Page 143
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
File No. 333-68293
FORM SB-1 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
(Amendment No. 2)
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
(941) 753-2265 Commons
990 Hammond Drive
Suite 760
Atlanta, GA 30328
(770) 395-3170
(Name, Address and Telephone Number of Agent for
Service)
Approximate date of commencement of proposed sale to
the public: as soon as practicable.
If this form is filed to register additional securities
for an Offering pursuant to Rule 462(b) under the Securities
Act, check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same Offering.
[ ]
If this form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration
statement number of the earlier registration statement for
the same Offering. [ ]
If this form is a post-effective amendment filed
pursuant to Rule 462(d) under the Securities Act, check the
following box and list the Securities Act registration
statement number of the earlier registration statement for
the same Offering. [ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, check the following box. [ ]
Calculation of Registration Fee
Title of Dollar Proposed Proposed Amount of
Each Class Amount To Maximum Maximum Registratio
of Be Offering Aggregate n Fee
Securities Registered Price Per Offering
To Be Unit Price
Registered
Common $7,500,000 $5.00 $7,500,000 $2,085
Stock
The registrant hereby amends this registration
statement on such date or dates as may be necessary to delay
its effective date until the registrant shall file a further
amendment which specifically states that is registration
statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date
as the Commission, acting pursuant to said Section 8(a), may
determine.
Disclosure alternative used (check one ):Alternative
1 [ ] Alternative 2 [X]
Cross Reference Sheet Between Form SB-1 (including Model B
of Form 1A)
and Prospectus
SB-1 Items Location or Heading in Prospectus
1. Inside Front and Outside
Back Cover Pages Inside Front and Outside Back
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 Officers and
Significant Employees Management
9. Remuneration of Directors and Officers Management
10. Security Ownership of Certain Security
Holders and Management Principal Shareholders
11. Interest of Management and Others in
Certain Transactions Certain Transactions
12. Securities Being Offered Description of Capital
Stock; Dividend Policy
13. Financial Information Required in
Prospectus Financial Statements
Initial Public Offering
Prospectus
Horizon Bancorporation, Inc.
1,256,000 shares of common stock
$5.00 per share
and
264,000 units
each consisting of one share of common stock
and
one warrant to purchase a share of common stock
$5.00 per unit
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
The Units are being offered only to
the nine organizers who intend to
purchase them.
This is our initial public offering
and no public market currently
exists for our shares. The offering
price may not reflect the market
price of our shares after the
offering.
The Offering
Per Share Total (Minimum) Total (Maximum)
Public Price............... $ 5.00 $4,000,000 $6,180,000
Less: Discounts
and commissions*..........$ 0.15 120,000 294,400
Plus: Proceeds from units 1,320,000 1,320,000
Total proceeds to Horizon...$ 4.85 $5,200,000 $7,205,600
(before $110,585 in estimated expenses)
*We will be offering the shares 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. However, if we so request, the sales agent will
syndicate the offering through brokers. In such case, the
commission will be 8% per share. The computation of the
discounts and commissions in the above table assumes that
shares in excess of the minimum will be syndicated.
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
January 11, 1999
PROSPECTUS SUMMARY
This summary highlights selected information contained
elsewhere in this prospectus. It is not complete and may not
contain all of the information that is important to you. To
understand this offering fully, you should read the entire
prospectus carefully, including the risk factors and
financial statements.
Horizon 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 expect that the charter and insurance will be granted by
the middle of February 1999, and that bank holding
company status and membership in the Federal
Reserve will be obtained by the end of April 1999.
Currently, Horizon operates from temporary
offices. When all of the regulatory approvals are
obtained and 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 such
services until Horizon Bank becomes profitable on
a cumulative basis. 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 are being granted a warrant as an
addition to each share they intend to purchase in
the offering. Each warrant 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 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 1,236,000 shares of $.01 par
value common stock and
264,000 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 1,064,000 if
all the units and only the
800,000 shares minimum
offering are sold, or
1,500,000, if all the units
and the 1,236,000 shares
maximum offering are sold.
Total public price $5,320,000 if all the units
and the 800,000 shares minimum
offering are sold, or
$7,500,000 if all the units
and the 1,236,000 shares
maximum offering are sold.
Estimated offering expenses $110,585
Net proceeds
(after sales commissions) $5,200,000 if the units and
the minimum offering are sold,
assuming a 3% commission on
the 800,000 shares sold, or
$7,205,600 if the units and
the maximum offering are sold,
assuming a 3% commission on
the minimum of 800,000 shares
sold and an 8% commission on
the remaining 436,000 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 with
respect to 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
syndicate the shares remaining
unsold at that time. In such event,
we will pay the sales agent and the
brokers involved in the syndication
an 8% commission with respect to
shares sold in the syndication. If
we elect to syndicate the offering
before the 800,000 minimum shares
are sold, we will increase the
minimum offering so that the net
proceeds still end up not less than
$5,200,000.
Intention by the organizers
to buy shares The organizers intend to buy a
total of 264,000 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 800,000 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 exceeded 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;
* $5,000,000 to capitalize Horizon Bank; and
* To add to the working capital of Horizon.
If the ultimate net proceeds of the
offering exceed $5,200,000, then
50% of the excess over $5,200,000
will be added to the capital of
Horizon Bank and the remaining 50%
will be added to the working
capital of Horizon.
Risk factors Investing in our shares is risky,
and, before investing, you should
determine that you are able to bear
a complete loss of your investment.
See, "Risk Factors."
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:
The offering We fixed the offering price at $5.00 per
price cannot share on the basis of the start-up capital
be supported needs of Horizon Bank and offering prices
by value of of other newly-organized bank holding
assets or companies. This price bears no relationship
earnings. to assets, book value, earnings or other
established criteria of value.
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 which will be
environment; successful only if the difference between
losses are the income earned on loans and investment
likely to securities and from fees minus the interest
occur for at paid on deposits and other sources of funds
least the and general operating expenses is a
first full positive 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 such 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 a lesser 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 such as interest rates and
money supply policies of the Federal
Reserve, inflation, recession,
We may not be unemployment, natural resource prices and
able to policies, international conflicts and other
attract good factors beyond Horizon Bank's control may
employees. adversely affect such spread.
* Success in a commercial banking
business is particularly dependent on
employing experienced and service-oriented
personnel at all levels. We intend and are
already making efforts to hire experienced
lending and operations officers, but have
We could be no assurance that we can staff Horizon Bank
affected by with appropriate personnel when Horizon
unexpected Bank opens for business. We do have an
competition employment agreement with Charles S.
if the law Conoley, who is a very experienced banker
changes. and who is one of the organizers and our
President and Chief Executive Officer.
* By operation of the Glass-Steagal Act,
the commercial banking business has enjoyed
legal barriers to entry by non-banking
enterprises. It is possible that the United
States Congress will repeal the Glass-
Steagal Act in the near future. If this
were to happen, Horizon Bank may face even
greater competition in its primary service
area from large, well-capitalized
enterprises, while at the same time, as
entities which are tightly regulated,
Horizon Bank and Horizon could not
diversify into a non-banking business.
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.
Nevertheless, we do not expect to be
profitable on a current basis until at
least the second full year of operations.
We cannot assure you that we will
ultimately be successful.
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
shares to be developed for at least one
year after the offering. As a result, if
you desire to sell your shares you may be
required to locate a buyer on your own and
may not be able to do so.
