SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
File No. 333-71773
FORM SB-1 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
AMENDMENT NO. 1
Horizon Bancorporation, Inc.
(Name of Small Business Issuer in Its Charter)
Florida 6711 65-0840565
(State of (Primary Standard (I.R.S. Employer
Jurisdiction of Industrial Identification
Incorporation or Classification No.)
Organization) Code Number)
Suite C, 3005-26th Street West., Bradenton, Florida 34205; (941) 753-2265
- ----------------------------------------------------------------------------
(Address and Telephone Number of Principal Executive Offices)
Charles S. Conoley with a copy to:
Suite C, 3005-26th Street Daniel D. Dinur,
West Esq.
Bradenton, Florida 34205 One Lakeside Commons
(941) 753-2265 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.
[ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier registration statement for the same Offering.
[ ]
If this form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier registration statement for the same Offering.
[ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, check the following box. [ ]
Calculation of Registration Fee
Title of Dollar Proposed Proposed Amount of
Each Class Amount To Maximum Maximum Registration
of Be Offering Aggregate Fee
Securities Registered Price Per Offering
To Be Unit Price
Registered
Common $6,139,991 $5.50 $6,139,991 $1,706.92
Stock $1,340,009 $5.50 $1,340,009 372.52
Units
Common N/A N/A N/A N/A
Stock
underlying N/A N/A N/A N/A
the Units
Warrants
underlying
the Units ---------- ---------- ---------
Total $7,480,000 $7,480,000 $2,079.44
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 1A) and Prospectus
SB-1 Items Location or Heading in
Prospectus
1. Inside Front and Outside Back Inside Front and Outside
Cover Pages of Prospectus......Cover Pages; Additional
Information
2. Significant Parties............Management; Principal
Shareholders
3. Relationship with Issuer of
Experts Named in Registration
Statement......................Not Applicable
4. Legal Proceedings..............Not Applicable
5. Changes in and Disagreements
with Accountants Not Applicable
6. Disclosure of Commission Position
on Indemnification for
Securities Act Liabilities.....Management
Model B Items
1. Cover Page.....................Front Cover Page
2. Distribution Spread............Front Cover Page
3. Summary Information, Risk Factors
and Dilution...................Prospectus Summary;
Risk Factors
4. Plan of Distribution...........The Offering
5. Use of Proceeds to Issuer......Use of Proceeds
6. Description of Business........Prospectus Summary;
Business; Supervision
and Regulation
7. Description of Property........Business
8. Directors, Executive Officer
and Significant Employees......Management
9. Remuneration of Directors
and Officers...................Management
10. Security Ownership of Certain
Security Holders
and Management.................Principal Shareholders
11. Interest of Management and
Others in Certain
Transactions...................Certain Transactions
12. Securities Being Offered.......Description of Capital
Stock; Dividend Policy
13. Financial Information
Required in Prospectus.........Financial Statements
Initial Public Offering
Prospectus
Horizon Bancorporation, Inc. is offering:
To the public: To Horizon Bancorporation's
1,116,362 shares of common organizers:
stock at $5.50 per share 243,638 units at $5.50 per
unit. Each unit consists of:
* one share of common
stock; and
* one warrant to purchase
a share of common stock.
Horizon We are a newly-formed bank holding
Bancorporation, Inc. company. Our business will be to own
Suite C, 3005-26th the shares of Horizon Bank, a newly-
Street, West chartered Florida state bank in
Bradenton, Florida Bradenton, Manatee County, Florida.
32405
This is our initial public offering
and no public market currently
exists for our shares. The offering
price may not reflect the market
price of our shares after the
offering.
If the market price of our shares
goes below $5 and the shares are not
then listed on an exchange, brokers
selling shares will be required to
give buyers additional information.
This requirement may make it more
difficult for you to sell shares.
The Offering
Total Total
Per Share (Minimum) (Maximum)
Public Price $ 5.50 $4,290,000 $6,139,991
Less: Discounts
and commissions$ 0.16 128,700 276,699
Plus: Proceeds
from units 1,340,009 1,340,009
---- --------- ---------
Total proceeds to
Horizon before
expenses $ 5.34 $5,501,309 $7,203,301
We will be offering the shares and the units through Attkisson,
Carter & Akers as sales agent. The sales agent will receive a 3%
commission for each share sold and no commission for any units
sold. At our request, the sales agent may sell shares through a
group of brokers called a "syndicate," and will receive an 8%
commission. In our computation of the discounts and commissions
in the above table we assumed that shares over the minimum will
be sold through a syndicate of brokers.
This investment involves a high degree of risk. You should
purchase shares only if you can afford a complete loss. See "Risk
Factors" beginning on page 4.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these
securities, or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
ATTKISSON, CARTER & AKERS
The date of this prospectus is
February 9, 1999
PROSPECTUS SUMMARY
This summary highlights selected information contained
elsewhere in this prospectus. To understand this offering fully,
you should read the entire prospectus carefully, including the
risk factors and financial statements.
Horizon and Horizon Bank
Offices: Horizon Bancorporation, Inc., Suite C, 3005-26th Street
West, Bradenton, Florida 34205, telephone (941) 753-
2265.
Our business: We are a newly formed bank holding company. Our
business will be to own the shares of a newly-chartered
Florida state bank to be located in Bradenton, Manatee
County, Florida, which will be called Horizon Bank .
Horizon Bank will operate as a typical community bank,
offering general commercial banking services to medium
to small businesses and middle class customers in
Manatee County.
Our history and
immediate
future plans: Horizon Bancorporation, Inc. was organized on May
27, 1998. On October 12, 1998, Horizon Bank filed an
application for a charter to be granted by the Florida
Department of Banking and Finance and an application
for insurance of its deposits to be issued by the FDIC.
Once the charter is granted and insurance is issued,
Horizon will apply to the Board of Governors of the
Federal Reserve System for authority to become a bank
holding company and Horizon Bank will apply to the
Federal Reserve for membership as a state member bank.
We hope to secure all regulatory approvals by the end of April
1999. At that point, if all of the units and at least
the minimum number of shares are sold, Horizon Bank
will construct a 5,000 square foot building to house
its main banking facility and Horizon's headquarters at
901-53rd Avenue, East, in Bradenton, on land which is
currently under contract. During construction, which is
expected to last about six months, Horizon Bank will
operate at the site from a temporary modular facility.
In other words, we expect that Horizon Bank will begin
operations in a modular facility at the beginning of
May 1999 and in its permanent facility by the beginning
of November 1999.
The organizers
and
management: Horizon was organized by nine businessmen residing
and doing business in Manatee and Sarasota Counties,
Florida. These organizers invested $108,000 in Horizon,
by buying 21,600 shares at $5 per share. Also, seven of
the organizers have guaranteed a $300,000 line of
credit from a local bank to Horizon. These funds are
being used by Horizon to pay organizational and
offering expenses. The organizers have also agreed to
serve as directors of Horizon and Horizon Bank, and
will not be compensated for their services until
Horizon Bank becomes profitable. For the names of and
biographical information about the organizers, see
"Management--Directors and Executive Officers."
If the offering is unsuccessful, the organizers will
lose their $108,000 investment and will be obligated to
repay the line of credit. It is in recognition of these
financial risks and their willingness to serve as
directors without pay until Horizon Bank is profitable
that the organizers can purchase the units. The
warrants that are part of the units will vest over
three years beginning with the date Horizon Bank opens
for business. See, "Certain Transactions."
One of the organizers, Charles S. Conoley, has fourteen
years banking experience and will serve as the
President and Chief Executive Officer of Horizon and
Horizon Bank. As part of his incentive compensation,
Mr. Conoley will be granted, when Horizon Bank opens
for business, options to purchase for $5.50 per share a
number of shares equal to 3% of the total number of
shares and units sold in the offering. See, "Management-
-Remuneration of Directors and Officers."
The Offering
Securities offered 1,116,362 shares of common stock
and
243,638 units consisting of one
share of common stock and one
warrant to purchase a share of
common stock.
Shares outstanding at
October 31, 1998 21,600 owned by the
organizers. These shares will be
repurchased by Horizon if the
offering is successful.
Shares to be outstanding
after the offering 1,023,638, if all
the units and only the 780,000
shares minimum offering are sold,
or
1,360,000, if all the units and the
1,116,362 shares maximum offering
are sold.
Total public price $5,630,009, if all the units and
the 780,000 shares minimum offering
are sold, or
$7,480,000, if all the units and
the 1,116,362 shares maximum
offering are sold.
Estimated offering expenses $110,585
Net proceeds $5,501,309, if the units and the
minimum offering are sold, assuming
a 3% commission on the 780,000
shares sold, or
$7,203,301, if the units and the
maximum offering are sold, assuming
a 3% commission on the minimum of
780,000 shares sold and an 8%
commission on the remaining 336,362
shares.
Plan of Distribution We will sell shares and units
through Attkisson, Carter & Akers,
the sales agent. The sales agent
will receive a 3% commission on
each share sold, except for the
units sold to the organizers and
shares sold to relatives of the
organizers the names of which are
given by the organizers to the
sales agent in advance. Also, at
any time, we can request that the
sales agent sell the shares
remaining unsold at that time
through a syndicate of brokers. If
this happens, we will pay the sales
agent and the brokers involved an
8% commission on shares sold by
them. If we request that the sales
agents sell through a syndicate of
brokers before the 780,000 minimum
shares are sold, we will increase
the minimum offering so that the
net proceeds still end up not less
than $5,501,309.
Intention by the organizers
to buy shares The organizers intend to buy a
total of 243,638 shares by way of
buying the units.
Terms of the offering You will subscribe for the shares
and the units by sending the
purchase price to an escrow agent
retained by us. The offering will
terminate and all subscription
funds will be returned by the
escrow agent to the subscribers
without interest if we have not
sold all the units and the minimum
of 780,000 shares by June 30, 1999.
We may, however, extend this
deadline, but not beyond December
31, 1999. The minimum investment by
one subscriber is 100 shares and
maximum investment is 9.9% of the
total shares outstanding after the
offering, except that the 9.9%
maximum limit may be increased with
the consent of 75% of the members
of the Board of Directors.
Use of proceeds We will use the proceeds of the
offering as follows:
* To pay the offering expenses;
* To repurchase, at the redemption price of $5
per shAre, the
21,600 shares owned by the organizers;
* To repay the line of credit guaranteed by
the organizers;
* $5,280,000 to capitalize Horizon Bank; and
* To add to the working capital of Horizon.
