accepted subscriptions and payment in full for a
minimum of 1,050,000 Shares. 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. See, "USE OF PROCEEDS" and "THE
OFFERING."
RISK FACTORS
An investment in the securities offered by this
Prospectus involves substantial risks, including the
following:
1. The Company and the Bank are presently being
organized and therefore neither has any prior operating
history. New commercial banking institutions are
frequently not profitable in the initial years of
operations and no assurance can be given as to the
ultimate success of the Bank.
2. Neither the Company nor the Bank has commenced
their respective operations and neither will do so
unless the required capitalization of the Bank by the
Company is obtained from proceeds of the Offering and
regulatory approvals are obtained. There can be no
complete assurance that the Bank will not be delayed in
or precluded from the commencement of its business
operations because of not being able to complete the
construction of its main banking facility when the one-
year period provided for in the DBF's charter approval.
Under such circumstances, if proceeds of the Offering
have been released and partially expended, the
subscribers may incur a loss with respect to their
investment.
3. The Company and the Bank will be subject to
extensive government regulation and control, which will
limit the scope of Company and Bank activities and
impose compliance burdens and costs.
4. The Bank will experience competition in
attracting and retaining deposit accounts, making
commercial, consumer and real estate loans and
providing other services in its primary service area
with many well-established commercial banks and savings
institutions which may have competitive advantages over
the Bank.
5. The Company does not anticipate paying cash
dividends on its Common Stock in the immediate future
and regulatory requirements restrict the amount of
dividends that it may pay.
6. The profitability of the Bank will be materially
affected by economic conditions and other uncertainties
beyond the Bank's control due to the nature of its
business.
7. The Offering Price was determined by the Board
of Directors of the Company and bears no relation to
any established criteria of value.
8. Although the securities being offered hereby
will be freely transferable immediately upon issuance,
there is no current public market for the Common Stock
and it is not currently expected that an active trading
market will develop in the near future.
9. The Bank's marketing focus, which is on small to
medium sized businesses and primarily middle class
customers, may involve certain lending risks beyond
those experienced by commercial banking institutions
who rely on larger businesses and wealthier customers.
10. The Company has entered into an employment
agreement with a person with significant banking
experience to serve as President and Chief Executive
Officer of the Bank. The success of the Company and
the Bank will depend upon the ability of the Company
and the Bank to employ and retain skilled banking
personnel at all levels of their business.
11. Upon completion of the Offering, the Organizers
will own a substantial percentage of the Company's
outstanding Common Stock. In addition, stock options
will be issued in the future to a top officer and may
be issued to other employees and the directors of the
Company and the Bank. As a result, effective control of
the Board of Directors and policies of the Company and
the Bank will reside with the Organizers and officers
of the Company.
12. Because of the warrants to be granted to the
Organizers and the stock options which may be granted
to employees and the directors, a shareholder's
percentage ownership interest in the Company acquired
pursuant to the Offering is subject to dilution
following the completion of the Offering.
13. Certain provisions in the Company's Articles of
Incorporation and Bylaws may discourage non-negotiated
takeover attempts which certain shareholders might deem
to be in their best interest and may tend to perpetuate
existing management.
RISK FACTORS
AN INVESTMENT IN THE SHARES OF COMMON STOCK
OFFERED HEREBY INVOLVES A SUBSTANTIAL DEGREE OF RISK
AND SHOULD BE UNDERTAKEN ONLY BY PERSONS WHO CAN AFFORD
TO LOSE THEIR ENTIRE INVESTMENT. THESE SHARES WILL NOT
BE INSURED BY THE FDIC OR ANY OTHER GOVERNMENTAL
AGENCY. IN ADDITION TO INDIVIDUAL CONSIDERATIONS AND
FACTORS SET FORTH ELSEWHERE IN THIS PROSPECTUS, PERSONS
INTERESTED IN PURCHASING SHARES OF THE COMMON STOCK
SHOULD CAREFULLY CONSIDER THE FOLLOWING RISKS BEFORE
MAKING A DECISION TO SUBSCRIBE.
BURDENS OF GOVERNMENT REGULATION. The Company and
the Bank will be subject to extensive government
regulation and control. This regulation not only
imposes cost and compliance burdens but also limits and
defines the scope and nature of the Company's and the
Bank's activities. See, "BUSINESS" and "SUPERVISION AND
REGULATION."
REQUIREMENT FOR FURTHER REGULATORY APPROVALS.
Neither the Company nor the Bank has commenced their
respective operations as a bank holding company or as a
commercial bank and neither will do so unless the
required capitalization of the Bank by the Company is
obtained from proceeds of the Offering, the FRB
approves the Company's holding company application and
the Bank's application for membership in the Federal
Reserve System, the DBF issues a permit for the Bank to
begin business and the FDIC authorizes insurance of the
Bank's deposit accounts. Although management does not
foresee any difficulty in meeting the requirements and
time deadlines established for obtaining such
authorizations, there can be no assurance that the
Company or the Bank will not be delayed in or precluded
from the commencement of their respective business
operations.
It is contemplated that the construction of the
Bank's main banking facility will be completed within
six months and that construction will not begin until
all regulatory approvals are received and the
subscription proceeds are released from escrow.