Horizon will After the offering, the officers and
be controlled directors will own between 17.6% and 24.81%
by existing of the total shares outstanding, depending
management. on the number of shares sold in the
offering. In addition, the organizers
could, through the exercise of their
warrants, acquire an additional 264,000
shares. Also, when Horizon Bank opens for
business we will grant Charles S. Conoley
options to purchase 3% of the total number
of shares sold in the offering. Moreover,
we are considering the establishment of a
stock option plan for key employees and
directors under which up to 10% of the
total shares could be purchased.
Furthermore, the shareholders will not have
cumulative voting when voting for nominees
to the Board of Directors. As a result, the
officers, directors and organizers may, by
virtue of their ownership of a significant
number of shares, exercise significant
control over selection of the Board of
Directors and Horizon's policies.
It will be Our Articles of Incorporation and Bylaws
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
800,000 shares, representing the minimum offering, have not
been subscribed to. However, the 800,000 share minimum is
based on the assumption that all such shares are sold by the
sales agent earning the 3% commission and not through
syndication where an 8% commission applies. If any of these
shares are sold through syndication, because we asked the
sales agent to do so, the 800,000 shares minimum will be
increased to allow the proceeds of the offering net of
commissions paid to be at least $5,200,000. We reserve the
right to terminate the offering before the expiration date
even if the maximum offering of 1,236,000 shares has not
been subscribed for as long as all the units and the 800,000
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. Such
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 such
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 $5,200,000 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 264,000
shares. The organizers may, but are not obligated to,
purchase additional shares if such purchases are necessary
to complete the minimum offering. No warrants will accompany
such 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 such condition 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 with respect to 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 syndicate the shares then remaining
unsold by arranging for a group , called a "syndicate," of
brokers to sell such shares. If a syndication occurs, we
will pay the sales agent and the brokers a commission of 8%
with respect to all shares sold in the syndication. 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 such 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
immediately transmit all such checks to the escrow agent.
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 such proceeds
are actually released to us.
Method of Subscription
The minimum subscription is 100 shares or $500, but we
reserve the right to accept subscriptions for less than the
minimum subscription.
In order to purchase shares, you must:
* Complete and sign the subscription agreement
accompanying this prospectus;
* Make full payment for the purchase price for the shares
in United States currency by check, bank draft or money
order payable to "Horizon Bancorporation, Inc. Escrow
Account;" and
* Deliver the subscription agreement, in person or by
mail, together with full payment for the purchase price, to
Charles S. Conoley, Suite C, 3005-26th Street West,
Bradenton, Florida 34205
The escrow agent will invest subscription proceeds in
short-term, interest- bearing government securities or bank
certificates of deposit until released from the escrow
account. The escrow agent, by accepting appointment, in no
way endorses the purchase of shares by any person.
The respective rights and obligations of Horizon and
the escrow agent are 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 pending satisfaction
of the conditions listed above will not be considered an
acceptance of the subscription to which the funds relate. We
reserve the right to accept or reject subscriptions, in
whole or in part, in our sole discretion. This permits us to
refuse to sell shares to any person submitting a
subscription agreement or to accept part but not all of a
subscription so that a subscriber might ultimately be issued
fewer than the full number of shares for which he or she
subscribes. In determining which subscriptions to accept, in
whole or in part, we may take into account the order in
which subscriptions are received and a subscriber's
potential to do business with, or to refer customers to,
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 such
rejection. In the event we do not receive all of the
regulatory approvals, all subscription proceeds will be
returned promptly by mail in full without interest. All
costs and expenses of the offering and of organizing Horizon
and Horizon Bank, in excess of interest earned on
subscription proceeds, will be borne by the organizers in
the event all subscriptions are canceled.
We will issue and mail certificates representing the
shares as soon as practicable after subscription proceeds
are released from the escrow account.
USE OF PROCEEDS
We have been funding organizational expenses and
offering expenses from the $108,000 capital contribution
made to Horizon by the organizers by purchasing 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 such expenses. This pre-
opening loan has been guaranteed, on a several, pro rata
basis, by the organizers other than Messrs. Bennett and
Miller. We received the commitment for 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
such organizational and offering expenses through the date
of the completion of the offering and release of
subscription proceeds from escrow. We expect that such
balance 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) $5,200,000(1) $7,205,600(2)
========= =========
Anticipated use of proceeds
by the Company:
Offering expenses(3) 110,585 110,585
Organizational expenses(4) 10,000 10,000
Working capital 79,415 1,082,215
Capitalization of Horizon Bank
through purchase of common
stock of Horizon Bank 5,000,000 6,002,800
--------- ---------
Total $5,200,000 $7,205,600
========= =========
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 3,393,620 4,396,420
--------- ---------
Total $5,000,000 $6,002,800
========= =========
(1) Assuming the sale of 264,000 units and 800,000 shares at a
price of $5.00 per unit and share, with a 3% commission,
equal to $120,000.
(2) Assuming the sale of 264,000 units and 1,236,000 shares,
at a price of $5.00 per unit and share, with a 3% commission
with respect to 800,000 shares and an 8% commission with
respect to the other 436,000 shares, for a total commission
equal to $294,000.
(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 such addition
may be necessary. We will also use it for expenses incurred
by Horizon and, possibly, for future acquisitions.
The above table contains estimates only and assumes
that Horizon Bank will be capitalized on May 1, 1999. A
change in such date and other circumstances on which the
assumptions underlying these estimates have been based may
cause the actual use of proceeds to vary from these
estimates.
DIVIDEND POLICY
In order to preserve capital to facilitate growth and
expansion, we do not anticipate paying cash dividends on the
shares in the immediate future. The Board of Directors will
make a determination whether to pay cash dividends on the
basis of operating results, financial condition, tax
considerations, and other relevant factors. Also, at
present, the only source of funds from which we could pay
cash dividends would be dividends paid to Horizon by 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 such dividends, once
declared, would continue.
BUSINESS
Horizon
Horizon was incorporated in the State of Florida on May
27, 1998, under the name of Manasota Group, Inc. In
anticipation of the filing for regulatory approval for
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 customary 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 its business activities, such as
through newly formed subsidiaries or through acquisitions.
While we have no present plans to engage actively in any
other business activities, we will study the feasibility of
establishing or acquiring subsidiaries to engage in other
business activities 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 which
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
which 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 such date of at least the minimum offering and
sale of all of the units.
The organizers developed a market analysis with respect
to the proposed primary service area and a proprietary
business plan that were included in their applications to
the regulatory authorities. 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 with regard 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 in excess of $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 such accounts are
interest rates, the range of financial services offered,
convenience of office locations and flexible office hours.
Direct competition for such accounts comes from other
commercial banks, savings institutions, credit unions,
brokerage firms and money market funds. The primary factors
in competing for loans are interest rates, loan origination
fees and the range of lending services offered. Competition
for origination of loans normally comes from other
commercial banks, savings institutions, credit unions and
mortgage banking firms. Such entities may have competitive
advantages as a result of greater resources and higher
lending limits (by virtue of their greater capitalization).
Such competitors also may offer their customers certain
services which 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 deposit and withdrawal transactions would
be conducted. We believe that use of the modular office will
permit Horizon Bank to generate revenues and deposit
balances, the benefits of which would 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 such services directly.