If the ultimate net proceeds of the
offering are greater than
$5,501,309, then we will add 50% of
the excess over $5,501,309 to the
capital of Horizon Bank and the
remaining 50% to the working
capital of Horizon.
RISK FACTORS
Investing in Horizon's shares is very risky. You should
invest only if you determine that you can bear a complete loss of
your investment. In your determination, you should carefully
consider the following factors, among others:
Because the We fixed the offering price at $5.50 per
offering share on the basis of the start-up capital
price cannot needs of Horizon Bank and offering prices
be supported of other newly-organized bank holding
by value of companies. This price bears no relationship
assets or to assets, book value, earnings or other
earnings you established criteria of value. As a result,
may be you may be overpaying for the shares.
overpaying
for the
shares.
We will be a Horizon, the issuer of your shares, is a
new banking new business whose success will depend on
business in a Horizon Bank's operations. Horizon Bank is
competitive also a new business that will be successful
environment; only if the difference between the income
losses are earned on loans and investment securities
likely to and from fees minus the interest paid on
occur for at deposits and other sources of funds and
least the general operating expenses is a positive
first full difference.
year of
operations
In order to create and maintain this
positive difference, commonly called
"spread," Horizon Bank will have to contend
We could be with the following:
at a
disadvantage * As a new bank in an established
when market, Horizon Bank will be competing for
competing for deposits with many older financial
deposits. institutions. These institutions may have
competitive advantages over Horizon Bank
because they have greater capitalization
and other resources and they can offer
potential depositors higher lending limits
and certain services which Horizon Bank may
not be able to offer. We can offer you no
In making assurance that Horizon Bank will be
loans, we successful in attracting the deposits it
could be will need to sustain its growth.
dealing with
unfamiliar, * By the same token, as a new bank,
smaller Horizon Bank will be competing for loan
borrowers - business with older and larger financial
who could institutions. Unlike these institutions,
cause Horizon Bank will be creating lending
excessive relationships with customers seeking to
loan losses. establish new banking relationships and
without a previous history with Horizon
Bank. Moreover, small to medium businesses
and middle-class individual businesses
will, by and large, have less capacity than
large businesses or more wealthy
individuals to repay loans in the event of
an economic downturn or other adversity.
As a For all these reasons, it will be several
financial years before the quality of Horizon Bank's
institution loan portfolio can be fully evaluated and
we could be we can offer you no assurance that Horizon
affected Bank will not incur excessive loan losses.
adversely by
global * The spread earned by Horizon Bank will
economic be materially affected not only by trends
trends and in the economy of its primary source area,
policies. Manatee County, but also national and
international trends and fluctuations. For
example, factors like interest rates and
money supply policies of the Federal
Reserve, inflation, recession,
unemployment, natural resource prices and
Because we policies, international conflicts and other
will be factors beyond Horizon Bank's control may
competing for adversely affect that spread.
personnel
with larger * Success in a commercial banking
financial business is particularly dependent on
institutions, employing experienced and service-oriented
we may not be personnel at all levels. We intend and are
able to already making efforts to hire experienced
attract good lending and operations officers, but have
employees. no assurance that we can staff Horizon Bank
with appropriate personnel when Horizon
Bank opens for business. We do have an
employment agreement with Charles S.
We could be Conoley, who is a very experienced banker
affected by and who is one of the organizers and our
unexpected President and Chief Executive Officer.
competition
if the law * Because of the Glass-Steagal Act, the
changes. commercial banking business has enjoyed
legal barriers to entry by non-banking
enterprises. It is possible that the United
States Congress will repeal the Glass-
Steagal Act in the near future. If this
happens, Horizon Bank may face even greater
We do not competition in its primary service area
expect to be from large, well-capitalized enterprises,
profitable while at the same time, as entities which
until the are tightly regulated, Horizon Bank and
second full Horizon could not diversify into a non-
year of banking business.
operation.
* We do not expect to be profitable on a
current basis over an entire year until at
least the second full year of operations.
Horizon Bank will be a so-called
"community" bank. In other words, we will
exploit personal contacts by our directors,
officers and our shareholders, as well as
appropriately focused advertising and
promotional activities, to appeal to
businesses and individuals in search of the
personalized services likely to be offered
by an independent, locally-owned and
headquartered commercial bank. Our overall
identity as a community financial
institution should allow us to compete
effectively and profitably in spite of the
factors listed immediately above. However,
we cannot assure you that we will
ultimately be successful.
You may have Your shares will be freely transferable.
difficulty in However, we are a new company without a
selling your public market for its shares and we do not
shares expect an active trading market for the
because of shares to be developed for at least one
the absence year after the offering. As a result, if
of a public you desire to sell your shares you may be
market or required to locate a buyer on your own and
because the may not be able to do so.
shares may be
"penny Also, even if a public market develops and
stock." you are trying to sell your shares through
a broker, if the trading price falls below
$5 per share and the shares are then not
listed on an exchange, your shares will be
"penny stock." The broker you asked to
sell your shares will have to give the
buyer additional information and may be
unwilling to help you make the sale. As a
result, you may be required to locate a
buyer on your own and may not be able to do
so.
Horizon's Your interests as an investor in Horizon
management may be different from Horizon's management.
may have Yet, management will exercise significant
interests control over the selection of the Board of
that are Directors and Horizon's policies. They will
different be able to exercise control because after
from yours the offering the officers and directors
and will own between 17.91% and 23.80% of the
management total shares outstanding, depending on the
controls number of shares sold in the offering and
Horizon. the organizers could, through the exercise
of their warrants, acquire an additional
243,638 shares
It will be Our Articles of Incorporation and Bylaws
difficult for contain certain anti-takeover provisions.
anyone to These provisions include:
take over * The power vested in the Board of
Horizon. Directors to fix the terms of any preferred
stock in its sole discretion;
* Staggered terms for the directors
where only a third of them stands for re-
election in any given year; and
* The requirement that two-thirds of the
shareholders approve mergers and similar
transactions, amendments to the Articles of
Incorporation and Bylaws and removal of
directors.
These provisions may discourage non-
negotiated takeover attempts which you
might consider to be in your best interest.
They will also tend to perpetuate existing
management. See, "Description of Capital
Stock - Defensive Anti-takeover
Provisions."
Your Horizon Bank does not have preemptive
investment rights. This means that you will not be
may be entitled to buy additional shares if shares
diluted and are bought by others. As a result, when the
acquirers may organizers exercise their warrants and key
be employees or directors exercise their stock
discouraged options, your interest in Horizon will be
from diluted. Also, because potential acquirers
acquiring would have to pay more for the total stock
Horizon of Horizon due to the warrants and options,
because of they might be discouraged from making the
the warrants acquisition.
and stock
options.
We do not Horizon can only pay dividends if it
plan to pay receives dividends from Horizon Bank and
dividends. there will be regulatory restrictions on
the amount of dividends Horizon Bank can
pay. See, "Dividend Policy." Also, we
intend to preserve capital to facilitate
growth and expansion. As a result, you
should not expect receiving dividends in
the immediate future.
Special Note Regarding Forward-looking Statements
Some of the statements contained in this prospectus discuss
future expectations or state other "forward-looking" information.
Those statements could be affected by known and unknown risks,
uncertainties and other factors that could cause the actual
results to differ materially from those contemplated by the
statements. The forward-looking information is based on various
factors and was derived using numerous assumptions.
Important factors that may cause actual results to differ
from projections include, for example,
* the success or failure of our efforts to implement Horizon
Bank's business plan;
* the effect of changing economic conditions, particularly
changes in interest rates;
* changes in government regulations, tax rates and similar
matters;
* our ability to attract and retain quality employees; and
* other risks which may be described in our future filings
with the SEC. We do not promise to update forward-looking
information to reflect actual results or changes in assumptions
or other factors that could affect those statements.
THE OFFERING
Terms of the Offering
The expiration date of the offering is June 30, 1999. We may
extend the expiration date for up to two 90-day periods, without
notice to subscribers, but not beyond December 31, 1999.
The offering will terminate if by the expiration date all of
the units have not been subscribed to and at least 780,000
shares, representing the minimum offering, have not been
subscribed to. However, the 780,000 share minimum is based on the
assumption that all these shares are sold by the sales agent
earning the 3% commission and not through a syndicate of brokers
where an 8% commission applies. If any of these shares are sold
through a syndicate of brokers, the 780,000 shares minimum will
be increased to allow the proceeds of the offering net of
commissions paid to be at least $5,501,309. We reserve the right
to terminate the offering before the expiration date even if the
maximum offering of 1,116,362 shares has not been subscribed for
as long as all the units and the 780,000 minimum number of shares
are subscribed for.
All subscription proceeds will be deposited in an escrow
account with SunTrust Bank Central Florida, N. A., as escrow
agent.
Horizon and Horizon Bank require regulatory approvals from
the Federal Reserve, Florida Department and the FDIC before
Horizon Bank may commence banking operations. These regulatory
approvals generally are conditioned upon satisfaction of certain
post-approval conditions, the most relevant of which is that
Horizon Bank's main banking facility be constructed and opened
for business within one year after its charter is approved. We
believe that all these conditions will be satisfied within six
months following the release of subscription proceeds from the
escrow account. Thus, we will not ask that subscription proceeds
be released to us by the escrow agent not only until
subscriptions proceeds, after commissions paid, of at least
$5,501,309 are received, but also unless we are satisfied that
all post-approval conditions can be met within a six-month
period.
The organizers intend to subscribe for at least 243,638
shares. The organizers may, but are not obligated to, purchase
additional shares if necessary to complete the minimum offering.
No warrants will accompany these additional shares. No subscriber
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 this limitation is waived
by action of 75% of the members of the Board of Directors.
Interest earned on all subscription proceeds will be kept by
us whether or not subscriptions are accepted or rejected or the
minimum offering is completed.
Plan of Distribution
We engaged Attkisson, Carter & Akers as our exclusive sales
agent to sell shares and units in the offering. This engagement
is governed by the Agency Agreement between us and the sales
agent, dated December 17, 1998, and is on a best-efforts basis.
The sales agent will receive a 3% commission on all shares it
sells in the offering but not including the units sold to the
organizers and shares sold to relatives of the organizers whose
names have been given by the organizers to the sales agent in
advance. At any time during the engagement we can request that
the sales agent sell the shares then remaining unsold by
arranging for a syndicate of brokers to sell those shares. From
that point on, we will pay the sales agent and the brokers a
commission of 8% on all shares sold by them. We will pay the
sales agent an investment banking fee of $10,000 and reimburse it
for expenses not to exceed $6,000.