Nonetheless, there is a possibility that the Offering
is completed, the subscription proceeds are released to
the Company, the Shares are issued and the Offering
proceeds are expended as described in "Use of Proceeds"
but the Bank is not able to satisfy the post-approval
condition of opening the main banking facility for
business within one year from the date of approval of
its charter by the DBF. In that event, the Company's
Board of Directors would determine to pursue a
voluntary dissolution of the Bank and to propose that
the shareholders approve the liquidation of the Company
and the distribution of its net assets to the Company's
shareholders. Under such circumstances, a material loss
could result to purchasers of the Shares.
EXPECTED UNPROFITABLE OPERATIONS. New commercial
banking institutions are generally not profitable in
the initial years of operations, and the Company and
the Bank do not expect to achieve profitable operations
on a current basis until at least the second full year
of operations. No assurance can be given as to when or
whether either the Company's or the Bank's operations
will become profitable.
COMPETITION WITH WELL-ESTABLISHED FINANCIAL
INSTITUTIONS. The Bank will experience competition in
attracting and retaining deposit accounts, making
commercial, consumer and real estate loans and
providing other services in its primary service area
with many well-established financial institutions which
may have competitive advantages as a result of greater
resources and higher lending limits (by virtue of their
greater capitalization) than the Company or the Bank.
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. Moreover, entry into the
Bank's primary service area of other independent
institutions may affect the Bank's competitive
position. In addition to commercial banks and savings
institutions, the Bank will be competing with credit
unions, brokerage firms, money market funds, and other
financial institutions which provide services similar
to the deposit, lending and other services to be
offered by the Bank, and which may have competitive
advantages as a result of greater capitalization or
being subject to different regulation.
In addition, the United States Congress has passed
legislation that will more freely permit interstate
banking and, Congress may, in the near future, consider
the elimination of barriers to entry by non-banking
enterprises into the commercial banking industry by
repealing the Glass-Steagall Act. The combined effect
of such legislation is likely to increase competition
in the commercial banking industry generally and in the
Bank's service area. See, "SUPERVISION AND REGULATION
Recent Legislative Developments."
In order to compete with other financial
institutions in its primary service area, the Bank will
rely principally upon local advertising and promotional
activity and upon personal contacts by its directors,
officers and shareholders to attract business and
acquaint potential customers with the personalized
services to be offered by an independent, locally-owned
and headquartered commercial bank. Management believes
that the Bank will be able to compete effectively with
other institutions, but no assurance can be given in
this regard. See, "BUSINESS."
LACK OF OPERATING HISTORY. The Company and the
Bank are presently being organized and neither has any
prior operating history. Since the Company will
function principally as a bank holding company, its
success will depend on the Bank's operations. The
business of commercial banking involves primarily the
acceptance by the Bank of deposits from customers and
the investment by the Bank of those funds in either
securities (for instance, United States Treasury
obligations) or loans to customers of the Bank. Profits
from operations depend, in large part, on the spread
between the interest income earned by the Bank on its
investments and loans and the interest paid by the Bank
on deposits. Deposit flows are influenced by a number
of factors, including interest rates on money market
funds and other competing investments, account
maturities and levels of personal income and savings.
Lending activities are influenced by, among other
things, the demand for and supply of housing,
commercial ventures and consumer goods, conditions in
the local economy and the availability and cost of
funds. Sources of funds for lending activities include
deposits, loan payments, proceeds from sales of loans,
investment returns and borrowings. No assurance can be
given as to the ultimate success of the Bank.
POTENTIAL ADVERSE IMPACT OF ECONOMIC CONDITIONS
AND OTHER UNCERTAINTIES. The results of operations of
commercial banking institutions depend to a large
extent on the level of "net interest income" or "rate
differentials," i.e., the difference between the income
earned on loans, securities and other assets, and the
interest paid on deposits and other borrowings. Net
interest income is materially affected by general
economic and political conditions (both domestic and
international), the monetary and fiscal policies of the
federal government and the regulatory policies of
governmental agencies. Conditions such as fluctuating
interest rates, money supply policies, inflation,
recession, unemployment, natural resource policies,
international conflicts and other factors beyond the
Bank's control may adversely affect the profitability
of the Bank.
Management anticipates that a majority of the
Bank's borrowers and depositors will be businesses and
individuals located and doing business in and around
Bradenton, Manatee County, Florida. Any factors which
adversely affect the local economy would be likely to
have an adverse effect on the
performance of the Bank.
LENDING RISKS. The risk of nonpayment (or
deferred payment) of loans is inherent to commercial
banking institutions. The Bank's marketing focus on
small to medium sized businesses and middle-class
customers may, however, involve certain lending risks
not inherent in loans to larger business and tom more
wealthy customers. Larger organizations would have
greater capacity to repay amounts loaned by the Bank in
the event of an economic downturn or other adversity
than the smaller companies to which the Bank will be
lending. The Bank's loan customers may include a
disproportionate number of individuals and entities
seeking to establish a new banking relationship because
they are dissatisfied with the amount or terms of
credit offered by their current banks. Although
management is aware of, and intends to take the steps
it believes are necessary to protect the Bank from, the
potential risks associated with extending credit to
customers with whom the Bank has not had a prior
lending relationship, there can be no assurance that
the Bank will not incur excessive loan losses.
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. Because the Bank
will create its loan portfolio from all new customers,
it will be several years before the quality of the
Bank's established loan portfolio can be fully
evaluated.