Lending Activities
Horizon Bank will seek to attract deposits from the
general public and will use such deposits, together with
borrowings and other sources of funds, to originate and
purchase loans. 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 with respect
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 matters such as the borrower's credit history,
analyze the borrower's income and ability to service the
loan and evaluate the need for collateral to secure recovery
in the event of default.
Under Florida law, 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 the loan in
excess of 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, such as 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 which 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 deposits 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 such activities are
anticipated to be provided principally by operating
revenues, deposit growth, purchase of Federal funds from
other banks, repayment of outstanding loans and sale of
loans and investment securities.
SUPERVISION AND REGULATION
We provide the following as a summary of statutes and
regulations affecting bank holding companies. Such summary
is qualified in its entirety by reference to such statutes
and regulations.
Supervision and Regulation of Horizon
Horizon will be a bank holding company within the
meaning of the Federal Bank Holding Company Act of 1956. As
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 such as Horizon Bank, the
Federal Reserve has the authority to prevent the continuance
or development of unsound and unsafe banking practices, to
approve conversions, mergers and consolidations.
As a member of the Federal Reserve, Horizon Bank will
also have to comply with rules which 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 of a minimum ratio of Tier 1 capital to
total assets. This capital measure is generally referred to
as the leverage capital ratio. The minimum required leverage
capital ratio is 4 percent if the 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. With respect to the leverage capital ratio, Horizon
Bank would then be required to maintain a 5 percent ratio.
Monetary Policy
Banking is a business that depends on interest rate
differentials. The difference between the interest rates
paid by 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 (as opposed to fiscal policy), such as
seeking to curb inflation and combat recession, by its open
market operations in United States government securities,
adjustments in the amount of industry reserves that banks
and other financial institutions are required to maintain
and adjustments to the discount rates applicable to
borrowings by banks from the Federal Reserve. 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.
Such a company may, however, acquire a Florida bank or bank
holding company, provided that the Florida bank involved is
at least three years old. These interstate acquisitions are
prohibited 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. Such legislation could further
eliminate geographic restrictions on banks and bank holding
companies and current prohibitions against banks engaging in
certain non-banking activities. Such legislative changes
could place us in more direct competition with other
financial institutions, including mutual funds, securities
brokerage firms, insurance companies and investment banking
firms. We cannot predict what other legislation might be
enacted, and if enacted, the effect thereof.
MANAGEMENT
Directors and Executive Officers
The current members of the Board of Directors of
Horizon are the nine organizers. They are divided into three
classes that serve staggered three-year terms. The members
of one class are elected at each annual meeting of
shareholders and hold office until the third annual meeting
following their election or until successors are elected and
qualified. The following table sets forth certain
information with respect to the current directors and
executive officers of Horizon and 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 Director
Shackelford
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
5144-9th 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 such time as
Horizon Bank has become profitable on a cumulative basis.
Charles S. Conoley and Horizon have entered into a
Consulting Agreement, dated June 8, 1998, describing Mr.
Conoley's duties on behalf of Horizon in connection with the
organization of 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 $5.00 and an
expiration date of ten years from the date of issue.
Under the employment agreement, Mr. Conoley would also
be entitled to employee benefits, such as an annual
vacation, the use of 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 such
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
such provision if liability is based on any of these
grounds. Liability for monetary damages for violations of
Federal securities laws would also remain unaffected. The
provision does not eliminate a director's fiduciary duty,
nor does it preclude a shareholder from pursuing injunctive
or other equitable remedies. The provision was prompted in
part by adverse changes in the cost and availability of
director and officer liability insurance and by a concern
that corporations would encounter difficulties in attracting
and retaining qualified directors. We believe this provision
in is essential to maintain and improve our ability to
attract and retain competent directors.
We are advised that, insofar as indemnification of
directors, officers and controlling persons for liabilities
arising under the Securities Act of 1933, such
indemnification is against public policy and is, therefore,
unenforceable.
CERTAIN TRANSACTIONS
Organizers' and Directors Shares, Warrants and Stock Options
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 260,000 shares. In
addition, two additional organizers, Thomas C. Bennett, Jr.
and C. Donald Miller, Jr., in the aggregate intend to
subscribe to 4,000 shares. The organizers may, but are not
obligated to, purchase additional shares if such purchases
are necessary to complete the minimum offering. 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 $5.00 per share.
The warrants are not immediately exercisable. The right
to exercise the warrants will vest with respect to one-third
(1/3) of the shares 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 such 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, such 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 on a cumulative basis. 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.
In such case, 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 such
persons or entities will be made in accordance with
applicable law and on substantially the same terms,
including interest rates and collateral, as those prevailing
at the time for comparable transactions with other persons
or entities of similar standing. In addition, any loans to
executive officers, directors or their related interests in
excess of $25,000 will require the prior approval of a
majority of the entire Board of Directors as provided under
Florida law. All future transactions with affiliates will be
on terms no less favorable than could be obtained from an
unaffiliated third party and 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, 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 $5.00 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, if he so elects. 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 such 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. 2,000 .188% .13% 2,000
Organizer and Director
Charles S. Conoley 40,000 3.759% 2.66% 40,000
Organizer, Director and CEO
Michael Shannon Glasgow
Organizer and Director
50,000 4.699% 3.33% 50,000
C. Donald Miller, Jr. 2,000 .188% .13% 2,000
Organizer and Director
Stephen C. Mullen 25,000 2.350% 1.66% 25,000
Organizer and Director
David K. Scherer 40,000 3.759% 2.66% 40,000
Organizer and Director
Bruce E. Shackelford 25,000 2.350% 1.66% 25,000
Organizer and Director
Mary Ann P. Turner 40,000 3.759% 2.66% 40,000
Organizer and Director
Clarence R. Urban 40,000 3.759% 2.66% 40,000
Organizer and Director ------ ------ ----- -------
TOTAL 264,000 24.81% 17.60% 264,000
- -------------------------------------------------------------
Except as otherwise indicated, the persons named in the
above table will have sole voting and investment power with
respect to all shares shown as beneficially owned by them.
Also, these numbers do not reflect any additional shares
which the organizers may purchase if such purchases are
necessary to complete the minimum offering or shares which
may be purchased by any additional directors or officers of
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
---------------------- --------------- ----------------
31,500(1)/45,000(2) $5.00 N/A
(1) Assumes the minimum offering of 800,000 shares and 264,000
units.
(2) Assumes the maximum offering of 1,236,000 shares and
264,000 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 such 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 and there are no redemption or sinking
fund provisions with respect to the shares. The shares, upon
payment therefor, will be fully paid and non assessable.
Preferred Stock
Horizon is authorized by its Articles of Incorporation
to issue up to 1,000,000 shares of preferred stock, $.01 par
value per share. No shares of preferred stock have been
issued. The Board of Directors may, in its sole discretion
and without further action by the shareholders, from time to
time, direct the issuance of preferred stock, in one or more
series, for any proper corporate purpose with such
preferences, voting powers, conversion rights,
qualifications, special or relative rights, and privileges
as the Board of Directors may determine. These terms of the
preferred stock could adversely affect the voting power or
other rights of holders of the shares. Satisfaction of any
dividend preferences on outstanding preferred stock would
reduce the amount of funds available for the payment of
dividends on the shares. In addition, the holders of
preferred stock would normally be entitled to receive a
preference payment in the event of any liquidation,
dissolution or winding-up of Horizon before any payment is
made to the holders of the shares. The Board of Directors
has no present plans or understandings for the issuance of
any preferred stock and does not intend to issue any
preferred stock except on terms which the Board deems to be
in the best interest of Horizon and its shareholders.