The selling agent's responsibilities will include the
creating and implementation of a marketing plan. As part of the
plan, the sales agent will design a slide presentation and
tombstone advertisements, provide market research on stock
performance by banks in Manatee County and the State of Florida
and place registered brokers on our premises to conduct the sales
effort. We have the right to terminate the arrangement after 90
days. After termination, we can engage another sales agent or
sell the remaining shares through our officers and directors.
As stated below, all subscribers' checks must be made
payable to the escrow agent. Consistent with Rule 15c2-4 under
the Securities Exchange Act, the sales agent will transmit all
subscribers' checks to the escrow agent not later than close of
the next business day. The sales agent will be entitled to any
commission only after the conditions to the release of
subscription proceeds from the escrow agent to us are satisfied
and the proceeds are actually released to us.
Method of Subscription
The minimum subscription is 100 shares or $550, but we
reserve the right to accept subscriptions for less than the
minimum subscription.
In order to purchase shares, you must:
* Complete and sign the subscription agreement accompanying
this prospectus;
* Make full payment for the purchase price for the shares in
United States currency by check, bank draft or money order
payable to "Horizon Bancorporation, Inc. Escrow Account;" and
* Deliver the subscription agreement, in person or by mail,
together with full payment for the purchase price, to Charles S.
Conoley, Suite C, 3005-26th Street West, Bradenton, Florida 34205
The escrow agent will invest subscription proceeds in short-
term, interest- bearing government securities or bank
certificates of deposit until released from the escrow account.
The escrow agent, by accepting appointment, in no way endorses
the purchase of shares by any person.
The rights and obligations of Horizon and the escrow agent
are contained in the Escrow Agreement, dated October 30, 1998.
Subscription Acceptance
Subscriptions are not binding until accepted by us. Deposit
of funds in the escrow account until the satisfaction of the
conditions listed above will not be considered an acceptance of
the subscription to which the funds relate. We reserve the right
to accept or reject subscriptions, in whole or in part, in our
sole discretion. This permits us to refuse to sell shares to any
person submitting a subscription agreement or to accept part but
not all of a subscription so that a subscriber might ultimately
be issued fewer than the full number of shares for which he or
she subscribes. In determining which subscriptions to accept, in
whole or in part, we may take into account the order in which
subscriptions are received and a subscriber's potential to do
business with, or to refer customers to, Horizon Bank.
In the event we reject all or a part of your subscription,
the escrow agent will refund by mail all or the appropriate
portion of the amount paid in by you with the subscription,
without interest, promptly after the rejection. In the event we
do not receive all of the regulatory approvals, all subscription
proceeds will be returned promptly by mail in full without
interest. All costs and expenses of the offering and of
organizing Horizon and Horizon Bank over and above the interest
earned on subscription proceeds, will be borne by the organizers
if all subscriptions are canceled.
We will issue and mail certificates representing the shares
as soon as practicable after subscription proceeds are released
from the escrow account.
USE OF PROCEEDS
We have been funding organizational expenses and offering
expenses from the $108,000 capital contribution made to Horizon
by the organizers by purchasing 21,600 shares at $5 per share. We
have also been using advances from a $300,000 line of credit
which we obtained in November 1998, from SunTrust Bank to fund
those expenses. This pre-opening loan has been guaranteed, on a
several, pro rata basis, by the organizers other than Messrs.
Bennett and Miller. We received the commitment for this loan on
November 2, 1998. As of December 31, 1998, the outstanding
balance of the pre-opening loan was $109,160. We will continue to
incur organizational and offering expenses through the date of
the completion of the offering and release of subscription
proceeds from escrow. We expect that the balance of the pre-
opening loan will be at $262,160 as of the date the offering is
completed.
The following presentation of use of proceeds of the
offering assumes that all the regulatory approvals are received
by us and the offering proceeds are released from escrow and
Horizon Bank is capitalized on May 1, 1999.
Minimum Maximum
Offering Offering
Net Offering proceeds(1) $5,501,309(1) $7,203,301(2)
Anticipated use of proceeds
by the Company:
Offering expenses(3) 110,585 110,585
Organizational expenses(4) 10,000 10,000
Working capital 100,724 951,720
Capitalization of Horizon
Bank through purchase
of common stock 5,280,000 6,130,996
--------- ---------
Total $5,501,309 $7,203,301
========== ==========
Anticipated use of capital
by Horizon Bank:
Organizational and
pre-opening expenses 275,863 275,863
Land and bank facility 1,072,500 1,072,500
Furniture, fixtures
and equipment 258,017 258,017
Working capital 3,673,620 4,524,616
--------- ---------
Total $5,280,000 $6,130,996
========== ==========
- ------------------------------------------------------------
(1) Assuming the sale of 243,638 units and 780,000 shares at a
price of $5.50 per unit and share, with a 3% commission, equal to
$128,700.
(2) Assuming the sale of 243,638 units and 1,116,362 shares, at a
price of $5.50 per unit and share, with a 3% commission on
780,000 shares and an 8% commission on the other 336,362 shares,
for a total commission equal to $276,699.
(3) Offering expenses consist of various filing fees, printing
expenses, escrow agent fees, and accounting and legal fees and
expenses.
(4) These expenses consist of certain consulting fees and
regulatory application fees.
By way of explanation, the organizational and pre-opening
expenses of Horizon Bank are estimated to be $318,753 but are
estimated to be offset partially by net interest income of
$42,890, for a net of $298,863. These expenses consist of
salaries and benefits, consulting fees, marketing and travel
expenses, rent, utilities and telephone expense and cost of
supplies. Land and bank facility costs of $1,072,500 are
comprised of $407,500 purchase price for the 1.05-acre site and
estimated construction costs of the banking facility of $665,000.
The $258,017 cost of the furniture, fixtures and equipment is
estimated on the basis of our previous experience in opening a
banking facility.
Note that some of the expenses and costs of both Horizon and
Horizon Bank will have been incurred before the subscription
proceeds are released to us and Horizon Bank is capitalized.
These expenses and costs will have been funded by us from the
organizers' capital contribution and advances from the pre-
opening loan. In reality, therefore, when the proceeds are
released from escrow and Horizon Bank is capitalized, an
appropriate amount of proceeds will be used to reimburse the
organizers by repurchasing their 21,600 shares and to repay the
pre-opening line of credit.
We intend to use the working capital of Horizon as estimated
in the table above primarily as a source to add to the working
capital of Horizon Bank whenever an addition may be necessary. We
will also use it to pay professional fees, licensing fees, office
expenses and, if we complete the maximum offering, for possible
future acquisitions.
The above table contains estimates only and assumes that
Horizon Bank will be capitalized on May 1, 1999. A change in that
date and other circumstances on which the assumptions underlying
these estimates have been based may cause the actual use of
proceeds to vary from these estimates.
DIVIDEND POLICY
In order to preserve capital to facilitate growth and
expansion, we do not anticipate paying cash dividends on the
shares in the immediate future. The Board of Directors will make
a determination whether to pay cash dividends on the basis of
operating results, financial condition, tax considerations, and
other relevant factors. Also, at present, the only source of
funds from which we could pay cash dividends would be dividends
paid to Horizon by Horizon Bank. Horizon Bank similarly does not
anticipate paying cash dividends to Horizon in the near future in
order to preserve its capital to facilitate growth and expansion
of its business. Payment of cash dividends by Horizon Bank is
also limited by regulatory requirements and limitations. See,
"Supervision and Regulation."
In summary, we can give no assurances that any dividends will
be declared by Horizon or, if declared, what the amount of the
dividends will be or whether the dividends, once declared, would
continue.
BUSINESS
Horizon
Horizon was incorporated in the State of Florida on May 27,
1998, under the name of Manasota Group, Inc. In anticipation of
the filing for regulatory approval for Horizon Bank, we amended
the Articles of Incorporation, on October 2, 1998, changing the
name to Horizon Bancorporation, Inc. We further amended the
Articles of Incorporation to include the authorization of
additional capital stock and anti-takeover provisions typical in
the case of a bank holding company for a community bank. We
anticipate filing an application with the Federal Reserve for
authority to become a bank holding company on or about March 1,
1999.
Our temporary offices are currently located at Suite C, 3005-
26th Street West, Bradenton, Florida 34205, with our telephone
number being (941) 753-2265. Our permanent offices will be
located at 901-53rd Avenue East, Bradenton, Florida 34203, at
Horizon Bank's proposed main banking facility.
Horizon is authorized to engage in any activity available by
law to a corporation, as permitted under applicable Federal and
state regulatory restrictions applicable to the activities of
bank holding companies. The holding company structure will
provide us with greater flexibility, than Horizon Bank standing
alone would have, to expand and diversify business activities
through newly formed subsidiaries or through acquisitions. While
we have no present plans to engage actively in any other business
activities, we will study the feasibility of establishing or
acquiring subsidiaries to engage in other business activities
permitted by law.
Our principal assets will consist initially of the net
proceeds of the offering and Horizon Bank's stock. These assets
will be used to fund our initial activities. Whether we will need
additional capital will depend to a great extent upon the capital
needs of Horizon Bank, which, in turn, will depend upon the level
of deposits and total assets of Horizon Bank. Horizon Bank's
capital needs for at least the next three years are expected to
be satisfied from the proceeds of the offering and from normal
business operations. If, after the first three years, Horizon
Bank were to grow at a more rapid rate than anticipated, Horizon
Bank's capital needs could exceed the amount of capital retained
by us from the offering. We believe that additional capital would
be available through the sale of additional securities or debt
offerings.
Horizon Bank
General
Horizon 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 and whose deposits are
insured by the FDIC. Horizon Bank applied for both the charter
and deposit insurance on October 12, 1998, and we expect to
receive approval of both these applications on or about February
12, 1999.
Horizon Bank's initial capitalization will be provided from
the net proceeds of the offering by Horizon purchasing 1,000,000
shares of Horizon Bank's common stock. The purchase price per
share will be established at the level that will provide Horizon
Bank with the total amount of capital and surplus sufficient to
meet the minimum capitalization level set for Horizon Bank by the
Florida Department.
Immediately upon obtaining all regulatory approvals and
being capitalized, Horizon Bank will engage in attracting
deposits from the general public and will make commercial,
consumer and real estate loans. We anticipate that Horizon Bank
will commence operations on May 1, 1999, assuming the completion
by that date of at least the minimum offering and sale of all of
the units.
The organizers developed a market analysis covering the
proposed primary service area and a proprietary business plan
that were included in their applications to the regulatory
authorities. Horizon 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 Horizon Bank's personalized services.