NEED FOR RETENTION OF PERSONNEL WITH BANKING
MANAGEMENT EXPERIENCE. The Bank has an employment
agreement with Charles S. Conoley, as President of the
Bank, and intends to employ a staff of experienced
banking personnel at all levels of services to its
customers. The ability of the Company and the Bank to
conduct their operations in an organized, efficient and
profitable manner will depend greatly upon the skills
of banking personnel and on their continued employment
by the Company and the Bank.
ARBITRARY OFFERING PRICE. Since neither the
Company nor the Bank has had any prior operating
history, the Offering Price for the securities being
offered hereby was determined by the Board of Directors
of the Company and bears no relationship to assets,
book value, earnings or other established criteria of
value. In fixing the Offering Price, the Board of
Directors considered, among other things, the Bank's
business plan and the Offering prices of other newly-
organized bank holding companies and financial
institutions. The Board has determined to seek
sufficient capital from this initial public offering in
order to reach the goals of the Bank's business plan
and to provide support for the Bank's growth and to
engage in other permitted activities.
RESTRICTIONS ON DIVIDENDS. In order to preserve
its capital to facilitate growth and expansion of its
business, the Company does not anticipate paying cash
dividends with respect to the Shares in the immediate
future. Furthermore, the Company's primary source of
funds for the payment of dividends will be dividends
from the Bank, and there are regulatory requirements
and limitations on the amount of dividends that the
Bank may pay to the Company. See, "DIVIDEND POLICY"
and "SUPERVISION AND REGULATION."
LIMITED TRADING MARKET. The securities being
offered hereby will not be subject to any specific
restrictions on transfer (with the exception of
securities held by the Company's directors, officers
and affiliates) and will be freely transferable
immediately upon issuance. Nevertheless, prior to the
Offering there has been no public market for the Common
Stock and it is not currently expected that an active
trading market will develop for at least several years
after the Offering, if ever. As a result, shareholders
who desire to sell their Shares may be required to
locate purchasers on their own and may not be able to
do so.
NO FIRM UNDERWRITING OF THIS OFFERING. The
Offering is being made without the benefit of a "firm"
underwriting. Sales will be solicited on a "best
efforts" basis by certain directors and executive
officers of the Company. Accordingly, except for the
purchase of Shares by the Organizers, there can be no
assurance that any of the securities offered hereby
will be sold or that the Minimum Offering will be
obtained. The Company may extend the Offering, without
notice to subscribers, for two (2) consecutive periods
of ninety (90) days each. However, the Company
reserves the right to utilize registered broker/dealers
and agents as sales persons and to pay a reasonable fee
or commission for their efforts; the Company has no
current plans to retain any such persons.
POTENTIAL CONTROL BY MANAGEMENT. Upon completion
of this Offering, the Organizers will own at least
approximately 17.60% of the outstanding Shares,
assuming the Maximum Offering is achieved, or at least
approximately 25.14%, assuming the Minimum Offering is
achieved. In addition, through their exercise of the
warrants to be granted to the Organizers, the
Organizers could own in the aggregate an additional
264,000 Shares. The Company has granted Charles S.
Conoley an option to purchase 3% of the number of
Shares actually sold pursuant to the Offering and is
considering the establishment in the near future of a
stock option plan for key employees and the directors
of the Company and the Bank. Under such plan options
with respect to 10% of the number of Shares actually
sold pursuant to the Offering could, in the aggregate,
be granted. Thus, the Organizers and officers of the
Company may, by virtue of their ownership of Shares,
exert substantial influence over selection of the Board
of Directors and the policies of the Company and the
Bank. The foregoing percentages may increase upon the
addition of new directors and officers who determine to
purchase Shares or if any Organizer determines to
purchase Shares in the Offering in addition to the
number of Shares he or she agreed to subscribe for,
which increase cannot be currently determined. See,
"MANAGEMENT," "PRINCIPAL SHAREHOLDERS" and "CERTAIN
TRANSACTIONS."
POTENTIAL DILUTION. The Common Stock offered
hereby is not subject to preemptive rights, so that
shareholders are not entitled to purchase additional
shares if Shares are purchased by others. The exercise
by any of the Organizers of his or her warrants, or the
exercise of stock options by officers, key employees
and directors of the Company or the Bank would dilute a
shareholder's percentage ownership interest in the
Company. The dilutive effect of the warrants to be
granted to the Organizers could also manifest itself in
that potential purchasers of the Company might be
discouraged from making the acquisition because the
existence of the warrants and options would require
that such potential purchasers pay substantially more
for the total stock of the Company than if the warrants
or options did not exist.
ANTI-TAKEOVER MEASURES. Certain provisions of the
Articles of Incorporation and the Bylaws of the Company
may discourage non negotiated takeover attempts, which
attempts certain shareholders might deem to be in their
best interest, and may tend to perpetuate existing
management. These provisions include the ability of the
Board of Directors to issue preferred stock and fix the
terms thereof in its sole discretion, staggered terms
for the Board or Directors, as well as the requirement
that a supermajority (two-thirds) of the holders of the
Shares approve (i) mergers and sales of substantially
all of the assets of the Company, (ii) amendments of
certain provisions of the Articles of Incorporation and
the Bylaws and (iii) removal of directors. See,
DESCRIPTION OF CAPITAL STOCK - Defensive Anti-Takeover
Provisions.
THE OFFERING
TERMS OF THE OFFERING
The Company is offering for sale a minimum of
1,050,000 Shares and a maximum of 1,500,000 Shares.