Warrants
The warrants to be issued as part of the units are
detachable, ten-year rights to purchase one share, at $5.00
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
264,000 warrants and a minimum of 1,064,000 shares and a
maximum of 1,500,000 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 such "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 such sale. Non-affiliates who have
held their restricted securities for at least two years
would be entitled to sell such securities under Rule 144
without regard to the volume limitation.
Defensive Anti-Takeover Provisions
General
The provisions of Horizon's Articles of Incorporation
and Bylaws described below 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 which may not be
negotiated with and approved by the Board of Directors. We
believe that it is in the best interest of Horizon and our
shareholders to encourage potential acquirers to negotiate
directly with the Board and that these provisions will
encourage such negotiations and discourage hostile takeover
attempts. It is also our view that these "anti-takeover"
provisions should not discourage persons from proposing an
acquisition or other transaction at prices reflective of the
true value of Horizon which is in the best interest of all
shareholders. To be sure, 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
which must be as close to equal in size as possible. The
members of each class serve three-year terms with of each
class being elected in successive years. Our Bylaws provide
that the size of the Board of Directors, within the six to
twenty member range specified in the Articles of
Incorporation, may be increased or decreased only by a
majority vote of the directors then in office. The Articles
of Incorporation provide that any vacancies occurring on the
Board of Directors, including a vacancy created by an
increase in the number of directors, shall be filled for the
remainder of the unexpired term only by a majority vote of
the directors then in office.
Removal of Directors
Horizon's Articles of Incorporation provide that no
director may be removed except for cause and then only by
the vote of holders of at least two-thirds of the
outstanding voting stock entitled to vote. However, if two-
thirds of the directors then in office approve the removal,
then the vote of the holders of only a majority of the
outstanding voting stock is required to remove a director.
Special Meetings of Shareholders
Horizon's Articles of Incorporation provide that a
special meeting of shareholders may be called by the
Chairman of the Board, by a majority vote of the directors
then in office or by the holders of at least 25% of the
outstanding voting stock.
No Action By Written Consent
Horizon's Articles of Incorporation provide that the
shareholders shall not be entitled to take any action by
written consent in lieu of taking such action at an annual
or special meeting of shareholders.
Approval of Certain Business Transactions
Horizon's Articles of Incorporation provide that the
vote of holders of at least two-thirds of the outstanding
voting stock is required to approve certain mergers,
consolidations or dispositions of assets of Horizon or any
of its subsidiaries. However, if the proposed transaction is
approved by the vote of at least two-thirds of the directors
then in office, then the vote of holders of only a majority
of the outstanding voting stock is required to approve such
transaction.
Amendment of the Articles of Incorporation
Horizon's Articles of Incorporation authorize the
alteration, amendment or repeal of certain Articles by the
affirmative vote of holders of at least two-thirds of the
outstanding voting stock. However, if the proposed action is
approved by a vote of at least two-thirds of the directors
then in office, then the vote of holders of only a majority
of the outstanding voting stock of the Company is required
to approve such action. The alteration, amendment or repeal
of other Articles requires approval by the holders of only a
majority of the outstanding voting stock.
Amendment of the Bylaws
Horizon's Articles of Incorporation provide that the
Bylaws may be altered, amended or repealed, or new Bylaws
adopted, by the Board of Directors or the shareholders at a
duly constituted meeting. Such action by the Board of
Directors requires the vote of two-thirds of directors then
in office. Such action by the shareholders requires the
affirmative vote of holders of at least two-thirds of the
outstanding voting stock.
Preferred Stock
The preferred stock, which could be issued in one or
more series and with appropriate voting, conversion or other
rights, could discourage possible acquirers of Horizon from
making a tender offer or other attempt to gain control of
Horizon.
LEGAL MATTERS
The legality of the shares 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, appearing elsewhere herein, and have been
so included in reliance upon such opinion given upon the
authority of such firm as expert in accounting and auditing.
ADDITIONAL INFORMATION
Horizon has filed a Registration Statement under the
Securities Act with SEC, with respect to the securities
offered hereby 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 y to the Registration Statement is
qualified by reference to the exhibit for a complete
statement of its terms and conditions. Copies of such
material, as well as periodic reports and information filed
by Horizon, can be obtained upon payment of the fees
prescribed by the SEC, or may be examined at the offices of
the SEC without charge, at
* the public reference facilities in Washington, D.C. at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549;
* the Northeast Regional Office in New York at 7 World
Trade Center, Suite 1300, New York, New York 10048; and
* the Midwest Regional Office in Chicago, Illinois at 500
West Madison Street, Suite 1400, Chicago, Illinois 66661-
2511.
The SEC maintains a Web site that contains reports,
proxy and information statements and other information
regarding registrants like us that file electronically with
the SEC (the address of such site is http://www.sec.gov).
We will provide without charge to each person to whom a
copy of this Prospectus is delivered, upon the written or
oral request of such person, a copy of any or all of the
documents which are incorporated by reference herein, other
than exhibits to such documents (unless such exhibits are
specifically incorporated by reference into such documents).
Requests should be directed to Charles S. Conoley,
President, at our principal executive offices.
INDEX TO FINANCIAL STATEMENTS
Independent Auditor's Report 31
Balance Sheet as of October 31, 1998...................32
Statement of Operations from Date of Inception,
May 27, 1998 to October 31, 1998.....................33
Statement of Changes in Stockholders' Equity
from Date of Inception, May 27, 1998,
to October 31, 1998..................................33
Statement of Cash Flows from Date of Inception,
May 27, 1998, to October- 31, 1998...................34
Notes to Financial Statements..........................35
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 Development Stockholders'
Par Value Capital Stage Equity
--------- ----------- ----------- -----------
Issuance of
21,600 shares
of Common stock $216 $107,784 $ -0- $108,000
Net income/(loss) -0- -0- (33,187) (33,187)
---- -------- --------- --------
Balance,
October 31, 1998 $216 $107,784 $(33,187) $ 74,813
==== ======== ========= ========
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Statement of Cash Flows
From Inception (May 27, 1998) to October 31, 1998
Cash flows from pre-operating
activities of the development stage:
Net (loss) $ (33,187)
Adjustments to reconcile net (loss) to
net cash used by pre-operating activities
of the development stage:
(Increase) in deferred registration costs (7,038)
(Increase) in organizational costs (39,539)
(Increase) in deposits and prepaid expenses (10,932)
Net cash used by pre-operating
activities of the development stage $ (90,696)
Cash flows from investing activities
Purchase of fixed assets $ (417)
Net cash used in investing activities $ (417)
Cash flows from financing activities:
Issuance of common stock $ 108,000
Net cash provided from financing activities $ 108,000
Net increase in cash $ 16,887
Cash at inception (May 27, 1998) -0-
Cash on October 31, 1998 $ 16,887
Supplemental disclosures of cash flow information:
Cash paid for:
Interest $ -0-
Income taxes $ -0-
Refer to notes to the financial statements.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
Note 1 - Summary of Organization
Manasota Group, Inc. ("Manasota") was incorporated on
May 27, 1998, for the purpose of becoming a bank holding
company with respect to a proposed de novo bank, Horizon
Bank (the "Bank") to be located in Bradenton, Florida.