Horizon Bank intends to emphasize a high degree of personalized
client service in order to be able to serve each customer's
banking needs. Horizon Bank's marketing approach will emphasize
the advantages of dealing with an independent, locally-owned and
headquartered commercial bank to meet the particular needs of
individuals, professionals and small to medium-sized businesses.
We will continually evaluate all banking services as to their
profitability and make effort to modify Horizon Bank's business
plan if the plan does not prove successful.
We believe that Horizon Bank's business plan will make it
profitable by the end of the second year of operations. However,
it has been the experience in the banking industry for new
financial institutions to lose money in the first several years
of operation. There can be no assurance as to when or whether
Horizon Bank's operations will become profitable.
Primary service area
Horizon Bank's primary service area 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 primary service area from which Horizon 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 primary service area has been estimated at
161,899 and has been projected to rise to 172,379 by the year
2003. Total employment in the primary service area is estimated
at 88,000, and the median age is estimated at 42.4.
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 primary service area 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 primary service area having an annual income over $25,000.
Competition
Horizon 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 primary service area. The primary
factors in competing for bank accounts are interest rates, the
range of financial services offered, convenience of office
locations and flexible office hours. Direct competition for bank
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. These entities may have competitive
advantages as a result of greater resources and higher lending
limits by virtue of their greater capitalization. These
competitors also may offer their customers certain services that
Horizon Bank will not provide directly but might offer indirectly
through correspondent institutions.
As of June 30, 1997, there were eleven commercial banks and
six savings banks and savings and loan institutions operating in
the primary service area. Their 89 branches had combined deposits
of $2.9 billion. Deposit growth during 1996-1997 of the two
community banks among the commercial banks was the highest among
all financial institutions both in terms of volume and percentage
change.
We may encounter increased competition as a result of the
enactment in 1997 of Florida legislation implementing the Riegle-
Neal Interstate Banking and Branch Efficiency Act of 1994. In
general terms, this 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 us are Charles S. Conoley, the
President and Chief Executive Officer of Horizon and Horizon
Bank, working under a consulting agreement, and Jerilynn Chapin,
Corporate Administrator. Horizon, Horizon Bank and Mr. Conoley
have also entered into an employment agreement which will become
effective upon release of subscription proceeds from escrow. See,
"Management - Remuneration of Officers and Directors." Unless we
expand our operations into other activities permitted by law for
a bank holding company, it is unlikely that we will have many
employees. During the first year of operations, we anticipate
that Horizon Bank will employ approximately twelve full-time
employees of whom, it is estimated, that six will be officers.
During the pre-opening phase, we anticipate that Horizon Bank
will employ five full-time employees of whom, it is estimated,
that three will be officers.
Property
On October 6, 1998, we entered into a lease for 500 square
feet of space at Suite C, 3005-26th Street West, Bradenton,
Florida 34205. The lease is for twelve months, with a minimum of
nine months, at $450 per month plus cost of electricity. We will
use this office as headquarters and for "back office" activities
of Horizon Bank pending opening of its main banking facility.
Effective September 30 1998, Horizon entered into an
agreement to purchase a 1.05-acre parcel to be used as the site
for the main banking facility of Horizon Bank and our
headquarters. Assuming all contingencies are timely satisfied, we
will purchase the site on March 24, 1999, for $407,500. The
facility, to be located at the site at 901-53rd Avenue East,
Bradenton, Manatee County, Florida 34203, will be one story, with
approximately 5,000 square feet of finished space, expandable to
a maximum of 7,000 square feet of finished space, and with four
interior teller stations and four exterior drive-thru teller
stations and 30 parking spaces. The interior will also include
executive offices, work stations for support staff, a vault and
safe deposit box storage areas. We expect that total construction
costs, including landscaping and site improvements and
architectural and engineering fees, will be $665,000 , with
construction expected to be completed by October 31, 1999,
assuming that construction begins by May 1, 1999. We estimate the
cost of furniture, fixtures and equipment for the main banking
facility to be approximately $258,017.
We will install a temporary modular office at the site,
pending the completion of the construction of the permanent
facility, at which office deposit and withdrawal transactions
will be conducted. We believe that use of the modular office will
permit Horizon Bank to generate revenues and deposit balances,
the benefits of which will exceed the costs of deploying the
modular office.
Horizon Bank will be open from 9:00 a.m. to 4:00 p.m.,
Monday through Thursday and from 9:00 a.m. to 6:00 p.m. on
Friday, with the drive-through teller station being open from
8:00 a.m. to 6:00 p.m. Monday through Friday.
Banking Services Generally
Horizon Bank will offer a full range of commercial banking
services to individual, professional and business customers in
its primary service area. 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 primary service area. Customer deposits with Horizon Bank
will be insured to the maximum extent provided by law through the
FDIC. Horizon Bank plans to issue credit cards and to act as a
merchant depository for cardholder drafts under both Visa and
MasterCard. It 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. Horizon Bank does not anticipate
offering trust and fiduciary services initially and will rely on
trust and fiduciary services offered by correspondent banks until
it determines that it is profitable to offer these services
directly.
Lending Activities
Horizon Bank will seek to attract deposits from the general
public and will use those deposits, together with borrowings and
other sources of funds, to originate and purchase loans. It will
offer a full range of short and medium-term commercial, consumer
and real estate loans. Horizon Bank will attempt to react to
prevailing market conditions and demands in its lending
activities, while avoiding excessive concentrations of any
particular loan category. It has not yet fixed specific goals as
to lending concentration by type of loan because its written loan
policy is in the process of being developed and will be approved
by the Florida Department prior to issuing a permit to begin
business. Horizon 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 of loans is inherent in making all
loans. However, management 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, Horizon Bank
will consider 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, Horizon Bank is limited in the amount it
can loan to a single borrower to no more than 15% of a bank's
statutory capital base, unless a loan which is greater than 15%
of the statutory capital base is approved by the 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 a bank's
statutory capital base. It is expected that Horizon 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.
Horizon Bank's loan policy, when developed and approved by the
Florida Department, may establish a lower lending limit.
Horizon Bank will maintain an allowance for loan losses
based upon management's assumptions and judgments regarding the
ultimate collectibility of loans in its portfolio and based upon
a percentage of the outstanding balances of specific loans when
their ultimate collectibility is considered questionable. Certain
risks with regard to specific categories of loans are described
below.
Commercial Loans. Commercial lending activities will be
directed principally toward businesses whose demand for funds
will fall within Horizon Bank's anticipated lending limit. These
businesses will include small to medium-size professional firms,
retail and wholesale businesses, light industry and manufacturing
concerns operating in and around the 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 unsecured
working capital lines of credit. Repayment of these loans will be
dependent upon the financial success of the business borrower.
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. Horizon
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 primary service 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 Horizon Bank's customers, with an emphasis on
automobile financing, home improvements, debt consolidation and
other personal needs. Consumer loans will generally involve more
risk than first mortgage loans because the collateral for a
defaulted loan may not provide an adequate source of repayment of
the principal due to damage to the collateral or other loss of
value while the remaining deficiency often does not warrant
further collection efforts. In addition, consumer loan
performance is dependent upon the borrower's continued financial
stability and are, therefore, more likely to be adversely
affected by job loss, divorce, illness or personal bankruptcy.
Various Federal and state laws, including Federal and state
bankruptcy and insolvency laws, may also limit the amount that
can be recovered.
Asset and Liability Management
The primary assets of Horizon Bank will consist of its loan
portfolio and investment accounts. Consistent with the
requirements of prudent banking necessary to maintain liquidity,
we will seek to match maturities and rates of loans and the
investment portfolio with those of deposits, although exact
matching is not always possible. We will seek to invest the
largest portion of Horizon Bank's assets in commercial, consumer
and real estate loans. We anticipate that loans will be limited
to less than 74% of deposits and capital funds; however, this
ratio may be exceeded in the initial period of operation. We
anticipate that Horizon 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.
Horizon Bank's investment policy will provide for a
portfolio divided among issues purchased to meet one or more of
the following objections:
* to complement strategies developed in assets/liquidity
management, including desired liquidity levels;
* to maximize after-tax income from funds not needed for day-
to-day operations and loan demand; and
* to provide collateral necessary for acceptance of public
funds.
We anticipate that this policy will allow Horizon Bank to
deal with seasonal deposit fluctuations and to provide for basic
liquidity consistent with 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
Horizon Bank. These will include savings accounts, transaction
accounts and time deposits.
Initially, Horizon 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. Its principal expenses are anticipated to be
interest expense on deposits and operating expenses. The funds
for these activities are anticipated to be provided principally
by operating revenues, deposit growth, purchase of Federal funds
from other banks, repayment of outstanding loans and sale of
loans and investment securities.
SUPERVISION AND REGULATION
We provide the following as a summary of statutes and
regulations affecting bank holding companies. This summary is
qualified in its entirety by reference to these statutes and
regulations.
Supervision and Regulation of Horizon
Horizon will be a bank holding company within the meaning of
the Federal Bank Holding Company Act of 1956. As a bank holding
company, Horizon will be required to file with the Federal
Reserve annual and semi-annual reports and information regarding
its business operations and those of Horizon Bank. Horizon and
Horizon Bank will also be examined by the Federal Reserve.
A bank holding company is required by the Federal Bank
Holding Company Act to obtain approval from the Federal Reserve
prior to acquiring control of any bank that it does not already
own or engaging in any business other than banking or managing,
controlling or furnishing services to banks and other
subsidiaries authorized by the statute. The Federal Reserve would
approve the ownership of shares by a bank holding company in any
company the activities of which it has determined by order or
regulation to be so closely related to banking or to managing or
controlling banks as to be a proper incident thereto. In other
words, we would require Federal Reserve approval if we were to
engage in any of the foregoing activities.
Horizon would be compelled by the Federal Reserve to invest
additional capital in the event Horizon Bank experiences either
significant loan losses or rapid growth of loans or deposits. The
Federal Reserve requires a bank holding company to act as a
source of financial strength and to take measures to preserve and
protect its bank subsidiaries
As a bank holding company, we will operate under the capital
adequacy guidelines established by the Federal Reserve. Under the
Federal Reserve's current risk-based capital guidelines for bank
holding companies, the minimum required ratio for total capital
to risk weighted assets we will be required to maintain is 8
percent, with at least 4 percent consisting of Tier 1 capital.