All subscription proceeds will be deposited in an
escrow account with the Escrow Agent pending acceptance
of subscriptions and completion of the Offering. The
expiration date of the Offering (as such date may be
extended, the "Expiration Date") will be the earlier of
the date all Shares offered hereby are sold or 5:00
p.m. Eastern time on June 30, 1999 (which period may be
extended for up to two 90 day periods by the Company
without notice to subscribers but not beyond December
31, 1999). If at least $5,250,000 of subscription
proceeds from the sale of the Minimum Offering are not
deposited with the Escrow Agent by the Expiration Date,
subscriptions will be canceled and all proceeds will be
returned promptly to subscribers in full without
interest.
Interest earned on all subscription proceeds will
be paid to the Company whether or not related
subscriptions are accepted or rejected or the Minimum
Offering is completed. The Company reserves 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.
The Company and the Bank require regulatory
approvals from the FRB, DBF and FDIC before the Bank
may commence banking operations. Such regulatory
approvals generally are conditioned upon the Company
and the Bank satisfying 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. The Company believes 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 by the Escrow Agent until (i) the Company
receives subscriptions for at least 1,050,000 Shares
and with proceeds to the Company of at least $5,250,000
after any commissions paid and (ii) all regulatory
approvals are received and the Board of Directors
resolves that the Company and the Bank have made
provisions that are adequate for satisfying (as they
determine in their reasonable discretion) any such
conditions within a sixmonth period. There is a
possibility, however, that the post-approval condition
referred to above would not be satisfied even if the
Offering is completed, the Shares are issued and the
proceeds are expended. This event could result in a
material loss to purchasers of the Shares. See, "RISK
FACTORS."
The Shares are being offered on behalf of the
Company by the directors and executive officers of the
Company and the Bank. Such persons will receive no
compensation for selling the 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 the Company has
employed no brokers or dealers in connection with the
sale of the Shares. However, the Company reserves 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 condition that the commissions paid not
exceed 8.0% of gross Offering proceeds and subject to
the condition that the Minimum Offering then be
increased to allow the proceeds to the Company to be
not less than $5,250,000 net of commissions paid. Such
broker-dealers may be deemed "underwriters" as such
term is defined under the Securities Act of 1933. As of
the date of this Prospectus, no broker-dealer has been
retained by the Company in connection with the sale of
the Shares offered hereby.
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 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 Company's
Board of Directors.
METHOD OF SUBSCRIPTION
A minimum subscription of 100 Shares ($500) has
been established by the Company for the Offering.
However, the Company reserves the right to accept
subscriptions for less than the minimum subscription,
in its sole discretion.
In order to purchase the Shares offered hereby a
prospective investor must:
(1) Complete and sign the subscription agreement
accompanying this Prospectus;
(2) 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
(3) 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.
All subscription payments will be promptly
deposited in an escrow account with the Escrow Agent.
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 as such, in no way endorses the purchase of
the Company's securities by any person.
The respective rights and obligations of the
Company and the Escrow Agent are set forth in the
certain Escrow Agreement, dated as of October 30, 1998.
SUBSCRIPTION ACCEPTANCE
Subscriptions are not binding until accepted by
the Company. Deposit of funds in the escrow account
pending satisfaction of the conditions listed above
shall not be deemed to be an acceptance of the
subscriptions to which the funds relate. The Company
reserves the right to accept or reject subscriptions,
in whole or in part, in its sole discretion. This
permits the Company to refuse to sell the 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, the Company 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 the Company rejects all or
a part of a subscription, the Escrow Agent will refund
to the subscriber by mail all or the appropriate
portion of the amount remitted with the subscription
without interest promptly after the occurrence of such
event. In the event the Company does not obtain
regulatory approval to become a bank holding company or
the Bank does not receive a permit to begin business,
all subscriptions will be returned to subscribers
promptly by mail in full without interest. All costs
and expenses of this Offering and of the organization
of the Company and the Bank in excess of interest
earned on subscription proceeds will be borne by the
Company (and thus by the Organizers) in the event
subscriptions are canceled.
Certificates representing the securities offered
hereby will be issued by the Company and mailed to
investors as soon as practicable after subscription
proceeds are released from the escrow account.
USE OF PROCEEDS
The Company has been funding organizational
expenses (for itself and the Bank) and Offering
expenses from the $108,000 capital contribution made to
the Company by the Organizers by purchasing, on or
about May 28, 1998, 21,600 Shares at $5 per Share. The
Company will also use advances from a $300,000 line of
credit to be obtained by the Company from SunTrust Bank
Central Florida, N.A. on or before November 20, 1998,
which has been guaranteed, on a several pro rata basis,
by the Organizers other than Messrs. Bennett and Miller
and the commitment for which has been received by the
Company on November 2, 1998 (the "Pre Opening Loan").
The Company 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 the regulatory
approvals are received by the Bank on or before
February 12, 1999, the FRB regulatory approval is
received by the Company on or before May 1, 1999 and
the Offering proceeds are released from escrow and the
Bank is capitalized on May 1, 1999.
Minimum Maximum
Offering Offering
-------- --------
Gross Offering
proceeds(1) $5,250,000 $7,500,000
Anticipated use of
proceeds by the Company:
Offering expenses(2) 94,585 94,585
Organizational expenses(3) 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(4) 275,863 275,863
Land and Bank
facility(5) 1,072,500 1,072,500
Furniture, fixtures and
equipment(6) 258,017 258,017
Working capital 3,393,620 4,518,620
--------- ---------
Total $5,000,000 $6,125,000
1 Assuming the sale of 1,050,000 Shares and
1,500,000 Shares, respectively, at a price of $5.00 per
Share.