Manasota was later renamed Horizon Bancorporation, Inc.,
Bradenton, Florida (the "Company"). Accordingly, all
financial transaction undertaken by Manasota are reflected
in the Company's financial statements as of October 31,
1998. An application for prior approval to charter a bank
was filed with the Division of Banking, State of Florida
("DBF"). An application for deposit insurance was filed with
the Federal Deposit Insurance Corporation ("FDIC"). Once
the application with the DEF is approved, two additional
applications, both with the Federal Reserve Board ("FRB"),
will be filed; the first for Bank membership and the second
for prior approval to become a bank holding company. When
all regulatory applications are approved and the minimum
stock sale is successfully completed, the Company will
acquire 100 percent of the voting stock of 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.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
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 $5.00 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 $5.00 and an expiration
date of ten years from the date of issue.
A consultant who is assisting the Company and the
proposed Bank in obtaining all regulatory approvals required
to operate both a bank holding company and a bank will
receive
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
4,000 stock options upon receipt of approval from the DBF to
operate a bank. These Options allow their holder to
purchase 4,000 shares of the Company's common stock at an
exercise price of $5.00 per share. These options would vest
immediately and would he exercisable within ten years from
the date of grant.
The organizers as a group capitalized the Company by
acquiring 21,600 shares of the Company's common stock for an
aggregate amount of $108,000. These shares will be redeemed
and $108,000 will be returned to the organizers once the
minimum offering is satisfied.
On September 30, 1998, the Company entered into an
agreement to purchase a 1.05 acre parcel for $407,500. The
land will be used as the site for the proposed Bank's main
office. An earnest money deposit in the amount of $10,000
has been deposited with an escrow agent and is reflected
under "other assets" in the Company's Balance sheet dated
October 31, 1998. An additional $40,000 is due upon local
government approval of the site plan and usage. Assuming
all contingencies, such as regulatory approvals to operate
both a holding company and a bank, are satisfied, the final
transaction to purchase the site should be completed no
later than March 24, 1999. The proposed Bank intends to
build a one-story facility with approximately 5,000 square
feet (expandable to 7,000 square feet) of finished space.
Total construction costs are estimated at $665,000, with an
additional estimate of $258,000 for furniture and equipment.
On October 8, 1998, the Company entered into a one-year
lease arrangement, with a minimum of nine months, covering
office space from which it currently operates. The monthly
cost of the lease is $450.
Please refer to Note 1 concerning warrants to
organizers.
Note 4 - Other Assets
Other assets at October 31, 1998, consisted of the
following:
a. Escrow deposit for land purchase $10,000
b. Prepaid rent and rent deposit 932
c. Fixed assets, net 417
Total other assets $11,349
Note 5 - Related Party Transactions
Please refer to Note 1 for a discussion concerning the
organizers' warrants.
Please refer to Note 3 for discussions concerning:
(i) The CEO's Consulting Agreement and Employment
Agreement, and;
(ii) The redemption of the organizers' common
stock.
Horizon Bancorporation, Inc.
(A Development Stage Enterprise)
Notes to Financial Statements
October 31, 1998
Note 6 - Subsequent Events
In order to fund expenses incurred during the
organizational stage, the Company obtained a Commitment
Letter (the "Commitment") from an unrelated financial
institution and accepted it on November 5, 1998. The
Commitment is in the amount of $300,000 and in the form of a
one-year non-revolving line of credit. The line of credit
carries an interest rate of prime minus l%, with interest
payable monthly. The collateral includes the Company's
furniture, equipment and leasehold improvements, as well as
the personal guarantees of certain organizers.
TABLE OF CONTENTS
Prospectus Summary 2
Risk Factors 4
The Offering 8
Use of Proceeds 10
Dividend Policy 11
Business 11
Supervision and Regulation 16
Management 19
Certain Transactions 22
Principal Shareholders 24
Description of Securities 26
Legal Matters 28
Experts 28
Additional Information 29
Index to Financial Statements 30
----------
Until March __ 1999, all dealers that buy, sell or
trade these securities, whether or not participating in this
distribution, may be required to deliver a prospectus. This
is in addition to the dealer's obligation to deliver a
prospectus when acting as underwriters and with respect to
their unsold allotments or subscriptions.
(end of back cover)
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 1. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation
Act (the "Act")provides that a corporation shall have power
to indemnify any person who was or is a party to any
proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he or she is or was
a director, officer, or agent of the corporation against
liability incurred in connection with such proceeding,
including any appeal thereof, if he or she acted in good
faith and in a manner he or she reasonably believed to be
in, or not opposed to, the best interests of the corporation
and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his or her conduct was
unlawful.
In addition, under Section 607.0850 of the Act, a
corporation shall have power to indemnify any person, who
was or is a party to any proceeding by or in the right of
the corporation to procure a judgment in its favor by reason
of the fact that the person is or was a director, officer,
or agent of the corporation against expenses and amounts
actually and reasonably incurred in connection with the
defense or settlement of such proceeding, including any
appeal thereof. Such indemnification shall be authorized if
such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best
interests of the corporation, except that no indemnification
shall be made in respect of any claim, issue, or matter as
to which such person shall have been adjudged to be liable
unless, and only to the extent that, the court in which such
proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite
the adjudication of liability but in view of all
circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which
such court shall deem proper.
Any indemnification under Section 607.0850 of the Act,
unless pursuant to a determination by a court, shall be made
by the corporation only as authorized in the specific case
upon a determination that indemnification of the director,
officer, or agent is proper in the circumstances because he
or she has met the applicable standard of conduct. Such
determination shall be made: (a) by the board of directors
by a majority vote of a quorum consisting of directors who
were not parties to such proceeding; (b) if such quorum is
not obtainable or, even if obtainable, by majority vote of a
committee duly designated by the board of directors (in
which directors who are parties may participate) consisting
solely of two or more directors not at the time parties to
the proceeding; (c) by independent legal counsel.
Article 9 of the Registrant's By Laws contains
provisions for the indemnification of officers and directors
and advancement of expenses to the fullest extent authorized
by the Florida Business Corporation Act. Article 6 of the
Registrant's Articles of Incorporation contains a provision
eliminating or limiting personal liability of a director of
the Registrant to the fullest extent authorized by the
Florida Business Corporation Act.
The Registrant may seek to purchase and maintain
directors and officers liability insurance which insures
against liabilities that directors and officers of the
Registrant may incur in such capacities.
ITEM 2. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC Registration fees 2,085
Blue sky fees and expenses 12,000
Escrow Agent Fee 1,500
Printing Expenses 4,000
Legal Fees and Expenses 60,000
Accounting Fees 5,000
Investment Banking Fee 10,000
Expenses of Sales Agent 6,000
Miscellaneous Expenses 10,000
TOTAL $110,585
ITEM 3. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes as
follows:
(1) The Registrant will file, during any period in
which it offers or sells securities, a post-
effective amendment to this Registration Statement
to:
(i) include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as
amended (the "Securities Act");
(ii) reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information in the
Registration Statement; and
(iii) include any additional or changed
material information in the plan of
distribution.