Tier 1 capital consists of common and qualifying preferred stock
and minority interests in equity accounts of consolidated
subsidiaries, less goodwill and other intangible assets. Because
we will be a bank holding company with less than $150 million in
total consolidated assets, these guidelines will be applied on a
bank only basis. These risk-based capital guidelines establish
minimum standards and bank holding companies generally are
expected to operate well above the minimum standards.
Following completion of the offering, Horizon will also have
to comply with the requirements of the Securities Exchange Act of
1934, which include the filing of annual, quarterly and other
reports with the SEC.
Supervision and Regulation of Horizon Bank
Horizon Bank will be examined and regulated by the Florida
Department and the Federal Reserve. Under Florida law and Florida
Department's regulations, Horizon Bank may pay cash dividends
only up to the sum of
* current period net profits; plus
* 80% of its cumulative retained net profits for the preceding
two years or, with the approval of the Florida Department, 80% of
its cumulative retained net profits for a period longer than two
years.
Also, no dividend will be permitted to be paid by Horizon
Bank if
* the sum of the amounts equal to the remaining 20% of the
retained net profits for the periods from which the 80% is used
to pay the dividends is less than Horizon Bank's book value of
its common and preferred stock; or
* the sum of the current period net profits plus the retained
net profits for the preceding two years is less than zero.
Horizon Bank's deposits will be insured by the FDIC for a
maximum of $100,000 per depositor. For this protection, Horizon
Bank will pay a semi-annual statutory assessment and will have to
comply with the rules and regulations of the FDIC. In case of
member banks like Horizon Bank, the Federal Reserve has the
authority to prevent the continuance or development of unsound
and unsafe banking practices and to approve conversions, mergers
and consolidations.
As a member of the Federal Reserve, Horizon Bank will also
have to comply with rules that restrict preferential loans by the
bank to "insiders," require Horizon 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 Federal Reserve's current
risk-based capital guidelines for member banks, Horizon Bank will
be required to maintain a minimum ratio of total capital to risk
weighted assets of 8 percent, with at least 4% consisting of Tier
1 capital.
In addition, the Federal Reserve requires its member banks
to maintain a minimum ratio of Tier 1 capital to total assets.
This capital measure is generally referred to as the leverage
capital ratio. The minimum required leverage capital ratio is 4
percent if the Federal Reserve determines that the institution is
not anticipating or experiencing significant growth and has well-
diversified risks -- including no undue interest rate exposure,
excellent asset quality, high liquidity and good earnings -- and,
in general, is considered a strong banking organization and rated
Composite 1 under the Uniform Financial Institutions Rating
Systems. If Horizon Bank does not satisfy any of these criteria
it may be required to maintain a ratio of total capital to risk-
based assets of 10 percent and a ratio of Tier 1 capital to risk-
based assets of at least 6 percent. Horizon Bank would then be
required to maintain a 5 percent leverage capital ratio.
Monetary Policy
Banking is a business that depends on interest rate
differentials. The difference between the interest rates paid by
Horizon 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
Horizon Bank's earnings.
The earnings and growth of Horizon Bank will be affected not
only by general economic conditions, both domestic and foreign,
but also by the monetary and fiscal policies of the United States
and its agencies, particularly the Federal Reserve. The Federal
Reserve implements national monetary policy 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. The actions of the Federal Reserve in these areas
influence the growth of bank loans, investments and deposits and
also affect interest rates charged and paid on deposits. We
cannot predict the nature and impact of any future changes in
monetary policies.
Recent Legislative Developments
Under recent Florida legislation, which is designed to
implement the Interstate Banking Act, a non-Florida bank may not
open new branches in Florida but may, beginning May 31, 1997,
acquire by merger a Florida bank and operate its 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 new banks
by non-Florida bank holding companies. A non-Florida bank holding
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 if
they result in the control of more than 30% of the total amount
of insured deposits in Florida, except where the acquisition is
an initial entry into Florida by the out-of-state bank holding
company. This legislation has the potential of increasing the
competitive forces to which we would be subject.
The United States Congress has periodically considered and
adopted legislation that has resulted in, and could further
result in, deregulation of both banks and other financial
institutions. This legislation could further eliminate geographic
restrictions on banks and bank holding companies and current
prohibitions against banks engaging in certain non-banking
activities. These legislative changes could place us in more
direct competition with other financial institutions, including
mutual funds, securities brokerage firms, insurance companies and
investment banking firms. We cannot predict what other
legislation might be enacted, and if enacted, the effect thereof.
MANAGEMENT
Directors and Executive Officers
The current members of the Board of Directors of Horizon are
the nine organizers. They are divided into three classes that
serve staggered three-year terms. The members of one class are
elected at each annual meeting of shareholders and hold office
until the third annual meeting following their election or until
successors are elected and qualified. The following table sets
forth certain information about the current directors and
executive officers of Horizon and Horizon Bank.
Position Position
Name of Organizer Age With Horizon With Bank
Clarence R. Urban 54 Class III Director,
Director, Chairman of the
Chairman of the Board of
Board of Directors
Directors
Charles S. Conoley 39 Chief Executive Chief Executive
Officer, Officer,
President and President and
Class I Director Director
Thomas C. Bennett, 75 Class II Director
Jr. Director
Michael Shannon 30 Class I Director Director
Glasgow
C. Donald Miller, 61 Class II Director
Jr. Director
Stephen C. Mullen 45 Class II Director
Director
David K. Scherer 37 Class III Director
Director
Bruce E. 43 Class I Director
Shackelford Director
MaryAnn P. Turner 37 Class III Director
Director
The term of the Class I Directors expires 1999, the term of
the Class II directors expires in 2000, and the term of the Class
III directors expires in 2001.
The business and residential addresses of the above-named
directors and executive officers 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., West
Bradenton, FL 34205
410-68th Court, N. W.
Bradenton, FL 34209
Michael Shannon Glasgow
1209-44th Avenue East
Bradenton, FL 34203
719-46th St. Court E.
Palmetto, FL 34221
C. Donald Miller, Jr.
1111-3rd Ave. West
Bradenton, FL 34205
216-21st St., W
Bradenton, FL 34216
Stephen C. Mullen
8440 North Tamiami Trail
Sarasota, FL 34243
820 Idlewild Way
Sarasota, FL 34242
David K. Scherer
4239-63rd St. West.
Bradenton, FL 34209
5008 Mangrove Pt., Rd.
Bradenton, FL 34210
Bruce E. Shackelford
1205-28th Ave. & Highway 30
Ellenton, FL 34222
5310 Jim Davis Rd.
Parrish, FL 34219
Mary Ann P. Turner
2504-64th St. Ct. East
Bradenton, FL 34208
1822-97th St., N. W.
Bradenton, FL 34209
Clarence R. Urban
2108 Whitfield Park Loop
Sarasota, FL 34243
3319-59th Avenue Dr., E
Bradenton, FL 34203
The business experience of each of the directors and
executive officers is described 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 54, 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. Arcade is
one of the largest commercial printers on the West Coast of
Florida and Superior is a leader in color separations for
printers throughout the Southeast and Caribbean.
Remuneration of Directors and Officers
Our directors, other than Charles S. Conoley, have not
received and will not receive fees or other compensation in
connection with the organization of Horizon. They will not be
paid fees for their service on or at meetings of the Board of
Directors or committees thereof until the total net profits
earned by Horizon Bank from inception becomes greater than the
total net losses incurred by it from inception.
Charles S. Conoley and Horizon have entered into a
Consulting Agreement, dated June 8, 1998, describing Mr.
Conoley's duties on behalf of Horizon in connection with the
organization of Horizon Bank. Under the consulting contract, Mr.
Conoley is paid at the rate of $5,000 per month until Horizon
Bank's charter application is filed, $6,000 per month until we
successfully complete the minimum offering and a bonus of $16,000
upon the opening of Horizon Bank for business. The consulting
contract terminates at the earlier of June 7, 1999, or the date
Horizon Bank opens for business.
On October 28, 1998, Horizon, Horizon Bank and Mr. Conoley
entered into an Employment Agreement, which effective date would
be the date of the termination of the consulting contract.
However, if the consulting contract terminates due to the failure
of Horizon Bank to open for business by June 7, 1999, then Mr.
Conoley's employment would be extended at the compensation levels
provided in the consulting contract until the earlier of the
opening of Horizon Bank for business or December 31, 1999. Under
the employment agreement, Mr. Conoley would serve as Chief
Executive Officer and President of Horizon and Horizon 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:
* Our failure to complete the minimum offering by December 31,
1999;
* Mr. Conoley's death;
* Mr. Conoley's complete disability; or
* A circumstance considered "for cause," which includes an act
or conduct considered by the Board of Directors to be
inappropriate and the failure of Horizon 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 Horizon 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 $5.50 and an expiration date of ten years from
the date of issue.
Under the employment agreement, Mr. Conoley would also be
entitled to employee benefits, including an annual vacation, the
use of an automobile, life and medical insurance with dependant
coverage, dental insurance, country and civic club membership,
the right to reimbursement for reasonable business related
expenses and a $250,000 term life insurance policy on his life to
be owned by him.
Also, the employment agreement provides for a severance
payment for Mr. Conoley and an automatic vesting of all
outstanding stock options in the event of Mr. Conoley's
termination, other than for cause, after a change of control of
Horizon Bank. Under the employment agreement, the term "control"
means the acquisition of 25 percent or more of the voting
securities of Horizon Bank by any person, or persons acting as a
group within the meaning of Section 13(d) of the Securities
Exchange Act, or the acquisition of between 10 percent and 25
percent if the Board of Directors or any regulatory authority has
made a determination that the acquisition constitutes or will
constitute control of Horizon Bank.
Limitation on Directors' Liability
Horizon's Articles of Incorporation contain a provision
which, in accordance with Florida law, eliminates or limits the
personal liability of directors to Horizon and its shareholders
for monetary damages for certain breaches of their duty of care
or other duty. This provision provides that a director will not
be personally liable for monetary damages for a breach of his or
her duty of care or other duty as a director, except for
liabilities for
* any appropriation, in violation of the director's duties, of
any business opportunity of Horizon;
* acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law;
* authorization of improper dividends or redemptions; or
* any transaction from which the director derived an improper
personal benefit.
Liability for monetary damages remains unaffected by that
provision if liability is based on any of these grounds.
Liability for monetary damages for violations of Federal
securities laws would also remain unaffected. The provision does
not eliminate a director's fiduciary duty, nor does it preclude a
shareholder from pursuing injunctive or other equitable remedies.
The provision was prompted in part by adverse changes in the cost
and availability of director and officer liability insurance and
by a concern that corporations would encounter difficulties in
attracting and retaining qualified directors. We believe this
provision in is essential to maintain and improve our ability to
attract and retain competent directors.