2 Offering expenses consist of various filing fees,
printing expenses, escrow agent fees, and accounting
and legal fees and expenses. As stated above, these
expenses will have been funded by the Company from the
Organizers' capital contribution and advances from the
Pre-Opening Loan. In other words, proceeds of the
Offering will actually be used by the Company to redeem
that portion of the 21,600 Shares owned by the
Organizers and to repay this portion of the outstanding
balance of the Pre-Opening Loan attributable to these
expenses.
3 These expenses consist of certain consulting fees
and regulatory application fees.
4 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. As stated above, these expenses will have been
funded by the Company from the Organizers' capital
contribution and advanced from the Pre-Opening Loan.
In other words, proceeds of the Offering will actually
be used by the Bank to repay this amount to the Company
so that the Company may redeem that portion of the
21,600 Shares owned by the Organizers and repay that
portion of the outstanding balance of the Pre Opening
Loan attributable to these expenses.
5 Subject to certain contingencies, the Company 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. Management anticipates 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. The purchase price of the
land and a portion of the architectural and engineering
fees ($8,500) will be incurred by the Company before
May 1, 1999. Thus, proceeds of the Offering shown here
as used by the Bank will actually be used by the Bank
to repay this amount to the Company so that the Company
may redeem that portion of 21,600 shares owned by the
Organizers and to repay that portion of the outstanding
balance of the Pre Opening Loan attributable to these
costs.
6 The estimate is based on management's previous
experience in opening a banking facility.
The above table contains estimates only and, as
stated above, 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 its capital to facilitate
growth and expansion of its business, the Company does
not anticipate paying cash dividends on the Shares in
the immediate future. The payment of cash dividends by
the Company will be subject to determination by the
Board of Directors and will depend on favorable
operating results, financial conditions, tax
considerations, and other relevant factors. At present,
the only source of funds from which the Company would
pay cash dividends would be dividends paid to the
Company by the Bank. The Bank similarly does not
anticipate paying cash dividends to the Company 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."
No assurances can be given that any dividends will
be declared by the Company or, if declared, what the
amount of the dividends will be or whether such
dividends, once declared, would continue.
BUSINESS
THE COMPANY
The Company was incorporated in the State of
Florida on May 27, 1998, under the name Manasota Group,
Inc. In anticipation of the filing for regulatory
approval for the Bank, the Company amended its Articles
of Incorporation, on October 2, 1998, changing its name
to Horizon Bancorporation, Inc. The Company's Articles
of Incorporation were further amended 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. The Company will
file an application with the FRB for authority to
become a bank holding company on or about March 1,
1999.
The Company's temporary offices are currently
located at Suite C, 3005-26th Street West, Bradenton,
Florida 34205, and its telephone number is (941) 753-
2265. The Company's permanent offices will be located
at 901-53rd Avenue East, Bradenton, Florida 34203, at
the Bank's proposed main banking facility.
The Company 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 the Company 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 the Company has no present plans
to engage actively in any other business activities,
management anticipates studying the feasibility of
establishing or acquiring subsidiaries to engage in
other business activities to the extent permitted by
law.
The principal assets of the Company will consist
initially of the net proceeds of the Offering and the
Bank's stock. These assets will be used to fund the
initial activities of the Company. The Company's needs
for 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
principally 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 by management, the Bank's capital needs
could exceed the amount of capital retained by the
Company from the Offering. Management believes that
additional capital would be available through the sale
of additional securities or debt offerings should the
need for additional capital arise.
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
by the Company from the net proceeds of the Offering by
purchasing 1,000,000 shares of the Bank's common stock
at a price per share 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 by the DBF for the Bank.
Upon the issuance of a permit to begin business
from the DBF, obtaining insurance of its deposit
accounts from the FDIC and obtaining approval of
membership in the Federal Reserve System from the FRB,
the Bank will engage in attracting deposits from the
general public and will make commercial, consumer and
real estate loans. The permit to begin business will be
issued to the Bank when it has satisfied the conditions
in the DBF's approval of the Bank's charter
application, as established by the DBF following such
preliminary approval. Customer deposits with the Bank
will be insured to the maximum extent provided by law
through the FDIC. It is currently anticipated 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 as
described below and a proprietary business plan that
were included in their applications to the DBF, FDIC
and the FRB. 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. All banking services will be continually
evaluated with regard to their profitability and
efforts will be made to modify the Bank's business plan
if the plan does not prove successful.
Management believes that the Bank's business plan
will make the Bank profitable by the end of the second
year of operations. However, that business plan
forecasts more than 12 months of unprofitable
operations and it has been the experience in the
banking industry for new financial institutions to lose
money in the first 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.
Competition may be further increased 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 the Company and the Bank pursuant to a
consulting agreement and Terilynn Chapin, Corporate
Administrator. The Company, 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 the Company expands
its operations into other activities permitted by law
for a bank holding company, it is unlikely that the
Company will have many employees. During the first year
of operations, management anticipates 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, management
anticipates 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, the Company 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. The Company
will use this office as its headquarters and for "back
office" activities of the Bank pending opening of the
Bank's main banking facility.