(2) The Registrant will, for determining liability
under the Securities Act, treat each post-
effective amendment as a new registration
statement of the securities offered, and the
Offering of the securities at that time to be the
initial bona fide Offering.
(3) The Registrant will file a post-effective
amendment to remove from registration any of the
securities that remain unsold at the end of the
Offering.
(4) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange
Commission such indemnification is against public
policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a
claim for indemnification against such liabilities
(other than the payment by the Registrant of
expenses incurred or paid by a director, officer
or controlling person of the Registrant in the
successful defense of any action, suit or
proceeding) is asserted by such director, officer
or controlling person in connection with the
securities being registered, the Registrant will,
unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the
question whether such indemnification by it is
against public policy as expressed in the
Securities Act and will be governed by the final
adjudication of such issue.
ITEM 4. UNREGISTERED SECURITIES ISSUED OR SOLD WITHIN ONE
YEAR.
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. 2
to the Registration Statement to be signed on its behalf by
the undersigned, in the City of Bradenton, State of Florida,
on January 11, 1999.
HORIZON BANCORPORATION, INC.
By: ___________/S/_______________________________________
Charles S. Conoley, President and Chief Executive Officer
Under the requirements of the Securities Act of 1933,
this Amendment No. 2 to the Registration Statement has been
signed by the following persons in the capacities and on the
date indicated:
Signature Title Date
___________/S/__________________President and Chief 1/11/99
Charles S. Conoley Executive, Financial and
Accounting Officer/Director
___________/S/__________________Director, Chairman of 1/11/99
Clarence R. Urban the Board of Directors
___________/S/__________________Director 1/11/99
Thomas C. Bennett, Jr.
___________/S/__________________Director 1/11/99
Michael Shannon Glasgow
___________/S/__________________Director 1/11/99
C. Donald Miller, Jr.
___________/S/__________________Director 1/11/99
Stephen C. Mullen
___________/S/__________________Director 1/11/99
David K. Scherer
___________/S/__________________Director 1/11/99
Bruce E. Shackelford
___________/S/__________________Director 1/11/99
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 two
thirds 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 unde this Article and
the delegation of authorit 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 1,236,000 shares of the
Company's Common Stock at a price of $5.00 per
share payable as provided herein and as described
in and offered pursuant to the Prospectus
furnished to the undersigned herewith (the
"Prospectus").
1. Subscription. Subject to the terms and conditions
hereof, the undersigned hereby tenders this subscription,
together with payment indicated below in United States
currency by check, bank draft or money order payable to
"Horizon Bancorporation, Inc. - Escrow Account",
representing the payment of $5.00 per share for the number
of shares indicated below. The total subscription price
must be paid at the time the Subscription Agreement is
executed.
2. Acceptance of Subscription. It is understood and
agreed that the Company shall have the right to accept or
reject this subscription in whole or in part, for any reason
whatsoever. The Company may reduce the number of shares for
which the undersigned has subscribed, indicating acceptance
of less than all of the shares subscribed on its written
form of acceptance.
3. Acknowledgments. The undersigned hereby
acknowledges receipt of a copy of the Prospectus, and
represents that this subscription is made solely on the
basis of the information contained in the Prospectus and is
not made in reliance on any inducement, representation or
statement not contained in the Prospectus. The undersigned
understands that no person (including any officer or
director) has authority to give any information or make any
representation not contained in the Prospectus, and if given
or made, such information and representations should not be
relied upon as having been made by the officers or directors
or the Company. This Subscription Agreement and the
Prospectus contain the entire agreement and understanding
among the undersigned, the officers and directors and the
Company with respect to the offering and sale of shares to
the undersigned. This Subscription Agreement creates a
legally binding obligation, and the undersigned agrees to be
bound by the terms of this Agreement.
4. Revocation. The undersigned agrees that once this
Subscription Agreement is tendered to the Company it may not
be withdrawn by the undersigned and that this Agreement
shall survive the death or disability of the undersigned.
By executing this Agreement, the subscriber is not
waiving any rights he or she may have under federal
securities laws, including the Securities Act of 1933 and
the Securities Exchange Act of 1934.
Please indicate in the space provided below ("Registration
Instructions") the exact name or names and address in which
the stock certificate representing shares subscribed for
hereunder should be registered.
- -------------------------------------------
No. of shares Subscribed at $5.00 per share
- -------------------------------------------
Total (Funds Tendered)
- -------------------------------------------
(Signature of Subscriber)
- -------------------------------------------
Name (Please Print)
- -------------------------------------------
(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 or Names:
- -------------------------------------------
Mailing Address:
- -------------------------------------------
- -------------------------------------------
Social Security Number or
Taxpayer Identification
- -------------------------------------------
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 more persons will be issued in the names of such
persons as joint tenants with right of 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:
- -------------------------------------------
FEDERAL INCOME TAX BACKUP WITHHOLDING
In order to prevent the application of federal income tax
backup withholding, each subscriber must provide the Escrow
Agent with a correct Taxpayer Identification Number ("TIN").
An individual's social security number is his or her TIN.
The TIN should be provided in the space provided in the
Substitute Form W-9, which is set forth below.
Under federal income tax law, any person who is required to
furnish his or her correct TIN to another person, and who
fails to comply with such requirements, may be subject to a
$50 penalty imposed by the IRS.
If backup withholding applies, the Escrow Agent is required
to withhold 20% of payments of interest made to such
subscriber. Backup withholding is not an additional tax.
Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld.
If backup withholding results in an overpayment of taxes, a
refund may be obtained from the IRS. Certain taxpayers,
including all corporations, are not subject to these backup
withholding and reporting requirements.
If the shareholder has not been issued a TIN and has applied
or intends to apply for a TIN in the near future, then
"Applied For" should be written in the space provided for
the TIN on the Substitute Form W-9. In such case, if the
Escrow Agent is not provided with a TIN within 60 days then,
the Escrow Agent will withhold 20% of interest payments
thereafter made to each subscriber until a TIN is provided
to the Escrow Agent.
SUBSTITUTE FORM W-9
Under penalties of perjury, I certify that: (1) The number
shown on this form is my correct Taxpayer Identification
Number or I am waiting for a Taxpayer Identification Number
to be issued to me, and (2) I am not subject to backup
withholding because: (a) I am exempt from backup
withholding; or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup
withholding as a result of a failure to report all interest
or dividends; or (c) the IRS has notified me that I am no
longer subject to backup withholding.
You must cross out item (2) above if you have been notified
by the IRS that you are subject to backup withholding
because of under-reporting interest or dividends on your tax
return. However, if after being notified by the IRS that
you were subject to backup withholding you received another
notification from the IRS that you are no longer subject to
backup withholding, do not cross out item (2).
Each Subscriber Should Complete this Section.
- -------------------------------------------
Signature of Subscriber
- -------------------------------------------
Printed Name
- -------------------------------------------
Social Security or Employer Identification No.
- -------------------------------------------
Signature of Subscriber
- -------------------------------------------
Printed Name
- -------------------------------------------
Social Security or Employer Identification No.
TO BE COMPLETED BY THE COMPANY;
Accepted as of , , as to shares.
HORIZON BANCORPORATION, INC.
By:
----------------------------------------
- -----------
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 264,000
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 $5.00 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 $5.00 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 units for
which the undersigned has subscribed, indicating acceptance
of less than all of the units 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 units 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 units subscribed for
hereunder should be registered.