We are advised that, insofar as indemnification of
directors, officers and controlling persons for liabilities
arising under the Securities Act of 1933, that type of
indemnification is against public policy and is, therefore,
unenforceable.
CERTAIN TRANSACTIONS
Organizers' and Directors Shares, Warrants and Stock Options
Consistent with the certain Organizer's Contribution
Agreement, dated May 20, 1998, the organizers who are parties to
that agreement, except Warren E. Gagner and Bruce R. Woodruff,
intend to subscribe for 236,360 shares. In addition, two
additional organizers, Thomas C. Bennett, Jr. and C. Donald
Miller, Jr., in the aggregate intend to subscribe to 3,640
shares. The organizers may, but are not obligated to, purchase
additional shares if it is necessary to complete the minimum
offering. Shares purchased in this offering by organizers are
being purchased for investment purposes and not for resale.
In recognition of the risk of loss to the organizers of
their equity investment and having to repay the pre-opening loan
if the offering is not successful, as well as an incentive for
them to serve as directors, each organizer will receive a
warrant. The warrant will be added to each share purchased by
each organizer to create the unit. Each warrant will entitle the
organizer to purchase, at any time within ten years from the date
Horizon Bank opens for business, an additional share at $5.50 per
share.
The warrants are not immediately exercisable. The right to
exercise the warrants will vest for one-third (1/3) of the shares
covered by the warrants on each anniversary of the date Horizon
Bank opened for business so long as the organizer has served
continuously as a director of Horizon and Horizon Bank from its
opening until the particular anniversary and has attended a
minimum of 75% of the Board of Directors meetings during the
period. However, all the warrants will become vested upon the
change in control of Horizon Bank, or a sale by Horizon Bank of
all or substantially all its assets. The warrants are detachable
and may be transferred separately from the shares with which they
were originally issued as a unit.
Whether the grant of warrants will occur at all, and the
terms of the warrants, are still to be approved by the FDIC. One
of the conditions for FDIC's approval is likely to be that
Horizon has the right, upon notice from any regulatory authority,
to require immediate exercise or forfeiture of the warrants if,
in the Board of Directors' opinion, the exercise is reasonably
necessary in order to inject additional capital into Horizon
Bank.
The organizers will have received the warrants as
consideration for taking financial risks and for serving as
directors without compensation until Horizon Bank is profitable.
Moreover, we anticipate that the shares will be sold by us
through the sales agent and that the organizers will not be
involved in the offering at all. If we terminate the sales
agent's engagement in the middle of the offering and do not
engage another sales agent, the organizers may become involved in
the offering. If they do become involved in the offering, the
number of warrants to which each organizer becomes entitled will
not be based on the number of shares sold by the organizer in the
offering, but on the number of shares purchased by the organizer
in the offering. Accordingly, the warrants should not be
construed as compensation to the organizers for purposes of Rule
3a4-1 under the Securities Exchange Act.
We are considering the establishment of a stock option plan
under which stock options would be issued to key employees of
Horizon and Horizon Bank and, to a lesser extent, to the
directors. The total number of shares to be issued under this
plan will in no event exceed 10% of the total number of shares
outstanding immediately after the offering.
Organizational Subscriptions
In connection with the organization of Horizon, the
organizers have previously subscribed for 21,600 shares at a
price of $5.00 per share. The proceeds from the sale of
organizational shares have been and will continue to be used for
the purpose of paying offering, organizational and other expenses
which Horizon and Horizon Bank will have incurred prior to
release of the offering proceeds from the escrow account. Upon
release of the offering proceeds from escrow, we intend to
repurchase all of these organizational shares at their original
purchase price. The terms of the repurchase are described in that
certain Stock Redemption Agreement by and among Horizon and the
organizers, dated as of October 28, 1998.
Lending and Other Matters
It is anticipated that our directors and officers, and the
businesses and other organizations with which they are
associated, will have banking transactions in the ordinary course
of business with Horizon Bank. It will be the policy of Horizon
Bank that any loans or other commitments to those 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 over $25,000 will require the prior approval of
a majority of the entire Board of Directors as provided under
Florida law. All future transactions with affiliates will be on
terms no less favorable than could be obtained from an
unaffiliated third party and must be approved by a majority of
directors including a majority of disinterested directors.
In addition, each loan by Horizon Bank to any officer,
director or controlling person of Horizon Bank or any of its
affiliates may be made only in compliance with the following
conditions: The loan
* will be evidenced by a promissory note naming Horizon Bank
as payee and 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 Horizon
Bank's locale;
* will be repaid according 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 Horizon Bank's locale;
* will be made only if credit reports and financial
statements, or other reasonable investigation appropriate in
light of the nature and terms of the loan and which meet the loan
policies normally used by other commercial lenders for similar
loans made to non-affiliates in Horizon Bank's locale, show the
loan to be collectible and the borrower a satisfactory credit
risk; and
* the purpose of the loan and the disbursement of proceeds are
reviewed and monitored in a manner comparable to that normally
used by other commercial lenders for similar loans made in
Horizon Bank's locale.
Consulting Agreement
On June 22, 1998, we entered into a consulting agreement
with Bank Resources, Inc. Under the consulting agreement, Bank
Resources has assisted in the preparation of the charter
application and the application for FDIC deposit insurance for
Horizon Bank. It has also prepared the business plan and policies
and procedures manual for Horizon Bank. Bank Resources will also
assist in the preparation of Horizon's and Horizon Bank's
applications to the Federal Reserve.
Under the consulting agreement, we will have paid Bank
Resources the aggregate of $41,200 in fees and will grant them,
when Horizon Bank's charter is approved, options to purchase
4,000 shares at $5.50 per share. The options are vested upon
grant, will be exercisable over ten years and could be granted
directly to E. Byron Richardson, the sole principal of Bank
Resources. We are not obligated and do not intend to register for
resale the shares underlying these options. We believe the total
fair market value of the services to be provided by Bank
Resources to be $43,900 and have agreed to pay Bank Resources
$2,700 in lieu of the options if the options cannot be granted
for any reason.
PRINCIPAL SHAREHOLDERS
The following table sets forth certain information regarding
the shares and the warrants that each organizer agreed to
subscribe for through his or her purchase of the units, and the
aggregate number of the shares and warrants of all the organizers
as a group.
Anticipated Share Ownership and Warrants
AFTER OFFERING
MINIMUM MAXIMUM SHARES
NUMBER OF OFFERING OFFERING CALLED FOR BY
NAME SHARES PERCENT PERCENT WARRANTS
- ---- --------- -------- -------- -------------
Thomas C. Bennett, Jr.
Organizer and Director
1,820 .178% .13% 1,820
Charles S. Conoley
Organizer, Director and CEO
36,366 3.553% 2.66% 36,366
Michael Shannon Glasgow
Organizer and Director
45,450 4.440% 3.33% 45,450
C. Donald Miller, Jr.
Organizer and Director
1,820 .178% .13% 1,820
Stephen C. Mullen
Organizer and Director
22,725 2.220% 1.71% 22,725
David K. Scherer
Organizer and Director
40,000 3.908% 2.92% 40,000
Bruce E. Shackelford
Organizer and Director
22,725 2.220% 1.71% 22,725
Mary Ann P. Turner
Organizer and Director
36,366 3.553% 2.66% 36,366
Clarence R. Urban
Organizer and Director
36,366 3.553% 2.66% 36,366
------ ------ ----- -------
TOTAL 243,638 23.80% 17.91% 243,638
- ------------------------------------------------------------
Except as otherwise indicated, the persons named in the
above table will have sole voting and investment power as to all
shares shown as beneficially owned by them. Also, these numbers
do not reflect any additional shares which the organizers may
purchase if it is necessary to complete the minimum offering or
shares which may be purchased by any additional directors or
officers of Horizon or Horizon Bank.
Options
The following table indicates the options to be granted to
Mr. Conoley on the date that Horizon Bank opens for business.
Each of the options will have a ten-year term from the date of
grant and will vest ratably over a five-year period from the date
of grant. We are not obligated to or intend to register for
resale the shares underlying these options.
Shares Exercise
Underlying the Options Price Per Share Date of Exercise
30,709(1)/40,800(2) $5.50 N/A
(1) Assumes the minimum offering of 780,000 shares and 243,638
units.
(2) Assumes the maximum offering of 1,116,362 shares and 243,638
units.
DESCRIPTION OF SECURITIES
Common Stock
Horizon is authorized by our Articles of Incorporation to
issue 25,000,000 shares of common stock, $.01 par value.
Shareholders are entitled to one vote per share on all
matters to be voted on by shareholders and are not entitled to
cumulate their votes in the election of directors, which means
that the holders of a majority of the shares voting for the
election of directors can elect all of the directors then
standing for election should they choose to do so. Shareholders
are entitled to receive dividends, if any, as may be declared
from time to time by the Board of Directors, with prior
regulatory approval, from funds legally available therefor.
Shareholders are entitled to share pro rata in any distribution
to the holders of common stock in the event of any liquidation,
dissolution or winding-up of Horizon.
Shareholders have no preemptive or other subscription or
conversion rights. The shares have no redemption or sinking fund
provisions. Upon payment therefor, the shares will be fully paid
and non assessable.
Preferred Stock
Horizon is authorized by its Articles of Incorporation to
issue up to 1,000,000 shares of preferred stock, $.01 par value
per share. No shares of preferred stock have been issued. The
Board of Directors may, in its sole discretion and without
further action by the shareholders, from time to time, direct the
issuance of preferred stock, in one or more series, for any
proper corporate purpose with those preferences, voting powers,
conversion rights, qualifications, special or relative rights and
privileges as the Board of Directors may determine. These terms
of the preferred stock could adversely affect the voting power or
other rights of holders of the shares. Satisfaction of any
dividend preferences on outstanding preferred stock would reduce
the amount of funds available for the payment of dividends on the
shares. In addition, the holders of preferred stock would
normally be entitled to receive a preference payment in the event
of any liquidation, dissolution or winding-up of Horizon before
any payment is made to the holders of the shares. The Board of
Directors has no present plans or understandings for the issuance
of any preferred stock and does not intend to issue any preferred
stock except on terms which the Board deems to be in the best
interest of Horizon and its shareholders.
Warrants
The warrants to be issued as part of the units are
detachable, ten-year rights to purchase one share, at $5.50 per
share. When the terms of the warrants, as described in "Certain
Transactions--Organizers' and Directors' Shares, Warrants and
Stock Options," are finally approved by the FDIC, they will be
represented by separate warrant agreements.