Effective September 30 1998, the Company has
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 the Company's 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. Total construction costs, including
landscaping and site improvements and architectural and
engineering fees, are expected to 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. Furniture, fixtures and
equipment for the main banking facility are estimated
to cost approximately $258,017.
A modular office will be installed 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.
Management believes 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 intends to 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
General Credit Risk. 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 DBF 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 DBF, may
establish a lower lending limit.
The Bank will maintain an allowance for loan
losses based upon management's assumptions and
judgments the ultimate collectibility of loans in its
portfolio and provide an allowance for possible loan
losses based upon a percentage of the outstanding
balances and for 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 outstanding loan balance because of
damage to the collateral or other loss of value and 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, management will seek to match
maturities and rates of loans and the investment
portfolio with those of deposits, although exact
matching is not always possible. Management will seek
to invest the largest portion of the Bank's assets in
commercial, consumer and real estate loans. The Bank
anticipates 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.
It is anticipated 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: (i) to complement
strategies developed in assets/liquidity management,
including desired liquidity levels; (ii) to maximize
after-tax income from funds not needed for day to-day
operations and loan demand; and (iii) to provide
collateral necessary for acceptance of public funds.
Management anticipates that its 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
The following summaries of statutes and
regulations affecting bank holding companies and banks
do not purport to be complete. Such summaries are
qualified in their entirety by reference to such
statutes and regulations.
SUPERVISION AND REGULATION OF THE COMPANY
The Company 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, the
Company will be required to file with the FRB annual
and semi-annual reports and information regarding its
business operations and those of the Bank. The Company
and the Bank will also be subject to examination by the
FRB.
A bank holding company is required by the federal
Bank Holding Company Act to obtain approval from the
FRB prior to (i) acquiring, directly or indirectly,
ownership of more than 5% of the voting stock of or
control of any bank that is not already majority owned
or controlled by that bank holding company, or more
than 5% of the voting shares of any company that is not
a bank and (ii) engaging in any business other than
banking or managing, controlling or furnishing services
to banks and other subsidiaries authorized by the
statute. The FRB is authorized to approve, among other
things, 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. Notice to and
review by the FRB of such activities would be necessary
before the Company could engage in such activities.
The FRB is empowered to differentiate between
activities that are initiated de novo by a bank holding
company or a subsidiary and activities commenced by
acquisition of a going concern.
A bank holding company may be compelled by bank
regulatory authorities to invest additional capital in
the event the subsidiary bank experiences either
significant loan losses or rapid growth of loans or
deposits. In addition, a bank holding company may be
required to provide additional capital to other banks
that it acquires as a condition to obtaining the
approvals and consents of regulatory authorities in
connection with such acquisitions. FRB policy requires
a bank holding company to act as a source of financial
strength and to take measures to preserve and protect
bank subsidiaries in situations where additional
investments in a troubled bank may not be warranted.
As a bank holding company, the Company is subject
to capital adequacy guidelines as established by the
FRB. Under the FRB's current risk-based capital
guidelines for bank holding companies, the minimum
required ratio for total capital to risk weighted
assets is 8 percent (of which at least 4 percent must
consist of Tier 1 capital). Tier 1 capital (as defined
in regulations of the FRB) consists of common and
qualifying preferred stock and minority interests in
equity accounts of consolidated subsidiaries, less
goodwill and other intangible assets required to be
deducted under the FRB's guidelines.
The FRB's guidelines apply on a consolidated basis
to bank holding companies with total consolidated
assets of $150 million or more. For bank holding
companies with less than $150 million in total
consolidated assets (such as the Company), the
guidelines will be applied on a bank only basis, unless
the bank holding company is engaged in nonbanking
activity involving significant leverage or has
significant amount of debt outstanding that is held by
the general public. The FRB has stated that risk-based
capital guidelines establish minimum standards and that
bank holding companies generally are expected to
operate well above the minimum standards.
Following completion of the Offering, the Company
may also be subject to the requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"),
which include, without limitation, 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 DBF
and the FRB. Under Florida law and DBF regulations, the
Bank may pay cash dividends only to the extent of the
sum of (i) current period net profits plus (ii) (A) 80%
of its cumulative retained (i.e. undistributed) net
profits for the preceding two years or (B) with the
approval of the DBF, 80% of its cumulative retained
net profits for a period longer than two years. No
dividend is permitted if (a) 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 (b) 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 FRB 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 Federal Reserve System, 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 FRB'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). Tier 1 capital of member banks generally
consists of (i) common stockholders equity; (ii) non-
cumulative perpetual preferred stock and related
surplus and (iii) minority interests in the equity
accounts of consolidated subsidiaries.
In addition, the FRB requires the maintenance of a
minimum ratio of Tier 1 capital to total assets of a
member bank. This capital measure is generally
referred to as the leverage capital ratio. The FRB has
established a minimum leverage capital ratio of 4
percent if the FRB 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,
good earnings and, in general, is considered a strong
banking organization and rated Composite 1 under the
Uniform Financial Institutions Rating Systems.
Member banks not satisfying any of these criteria
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, such member
banks must maintain a 5 percent ratio.
MONETARY POLICY
Banking is a business that depends on interest
rate differentials. In general, 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 and of the
Company are 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 FRB. The FRB 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 Federal Reserve System. The actions of the FRB
in these areas influence the growth of bank loans,
investments and deposits and also affect interest rates
charged and paid on deposits. The nature and impact of
any future changes in monetary policies cannot be
predicted with certainty.