- -------------------------------------------
No. of units Subscribed at $5.00 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 or Names:
- -------------------------------------------
Mailing Address:
- -------------------------------------------
- -------------------------------------------
Social Security Number or
Taxpayer Identification
- -------------------------------------------
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 more persons will be issued in the names of such
persons as joint tenants with right of 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:
- -------------------------------------------
FEDERAL INCOME TAX BACKUP WITHHOLDING
In order to prevent the application of federal income tax
backup withholding, each subscriber must provide the Escrow
Agent with a correct Taxpayer Identification Number ("TIN").
An individual's social security number is his or her TIN.
The TIN should be provided in the space provided in the
Substitute Form W-9, which is set forth below.
Under federal income tax law, any person who is required to
furnish his or her correct TIN to another person, and who
fails to comply with such requirements, may be subject to a
$50 penalty imposed by the IRS.
If backup withholding applies, the Escrow Agent is required
to withhold 20% of payments of interest made to such
subscriber. Backup withholding is not an additional tax.
Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld.
If backup withholding results in an overpayment of taxes, a
refund may be obtained from the IRS. Certain taxpayers,
including all corporations, are not subject to these backup
withholding and reporting requirements.
If the shareholder has not been issued a TIN and has applied
or intends to apply for a TIN in the near future, then
"Applied For" should be written in the space provided for
the TIN on the Substitute Form W-9. In such case, if the
Escrow Agent is not provided with a TIN within 60 days then,
the Escrow Agent will withhold 20% of interest payments
thereafter made to each subscriber until a TIN is provided
to the Escrow Agent.
SUBSTITUTE FORM W-9
Under penalties of perjury, I certify that: (1) The number
shown on this form is my correct Taxpayer Identification
Number or I am waiting for a Taxpayer Identification Number
to be issued to me, and (2) I am not subject to backup
withholding because: (a) I am exempt from backup
withholding; or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup
withholding as a result of a failure to report all interest
or dividends; or (c) the IRS has notified me that I am no
longer subject to backup withholding.
You must cross out item (2) above if you have been notified
by the IRS that you are subject to backup withholding
because of under-reporting interest or dividends on your tax
return. However, if after being notified by the IRS that
you were subject to backup withholding you received another
notification from the IRS that you are no longer subject to
backup withholding, do not cross out item (2).
Each Subscriber Should Complete this Section.
- -------------------------------------------
Signature of Subscriber
- -------------------------------------------
Printed Name
- -------------------------------------------
Social Security or Employer Identification No.
- -------------------------------------------
Signature of Subscriber
- -------------------------------------------
Printed Name
- -------------------------------------------
Social Security or Employer Identification No.
TO BE COMPLETED BY THE COMPANY;
Accepted as of , , as to units.
HORIZON BANCORPORATION, INC.
By:
----------------------------------------
- -----------
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
WHERAS, the Consultant is desirous of providing
consulting services to the Corporation with regard to the
organization of the Bank and to serve as President and Chief
Executive Officer of the Bank after its charter has been
approved, which bank is to be owned by a Bank Holding
Company (the "Holding Company"), which will be organized to
own all of the stock of the Bank.
NOW, THEREFORE, in consideration of the mutual
covenants and promises contained herein, the parties hereto
agree as follows:
1. ENGAGEMENT: The Corporation agrees to engage the
Consultant and the Consultant agrees to provide consulting
services to the Corporation relating to the regulatory
process associated with the Corporation's application for
the Bank's charter and for permission to form the Bank
Holding Company, and the development of organizational and
business plans relating to the operation of the Bank and the
Holding Company.
2. TERM: The term of this Agreement shall commence on
15th, June, 1998, and shall continue until the earlier of
twelve (I 2) months from the date of commencement of this
Agreement or the date the Bank is no longer in the
organization period and has opened for business.
3. SERVICES: The Consultant shall exert his best
efforts and devote substantially all of this time and
attention to the organizational matters of the Bank and the
Holding Company.
4. COMPENSATION: As compensation for the Consultant's
services the Corporation shall pay the Consultant a fee as
follows:
a. $5,000.00 per month salary until the "Bank"
application is filed with the appropriate regulatory
authorities;
b. Thereafter, $6,000.00 per month salary until
the minimum amount of stock required to start the Bank is
sold;
c. Thereafter, $8,000.00 per month until the
"Bank is opened. The parties intended to then enter into a
more formal employment contract for the Consultant to be
hired as the Bank's president. The parties hereby agree to
negotiate the employment contract in good faith;
d. At opening of the "Bank, the Corporation will
pay a bonus of $16,000.00.
5. EXPENSES:
a. Expenses shall include the Consultants current
country club dues and various club dues as shall shown on
Exhibit A.
b. Insurance. The Consultant shall also be
entitled to a satisfactory health, dental, life and
disability policy paid by the Corporation until the
President and CEO contract is in place. The life insurance
policy minimum shall be for a $250,000 term life. This
policy may be part of a "key man" policy, if available.
c. Other Expenses. The Consultant shall also be
entitled to reimbursement for all reasonable expenses
incurred by him in the Performance of his duties upon
presentation of a voucher indicating the amount and the
business purposes.
6. TERMINATION: In the event of the Consultant's death
or in the event the Consultant is prevented from rendering
Services by reason of illness, incapacity or injury for a
period of sixty (60) consecutive days during the term of
this Agreement, or in the event the Consultant fails to
perform the services required hereunder, then and in such
event the Corporation may terminate this Agreement upon
written notice to the Consultant. If the Agreement is
terminated for other than cause, as cause is defined in an
Employment Agreement to be negotiated between the parties
within sixty (60) days of signing this agreement, and the
Consultant has commenced providing services, then the
Corporation shall continue to compensate the Consultant
under Section 4(a) above for a period of 3 months from the
date of notification. In the event Consultant voluntarily
terminates his services, then the post termination covenants
set forth in paragraph 7 of the Employment Agreement, as
hereinafter defined, shall be applicable to Consultant.
7. RATIFICATION OF EMPLOYMENT AGREEMENT: In the event
the Bank is granted its charter and the requisite amount of
capital has been raised to permit the Bank to open for
business, the shareholders of the Corporation agree to
ratify and approve, on behalf of the Bank, the Employment
Agreement The shareholders of the Corporation shall also
cause the Board of Directors of the Bank to ratify and
approve such Employment Agreement. Upon approval by the
Bank's Board of Directors of the Employment Agreement, the
Consultant agrees to enter into said Employment Agreement
and perform the duties enumerated therein as the president
and Chief Executive officer of the Bank. Each shareholder
of the Corporation represents to the Consultant that he will
vote for the approval of said Employment Agreement at the
initial Board of Directors meeting of the Bank, and that
they, as a group, will have sufficient votes to ratify said
Employment Agreement.
8. NOITCES: All notices, requests, demands and other
communications provided for by this Agreement shall be in
writing and shall be deemed to have been given at the time
when mailed at any general or branch United States Post
Office enclosed in a certified, Postage pre-paid envelope,
and addressed to the address of the respective Parties
stated below, or as such party may have fixed by notice:
To the Corporation:
Clarence R. Urban
2108 Whitfield Park Loop
Sarasota, FL 34243
To the Consultant:
Charles Conoley
410 68th Court Northwest
Bradenton, FL 34210
9. SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and benefit of and be binding upon the
Corporation and its successors. The Consultant may not
assign his right to payment not his obligations under this
Agreement.