Transfer Agent and Registrar
Unless we are required by law or administrative action to
appoint an independent transfer agent and registrar, Horizon Bank
will act as transfer agent and registrar for the shares.
Reports to Shareholders
We intend to furnish the shareholders with annual reports
containing audited financial statements and quarterly reports
containing unaudited financial information.
Securities Eligible for Future Sale
Upon completion of the offering, Horizon will have 243,638
warrants and a minimum of 1,023,638 shares and a maximum of
1,360,000 shares outstanding. All of these shares and warrants
will be freely tradable without restriction or registration under
the Securities Act of 1933, except for shares and warrants
purchased by persons who, because they are directors, officers or
10% or more shareholders, are "affiliates" of Horizon, as that
term is defined under Rule 144. The shares and warrants owned by
these "affiliates" will carry with them restrictions on resale
under the Securities Act as so-called "controlled securities".
Note that the shares issuable upon the exercise of stock options
or warrants will be "restricted securities". Both "controlled
securities" and "restricted securities" are eligible for sale in
the open market essentially only under Rule 144.
In general, under Rule 144, a person who has beneficially
owned restricted securities for at least one year would be
entitled to sell, within any three month period, in 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 the sale. Non-affiliates who have
held their restricted securities for at least two years would be
entitled to sell those securities under Rule 144 without regard
to the volume limitation.
Defensive Anti-Takeover Provisions
General
The provisions of Horizon's Articles of Incorporation and
Bylaws described below will have an "anti-takeover" effect. We
believe that the provisions described below are prudent and will
reduce our vulnerability to takeover attempts and certain other
transactions that may not be negotiated with and approved by the
Board of Directors. We believe that it is in the best interest of
Horizon and our shareholders to encourage potential acquirers to
negotiate directly with the Board and that these provisions will
encourage negotiations and discourage hostile takeover attempts.
It is also our view that these "anti-takeover" provisions should
not discourage persons from proposing an acquisition or other
transaction at prices reflective of the true value of Horizon
that is in the best interest of all shareholders. To be sure, the
Board of Directors has a fiduciary obligation to act in the best
interest of the shareholders and Horizon in determining corporate
action without regard to these provisions.
Directorships
Our Board of Directors is divided into three classes that
must be as close to equal in size as possible. The members of
each class serve three-year terms with each class being elected
in successive years. Our Bylaws provide that the size of the
Board of Directors, within the six to twenty member range
specified in the Articles of Incorporation, may be increased or
decreased only by a majority vote of the directors then in
office. The Articles of Incorporation provide that any vacancies
occurring on the Board of Directors, including a vacancy created
by an increase in the number of directors, shall be filled for
the remainder of the unexpired term only by a majority vote of
the directors then in office.
Removal of Directors
Horizon's Articles of Incorporation provide that no director
may be removed except for cause and then only by the vote of
holders of at least two-thirds of the outstanding voting stock
entitled to vote. However, if two-thirds of the directors then in
office approve the removal, then the vote of the holders of only
a majority of the outstanding voting stock is required to remove
a director.
Special Meetings of Shareholders
Horizon's Articles of Incorporation provide that a special
meeting of shareholders may be called by the Chairman of the
Board, by a majority vote of the directors then in office or by
the holders of at least 25% of the outstanding voting stock.
No Action By Written Consent
Horizon's Articles of Incorporation provide that the
shareholders shall not be entitled to take any action by written
consent in lieu of taking that action at an annual or special
meeting of shareholders.
Approval of Certain Business Transactions
Horizon's Articles of Incorporation provide that the vote of
holders of at least two-thirds of the outstanding voting stock is
required to approve certain mergers, consolidations or
dispositions of assets of Horizon or any of its subsidiaries.
However, if the proposed transaction is approved by the vote of
at least two-thirds of the directors then in office, then the
vote of holders of only a majority of the outstanding voting
stock is required to approve the transaction.
Amendment of the Articles of Incorporation
Horizon's Articles of Incorporation authorize the
alteration, amendment or repeal of certain Articles by the
affirmative vote of holders of at least two-thirds of the
outstanding voting stock. However, if the proposed action is
approved by a vote of at least two-thirds of the directors then
in office, then the vote of holders of only a majority of the
outstanding voting stock of the Company is required to approve
the action. The alteration, amendment or repeal of other Articles
requires approval by the holders of only a majority of the
outstanding voting stock.
Amendment of the Bylaws
Horizon's Articles of Incorporation provide that the Bylaws
may be altered, amended or repealed, or new Bylaws adopted, by
the Board of Directors or the shareholders at a duly constituted
meeting. This action by the Board of Directors requires the vote
of two-thirds of directors then in office. This action by the
shareholders requires the affirmative vote of holders of at least
two-thirds of the outstanding voting stock.
Preferred Stock
The preferred stock, which could be issued in one or more
series and with appropriate voting, conversion or other rights,
could discourage possible acquirers of Horizon from making a
tender offer or other attempt to gain control of Horizon.
LEGAL MATTERS
The legality of the shares and units is being passed upon
for Horizon 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, and have been so included in reliance upon the opinion,
which has been rendered upon the authority of the firm as expert
in accounting and auditing.
ADDITIONAL INFORMATION
Horizon has filed with the SEC a Registration Statement
under the Securities Act covering the securities offered in this
offering. As permitted by the rules and regulations of the SEC,
this prospectus does not contain all of the information contained
in the Registration Statement and its exhibits and reference is
made to the Registration Statement and the exhibits for further
information concerning Horizon and the securities. 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 this material, as well as periodic
reports and information filed by Horizon, can be obtained upon
payment of the fees prescribed by the SEC, or may be examined at
the offices of the SEC without charge, at
* the public reference facilities in Washington, D.C. at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington,
D.C. 20549;
* the Northeast Regional Office in New York at 7 World Trade
Center, Suite 1300, New York, New York 10048; and
* the Midwest Regional Office in Chicago, Illinois at 500 West
Madison Street, Suite 1400, Chicago, Illinois 66661-2511.
The SEC maintains a Web site that contains reports, proxy
and information statements and other information regarding
registrants like us that file electronically with the SEC. The
address of SEC's site is http://www.sec.gov.
Upon request, we will provide without charge to each person
to whom a copy of this prospectus is delivered, a copy of any or
all of the documents which are incorporated here by reference,
other than exhibits to the documents themselves, unless those
exhibits are specifically incorporated by reference into the
documents. Requests should be directed to Charles S. Conoley,
President, at our principal executive offices.
INDEX TO FINANCIAL STATEMENTS
Independent Auditor's Report 38
Balance Sheet as of October 31, 1998 39
Statement of Operations from Date of Inception,
May 27, 1998 to October 31, 1998 40
Statement of Changes in Stockholders' Equity
from Date of Inception, May 27, 1998,
to October 31, 1998 40
Statement of Cash Flows from Date of Inception,
May 27, 1998, to October- 31, 1998 41
Notes to Financial Statements 42
INDEPENDENT AUDITORS' REPORT
To the Board of Directors
Horizon Bancorporation, Inc.
Bradenton, Florida
We have audited the accompanying balance sheet of Horizon
Bancorporation, Inc., Bradenton, Florida, (the "Company") a
development stage enterprise, as of October 31, 1998 and the
related statements of operations, changes in stockholders' equity
and cash flows for the period from May 27, 1998 (date of
inception) to October 31, 1998. These financial statements are
the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial
statements based an our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that
our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Horizon Bancorporation, Inc. as of October 31, 1998, and the
results of its operations and its cash flows for the period from
May 27, 1998 (date of inception) to October 31, 1998, in
conformity with generally accepted accounting principles.
/S/ Francis & Co. CPAs
Atlanta, Georgia
November 9, 1998 Francis & Company
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Balance Sheet
as of October 31, 1998
ASSETS
Cash $ 16,887
Organizational costs (Note 2) 39,539
Deferred registration costs (Note 2) 7,038
Other assets (Note 4) 11,349
Total Assets $ 74,813
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities:
Total Liabilities $ -0-
Commitments and contingencies (Note 4)
Stockholders' Equity (Note 1):
Common stock, $.01 par value,
25,000,000 shares authorized,
21,600 shares issued and outstanding $ 216
Paid-in-capital 107,784
(Deficit) accumulated during
the development stage (33,187)
Total Stockholders, Equity 74,813
Total Liabilities and
Stockholders' Equity $ 74,813
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Statement of Operations
From Inception (May 27, 1998) to October 31, 1998
Revenues;
Interest income $ 975
Total revenues 975
Expenses:
Employee leasing $ 25,978
Insurance expense 2,650
Advertising & promotional 2,956
Rent expense 482
Supplies expense 605
Miscellaneous other expenses 1,491
Total expenses $ 34,162
Net (loss) $(33,187)
Basic (loss) per share (Note 2) $ (1.54)
Statement of Changes in Stockholders' Equity
from Inception (May 27, 1998) to October 31, 1998
(Deficit)
Common Accumulated
Stock Additional During Total
$.01 Paid-in-the DevelopmentStockholders'
Par Value Capital Stage Equity
Issuance of
21,600 shares
of Common stock $216 $107,784 $ -0- $108,000
Net income/(loss) -0- -0- (33,187) (33,187)
Balance,
October 31, 1998 $216 $107,784 $(33,187) $ 74,813
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Statement of Cash Flows
From Inception (May 27, 1998) to October 31, 1998
Cash flows from pre-operating
activities of the development stage:
Net (loss) $ (33,187)
Adjustments to reconcile net (loss) to
net cash used by pre-operating activities
of the development stage:
(Increase) in deferred registration costs (7,038)
(Increase) in organizational costs (39,539)
(Increase) in deposits and
prepaid expenses (10,932)
Net cash used by pre-operating
activities of the development stage $ (90,696)
Cash flows from investing activities
Purchase of fixed assets $ (417)
Net cash used in investing activities $ (417)
Cash flows from financing activities:
Issuance of common stock $ 108,000
Net cash provided from financing activities $ 108,000
Net increase in cash $ 16,887
Cash at inception (May 27, 1998) -0-
Cash on October 31, 1998 $ 16,887
Supplemental disclosures of cash flow information:
Cash paid for:
Interest $ -0-
Income taxes $ -0-
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
Note 1 - Summary of Organization
Manasota Group, Inc. ("Manasota") was incorporated on May 27,
1998, for the purpose of becoming a bank holding company with
respect to a proposed de novo bank, Horizon Bank (the "Bank") to
be located in Bradenton, Florida. Manasota was later renamed
Horizon Bancorporation, Inc., Bradenton, Florida (the "Company").