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 the Company and the Bank 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 the Company in more direct competition with other
financial institutions, including mutual funds,
securities brokerage firms, insurance companies and
investment banking firms. The effect of any such
legislation on the business of the Company cannot be
accurately predicted. The Company cannot predict what
other legislation might be enacted or what other
regulations might be adopted, and if enacted or
adopted, the effect thereof.
MANAGEMENT
DIRECTORS AND EXECUTIVE OFFICERS
The members of the Board of Directors of the
Company 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 the Company and the Bank.
Name (Age)
*Position With Company
**Position With Bank
Clarence R. Urban (53)
*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
41-68th 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
The directors of the Company and the Bank, other
than Charles S. Conoley, have not received and will not
receive fees or other compensation in connection with
the organization of the Company and the Bank. The
directors of the Company and the Bank 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 the Company have entered
into a Consulting Agreement, dated June 8, 1998 (the
"Consulting Contract") describing Mr. Conoley's duties
on behalf of the Company 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 the Company
successfully completes 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, the Company, the Bank and Mr.
Conoley entered into an Employment Agreement (the
"Conoley 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 Conoley Employment Agreement, Mr.
Conoley would serve as Chief Executive Officer and
President of the Company 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: (i) failure of the Company to
complete the Minimum Offering by December 31, 1999;
(ii) Mr. Conoley's death; (iii) Mr. Conoley's complete
disability, or (iv) a circumstance considered "for
cause," including an act or conduct considered by the
Board of Directors to be inappropriate and 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 Conoley 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 Conoley 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
the DBF, the FDIC or the FRB has made a determination
that such acquisition constitutes or will constitute
control of the Bank.
LIMITATION ON DIRECTORS' LIABILITY
The Company's Articles of Incorporation contain a
provision which, in accordance with Florida law,
eliminates or limits the personal liability of
directors to the Company and its shareholders for
monetary damages for certain breaches of their duty of
care or other duty. This provision provides that a
director of the Company shall 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 (i) any appropriation, in violation of
the director's duties, of any business opportunity of
the Company, (ii) acts or omissions not in good faith
or which involve intentional misconduct or a knowing
violation of law, (iii) authorization of improper
dividends or redemptions, or (iv) 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. The
Board of Directors believes this provision in the
Company's Articles of Incorporation is essential to
maintain and improve the ability of the Company to
attract and retain competent directors.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 (the "Act") may be
permitted to directors, officers and controlling
persons of the issuer pursuant to the foregoing
provisions or otherwise, the Company has been advised
that in the opinion of the SEC such indemnification
against public policy as expressed in the Act 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 "Contribution
Agreement"), the Organizers listed therein (except
Warren E. Gagner and Bruce R. Woodruff) have agreed to
subscribe for 264,000 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 the Company'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 undertaken prior to the date hereof and
will have undertaken after such date if the Offering is
not successful, as well as an incentive for them to
serve as directors of the Company and the Bank, if the
Minimum Offering is achieved and the Bank opens for
business, each Organizer will receive a Warrant (herein
so called). 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 the
Offering Price.
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 (a "Vesting Date"), so long as the
Organizer has served continuously as a director of the
Company and the Bank from its opening until the Vesting
Date and has attended a minimum of 75% of the Board of
Directors meetings each year 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 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 the Company 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.
The Company's Board of Directors is considering
the establishment of a stock option plan under which
stock options would be issued to key employees of the
Company 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 the Company, Bank Resources, Inc. and E.
Byron Richardson, dated June 22, 1998, Mr. Richardson
will receive, upon receipt by the Bank from the DBF 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 the
Company, the Organizers have previously subscribed for
21,600 shares of the Company's Common Stock at a price
of $5.00 per share ("Organizational Shares"). The
proceeds from the sale of Organizational Shares have
been used for the purpose of paying Offering,
organizational and other expenses of the Company and
the Bank incurred prior to release of the Offering
proceeds from the escrow account. Upon release of the
Offering proceeds from escrow, the Company will redeem
all of the 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 by and among the
Company and the Organizers, dated as of October 28,
1998.
LENDING AND OTHER MATTERS
It is anticipated that the Company's 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 shall require the prior
approval of a majority of the entire Board of Directors
as provided under Florida law. All future transactions
with affiliates of the Company and the Bank 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 (i) 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; (ii) 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; (iii) 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 (iv) 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
shall 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
The Company is authorized by its 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 the
Company.
Shareholders have no preemptive or other
subscription or conversion rights and there are no
redemption or sinking fund provisions with respect to
such Shares. The Shares offered by this Prospectus,
upon payment therefor, will be fully paid and non
assessable.
PREFERRED STOCK
The Company 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 Company's 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 the Company 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 the Company and its
shareholders.
TRANSFER AGENT AND REGISTRAR
Unless the Company is 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 of the
Company.
REPORTS TO SHAREHOLDERS
The Company intends to furnish its 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, the Company will
have a minimum of 1,050,000 Shares and 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, as amended (the "1933
Act"), except for Shares purchased by persons who, as a
result of positions with the Company (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 promulgated under the
1933 Act). The Shares owned by such "affiliates" of the
Company will be subject to resale restrictions under
the 1933 Act. All of the Shares issuable upon exercise
of options granted by the Company will be "restricted
securities" (i.e., securities which have not been
registered under the 1933 Act). Securities held by
"affiliates" and "restricted securities" may be
eligible for sale in the open market in accordance with
the provisions of Rule 144 promulgated under the 1933
Act.