Accordingly, all financial transaction undertaken by Manasota are
reflected in the Company's financial statements as of October 31,
1998. An application for prior approval to charter a bank was
filed with the Division of Banking, State of Florida ("DBF"). An
application for deposit insurance was filed with the Federal
Deposit Insurance Corporation ("FDIC"). Once the application with
the DEF is approved, two additional applications, both with the
Federal Reserve Board ("FRB"), will be filed; the first for Bank
membership and the second for prior approval to become a bank
holding company. When all regulatory applications are approved
and the minimum stock sale is successfully completed, the Company
will acquire 100 percent of the voting stock of Horizon Bank by
injecting a minimum of $5.0 million into Horizon 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 Horizon 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 $5.050 for a period of ten years from
the date Horizon 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 Horizon Bank or the sale by Horizon Bank of all or
substantially all of its assets. All warrants are subject to
approval by Horizon 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 Horizon 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 Horizon 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 Horizon 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 Horizon 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 Horizon Bank and the
Company, is to be paid $5,000 monthly until Horizon 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 Horizon Bank is opened. The Consulting
Agreement provides for other customary benefits, such as health,
life and disability insurance. Also, upon Horizon 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 $5.50
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 $5.050 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.
TABLE OF CONTENTS
Prospectus Summary 2
Risk Factors 5
The Offering 9
Use of Proceeds 12
Dividend Policy 14
Business 15
Supervision and Regulation 21
Management 24
Certain Transactions 28
Principal Shareholders 31
Description of Securities 33
Legal Matters 36
Experts 36
Additional Information 36
Index to Financial Statements 37
----------
Until May 9, 1999, all dealers that buy, sell or trade these
securities, whether or not participating in this distribution,
may be required to deliver a prospectus. This is in addition to
the dealer's obligation to deliver a prospectus when acting as
underwriters and with respect to their unsold allotments or
subscriptions.
(end of back cover)
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act
(the "Act")provides that a corporation shall have power to
indemnify any person who was or is a party to any proceeding
(other than an action by, or in the right of, the corporation),
by reason of the fact that he or she is or was a director,
officer, or agent of the corporation against liability incurred
in connection with such proceeding, including any appeal thereof,
if he or she acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his or
her conduct was unlawful.
In addition, under Section 607.0850 of the Act, a
corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that the person is or was a director, officer, or agent of
the corporation against expenses and amounts actually and
reasonably incurred in connection with the defense or settlement
of such proceeding, including any appeal thereof. Such
indemnification shall be authorized if such person acted in good
faith and in a manner he or she reasonably believed to be in, or
not opposed to, the best interests of the corporation, except
that no indemnification shall be made in respect of any claim,
issue, or matter as to which such person shall have been adjudged
to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of
competent jurisdiction, shall determine upon application that,
despite the adjudication of liability but in view of all
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall
deem proper.
Any indemnification under Section 607.0850 of the Act,
unless pursuant to a determination by a court, shall be made by
the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, or
agent is proper in the circumstances because he or she has met
the applicable standard of conduct. Such determination shall be
made: (a) by the board of directors by a majority vote of a
quorum consisting of directors who were not parties to such
proceeding; (b) if such quorum is not obtainable or, even if
obtainable, by majority vote of a committee duly designated by
the board of directors (in which directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding; (c) by independent legal
counsel.
Article 9 of the Registrant's By Laws contains provisions
for the indemnification of officers and directors and advancement
of expenses to the fullest extent authorized by the Florida
Business Corporation Act. Article 6 of the Registrant's Articles
of Incorporation contains a provision eliminating or limiting
personal liability of a director of the Registrant to the fullest
extent authorized by the Florida Business Corporation Act.
The Registrant may seek to purchase and maintain directors
and officers liability insurance which insures against
liabilities that directors and officers of the Registrant may
incur in such capacities.
ITEM 2. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration fees 2,079.44
Blue sky fees and expenses 12,000.00
Escrow Agent Fee 1,500.00
Printing Expenses 4,000.00
Legal Fees and Expenses 60,000.00
Accounting Fees 5,000.00
Investment Banking Fee 10,000.00
Expenses of Sales Agent 6,000.00
Miscellaneous Expenses 10,005.56
TOTAL $110,585.00
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.
During the period May 20, 1998 - August 23, 1998, Horizon
issued an aggregate of 21,600 shares of common stock to the
organizers other than Thomas E. Bennett and C. Donald Miller,
Jr., as well as to Warren E. Gagner and Bruce R. Woodruff. In
each case the subscriber was a resident of the State of Florida
and paid $5 per share. There were no underwriting, discounts or
commissions paid with respect to these transactions. Horizon
intends to repurchase these shares at the original purchase price
upon the successful completion of the offering pursuant to the
Redemption Agreement dated as of October 28, 1998.
The sales were made to persons who had access to the kind of
information which registration would disclose and who did not
purchase the shares for resale to the public. Also, these sales
were made for the limited purpose of providing funds for the
continuing evaluation by Horizon of whether it would be feasible
for it to embark upon the formation of a new bank. Accordingly,
these sales constituted transactions by the Company not involving
a public offering, separate and apart from this offering, which
were exempt from registration under Section 4(2) of the
Securities Act of 1933. These securities were also exempt from
registration as part of an interstate issue under Section
3(a)(11) of the Securities Act of 1933.
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.
4.1 Form of Shares Subscription Agreement (included as
Appendix A to the Prospectus)
4.2 Form of Units Subscription Agreement (included as
Appendix B 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 Horizon 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.
6.8 Agency Agreement between the Registrant and Attkisson,
Carter & Akers, dated December 17, 1998.
6.9 Consulting Agreement between the Registrant and Bank
Resources, Inc., dated June 22, 1998.
9 Escrow Agreement between SunTrust Bank, Central
Florida, N. A. and the Registrant, dated October 30,
1998.
10(a)(1) Consent of Francis & Company, CPA's.
10(a)(2) Consent of Dinur & Associates, P.C., (included in
Exhibit 11).
11 Opinion of Dinur & Associates, P. C. regarding the
legality of the securities to be offered.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements of filing a Form SB-
1 and has authorized this Amendment No. 1 to the Registration
Statement to be signed on its behalf by the undersigned, in the
City of Bradenton, State of Florida, on February 9, 1999.
HORIZON BANCORPORATION, INC.
By: ___________________________________________________
Charles S. Conoley, President and Chief Executive Officer
Under the requirements of the Securities Act of 1933, this
Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the date
indicated:
Signature Title Date
_______________________________President and Chief 2/9/99
Charles S. Conoley Executive, Financial and
Accounting Officer/Director
_______________________________Director, Chairman of 2/9/99
Clarence R. Urban the Board of Directors
_______________________________ Director 2/9/99
Thomas C. Bennett, Jr.
_______________________________ Director 2/9/99
Michael Shannon Glasgow
_______________________________ Director 2/9/99
C. Donald Miller, Jr.
_______________________________ Director 2/9/99
Stephen C. Mullen
_______________________________ Director 2/9/99
David K. Scherer
_______________________________ Director 2/9/99
Bruce E. Shackelford
_______________________________ Director 2/9/99
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 4.1
- -----------
HORIZON BANCORPORATION, INC.
SHARES 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 1,116,362 shares
of the Company's Common Stock ("Shares") at a price of $5.50 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 $5.50 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 $5.50 per Share
- -------------------------------------------
Total (Funds Tendered)
- -------------------------------------------
(Signature of Subscriber)
- -------------------------------------------
Name (Please Print)
- -------------------------------------------
(Signature of Subscriber)
- -------------------------------------------
Name (Please Print)
- -------------------------------------------
Date:
Residence Address:
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
City, State and Zip Code
- -------------------------------------------
Social Security Number or other
Taxpayer Identification Number
REGISTRATION INSTRUCTIONS
Name of Names._____________________________
Mailing Address: __________________________
___________________________________________
Social Security Number or
Taxpayer Identification Number _____________
____________________________________________
If certificates will be registered in more than one name, please
print the full name of each person or entity and indicate the
type of legal ownership by using the following abbreviations. If
you fail to identify the type of legal ownership, certificates
for subscriptions made in the name of two or moer persons will be
issued in the names of such persons as joint tenants with right
or survivorship, and not as tenants in common.
TEN COM - As Tenants in Common
TEN ENT - As Tenants by the Entireties
JT TEN - As Joint Tenants with Right of Survivorship and not as
Tenants in Common
UNIF GIFT MIN ACT - Under Uniform Gifts to Minor Act,
Custodian: ______________________________
Minor: ___________________________________
- -----------
EXHIBIT 4.2
- -----------
HORIZON BANCORPORATION, INC.
UNITS 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 243,638 units,
each consisting of one share of the Company's Common Stock and a
warrant to purchase one share of the Company's Common Stock at a
price of $5.50 per unit 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 $5.50 per unit for the number of units 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 units Subscribed at $5.50 per unit
- -------------------------------------------
Total (Funds Tendered)
- -------------------------------------------
(Signature of Subscriber)
- -------------------------------------------
Name (Please Print)
- -------------------------------------------
(Signature of Subscriber)
- -------------------------------------------
Name (Please Print)
- -------------------------------------------
Date:
Residence Address:
- -------------------------------------------
- -------------------------------------------
- -------------------------------------------
City, State and Zip Code
- -------------------------------------------
Social Security Number or other
Taxpayer Identification Number
REGISTRATION INSTRUCTIONS
Name of Names._____________________________
Mailing Address: __________________________
___________________________________________
Social Security Number or
Taxpayer Identification Number _____________
____________________________________________
If certificates will be registered in more than one name, please
print the full name of each person or entity and indicate the
type of legal ownership by using the following abbreviations. If
you fail to identify the type of legal ownership, certificates
for subscriptions made in the name of two or moer persons will be
issued in the names of such persons as joint tenants with right
or survivorship, and not as tenants in common.
TEN COM - As Tenants in Common
TEN ENT - As Tenants by the Entireties
JT TEN - As Joint Tenants with Right of Survivorship and not as
Tenants in Common
UNIF GIFT MIN ACT - Under Uniform Gifts to Minor Act,
Custodian: ______________________________
Minor: ___________________________________
- -----------
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 reque manner
contemplated by the Registration Statement, validly issued, and upon such
issuance, the Shares and Units will be fully paid and
nonassessable.
This firm consents to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
Daniel D. Dinur
DDD/mtl