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 the Company's Articles of
Incorporation and Bylaws described below might be
deemed to have a potential defensive "anti-takeover"
effect. The Board of Directors of the Company believes
that the provisions described below are prudent and
will reduce the Company's vulnerability to takeover
attempts and certain other transactions which may not
be negotiated with and approved by the Board. The Board
of Directors believes that it is in the best interest
of the Company and its 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 the view of the Board of Directors that
these "anti-takeover" provisions should not discourage
persons from proposing an acquisition or other
transaction at prices reflective of the true value of
the Company which is in the best interest of all
shareholders. Notwithstanding these provisions, the
Board of Directors has a fiduciary obligation to act in
the best interest of the shareholders and the Company
in determining corporate action.
Directorships
The Company's 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 the election of each class in successive
years. The Company's 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
The Company'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 of the Company entitled
to vote. However, if two-thirds of the directors then
in office approve the removal, then the vote of the
holders of a majority of the outstanding voting stock
of the Company is required to remove a director.
Special Meetings of Shareholders
The Company'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 of the Company.
No Action By Written Consent
The Company'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
The Company's Articles of Incorporation provide
that the vote of holders of at least two-thirds of the
outstanding voting stock of the Company is required to
approve certain mergers, consolidations or dispositions
of assets of the Company 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 of the Company is required
to approve such transaction.
Amendment of the Articles of Incorporation
The Company'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 of the Company.
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 of the Company.
Amendment of the Bylaws
The Company'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 of the Company.
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
the Company from making a tender offer or other attempt
to gain control of the Company.
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
The Company has filed a Registration Statement
under the Securities Act of 1933, as amended, with
respect to the securities offered hereby with the
Securities and Exchange Commission (the "Commission").
As permitted by the Rules and Regulations of the
Commission, 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 the
Company and the securities offered hereby. 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 the Company,
can be obtained upon payment of the fees prescribed by
the Commission, or may be examined at the offices of
the Commission without charge, at (i) the public
reference facilities in Washington, D.C. at Judiciary
Plaza, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549, (ii) the Northeast Regional Office in New
York at 7 World Trade Center, Suite 1300, New York, New
York 10048, and (iii) the Midwest Regional Office in
Chicago, Illinois at 500 West Madison Street, Suite
1400, Chicago, Illinois 66661-2511. The Commission
maintains a Web site that contains reports, proxy and
information statements and other information regarding
registrants that file electronically with the
Commission (the address of such site is
http://www.sec.gov).
The Company 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 the Company's principal executive
offices.
INDEX TO FINANCIAL STATEMENTS
Independent Auditor's Report......................28
Balance Sheet as of October 31, 1998..............29
Statement of Operations from Date of Inception,
May 27, 1998 to October 31, 1998................30
Statement of Changes in Stockholders' Equity
from Date of Inception, May 27, 1998,
to October 31, 1998.............................30
Statement of Cash Flows from Date of Inception,
May 27, 1998, to October 31, 1998...............31
Notes to Financial Statements.....................32
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 the Total
$.01 Paid-in- Development Stockholders'
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 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.
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.
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.
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, AND, IF GIVEN OR MADE, SUCH OTHER
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE COMPANY. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR AN
OFFER TO BUY, any securities other than the shares of
common stock to which it relates, or any offer of such
shares of common stock to any person in any state or
other jurisdiction in which such offer is unlawful.
Neither the delivery of this prospectus nor any sale
made hereunder shall, under any circumstances, create
any implication that there has been no change in the
affairs of the company since the date hereof or that
information contained herein is correct as of any time
subsequent to any of the dates as of which information
is furnished herein or the date hereof. However, during
the period in which offers or sales are being made
hereunder, the company is required to update the
prospectus to reflect any facts or events arising after
the effective date of the registration statement filed
with the securities and exchange commission which
represent a fundamental change in the information set
forth in the registration statement.
Until March 2, 1999, all dealers effecting
transactions in the common stock, whether or not
participating in this distribution, may be required to
deliver a prospectus. This delivery requirement is in
addition to the obligation of dealers to deliver a
prospectus when acting as underwriters and with respect
to their unsold allotments or subscriptions.
(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 Registration Statement to be signed on its behalf
by the undersigned, in the City of Bradenton, State of
Florida, on November 24, 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 Registration Statement has been signed by
the following persons in the capacities and on the date
indicated:
Signature Title
Date
/s/ President and Chief 11/24/98
- ----------------- Executive, Financial and
Charles S. Conoley Accounting Officer/Director
/s/ Director, Chairman of 11/24/98
- ----------------- the Board of Directors
Clarence R. Urban
/s/ Director 11/24/98
- -----------------
Thomas C. Bennett, Jr.
/s/ Director 11/24/98
- -----------------
Michael Shannon Glasgow
/s/ Director 11/24/98
- -----------------
C. Donald Miller, Jr.
/s/ Director 11/24/98
- -----------------
Stephen C. Mullen
/s/ Director 11/24/98
- -----------------
David K. Scherer
/s/ Director 11/24/98
- -----------------
Bruce E. Shackelford
/s/ Director 11/24/98
- -----------------
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
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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:
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Deborah Moreya
First Vice President