10. GOVERNING LAW. This Agreement shall in all
respects be interpreted, construed and governed by and in
accordance with the laws of the State of Florida.
11. MISCELLANEOUS. This Agreement supersedes all
prior understandings and agreements between the parties, and
may not be amended orally, but only in writing signed by the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day
and year first above written.
"Corporation"
MANASOTA GROUP INC.
By: /S/ Shannon Glasgow By: /S/ Clarence R. Urban
--------------------- --------------------
Its Director Its Director
By: /S/ David Scherer
---------------------------
Its Director
By: /S/ Charles Conoley /S/ Charles Conoley
--------------------- -------------------
Its Director CHARLES CONOLEY
- -----------
EXHIBIT 6.3
- -----------
THIS AGREEMENT FOR SALE AND PURCHASE OF PROPERTY is
made this 30th day of Sept., 1998, by and between MANASOTA
GROUP, INC., a Florida corporation, or its assigns
("Purchaser"), having a mailing address at 2108 Whitfield
Park Loop, Sarasota, Florida 34243 and WDO VENTURE, a
Florida limited partnership ("Seller"), c/o Sam Reiber,
Esq., Linsky & Reiber, P.A. 601 E. Twiggs, Tampa, FL 33602.
1. AGREEMENT TO SELL; PURCHASE PRICE:
1.1 Agreement to Sell and Convey. Seller hereby agrees
to sell and convey to Purchaser and Purchaser hereby agrees
to purchase from Seller, subject to the terms and conditions
hereinafter set forth, a 1.04 acre or 45,360 square foot
outparcel site located on the SE quadrant of the
intersection of 53rd Avenue East and 9th Street East Manatee
County, Florida, and being more particularly described on
Exhibit "A" attached hereto and made a part hereof for all
purposes, together with the following:
(a) All and singular the rights, leases,
tenements, hereditaments and appurtenances pertaining
thereto, including any right, title and interest of Seller
in and to adjacent streets, road, alleys and rights-of-way;
(b) Ingress and egress easements providing full,
free and adequate access to and from public highways and
roads which are located contiguous to and abutting the
boundary of the Property, and to and from interior roadways
for traffic flowing into or out of the parking lot for the
Winn Dixie Marketplace lying east of the Property; and
(c) Subject to approval of Winn-Dixie, a cross
parking easement permitting customers of Winn-Dixie
Marketplace to park in parking spaces on the Property which
is the subject of this agreement; and permitting Purchaser's
customers to park in the parking lot for the Winn-Dixie
Marketplace lying east of the Property; and
(d) Drainage easement(s) to off site retention
areas located on the adjoining Winn-Dixie Marketplace
property; and
(e) Such other rights, interests and properties
as may be specified in this Agreement to be sold,
transferred, assigned, or conveyed by Seller to Purchaser.
The parcel of land described on Exhibit "A", and the
rights, interests, improvements, fixtures and other
properties described above, are collectively called the
"Property."
1.2 Purchase Price. The purchase price ("Purchase
Price") to be paid for the Property shall be FOUR HUNDRED
SEVEN THOUSAND FIVE HUNDRED AND no/100 DOLLARS
($407,500.00). The Purchase Price shall be paid by Purchaser
to Seller as follows:
$ 10,000.00 Earnest money deposit ("Deposit") to
be delivered to and held by Linsky & Reiber, P.A. at its
office in Tampa, Florida ("Escrow Agent'), simultaneously
with the delivery of this Agreement signed by Purchaser.
The Deposit shall be placed in an interest bearing account
with the interest credited to Purchaser for income tax
reporting purposes.
$ 40,000.00 Additional deposit upon site plan/use
approval.
$351,500.00 Cash in the form of a cashier's check,
attorney's trust account check, or wired
funds, all payable in U.S. funds at
Closing plus or minus prorations and
closing costs as set forth hereinafter.
$407,500.00 Total purchase price.
==========
2. PROVISIONS WITH RESPECT TO CLOSING.
2.1 Inspection of Property. Purchaser and its agents,
at Purchaser's sole cost and expense, shall have sixty (60)
days from the Effective Date of this Agreement ("Inspection
Period") to inspect, examine, test, evaluate, and enter upon
the Property, for the purposes of inspecting all
improvements situated thereon and conducting any and all
tests, inspections and examination, including but not
limited to, soil tests, engineering tests, environmental
audits, examining financial feasibility of any plans
contemplated for the Property, determining all, permit,
approval and governmental requirements, examining and
obtaining any title insurance commitments, policies or other
evidence of title to the Property and examining and
obtaining any surveys of the Property, all as Purchaser
deems necessary or appropriate to determine the desirability
of consummating the transaction contemplated herein. In the
event Purchaser determines that the Property is not suitable
for its purposes for any reason whatsoever, then the
Purchaser may give written notice of termination of this
Agreement to Seller at any time during the Inspection Period
and upon such termination, the Deposit held by the Escrow
Agent shall be promptly returned to Purchaser and neither
party shall have any further liability, right or obligation
hereunder. In the event Purchaser fails to give written
notice of termination of this Agreement to Seller on or
before the expiration of the Inspection Period, then
Purchaser shall be deemed to have waived its right to
terminate this Agreement pursuant to this section, but all
other terms, conditions, contingencies, rights and
obligations under this Agreement shall remain in full force
and effect. Seller agrees to provide Purchaser copies of
all environmental studies of the Property in Seller's
possession or commissioned by Seller, and any parcel
adjacent thereto, within fifteen (1 5) days from the
Effective Date.
2.2 Permit Contingency. Purchaser's obligations
hereunder are expressly conditioned upon the Purchaser, at
Purchaser's expense, applying for and obtaining all required
approvals from Manatee County, Florida, under county
ordinances and land use regulations, for the construction of
a full service banking facility with a one story building of
up to 7,000 square feet together and a drive through banking
facility with four traffic lanes (herein "the
Improvements"). Purchaser's obligations are further
conditioned upon obtaining such Comprehensive Land Use Plan
amendments as may be necessary to obtain building permits
for such project. Purchaser's obligations are further
conditioned upon obtaining all required permits (or
approvals from any Federal, state, county or other local
governmental authority with jurisdiction over the subject
property) for such project, including, without limitation,
all required permits from the U.S. Army Corps of Engineers,
State of Florida Department of Environmental Protection and
Southwest Florida Water Management District for the
construction of a full service banking facility on the
property. To implement the provisions hereof, Seller hereby
constitutes and appoints Purchaser as its agent and attorney-
in-fact for any and all such applications, hearings and
procedures pursuant to the provisions of this paragraph;
provided, that all expenses in connection with such
applications shall be at Purchaser's sole expense.
Purchaser agrees to promptly apply for and diligently pursue
all necessary approvals from Manatee County and all Federal,
State or other local governmental authorities with
jurisdiction over the subject property. If final government
approval of said applications has not been obtained by
January 15, 1999, then Purchaser may cancel this contract in
which event all deposits paid hereunder shall be refunded to
Purchaser provided further, however, that if, as of said
date, the final agency action has been scheduled, or the
final public hearing has been scheduled before the
governmental board or commission having final Approval
authority, then the terms of this condition shall be deemed
extended until said hearing date. The closing shall occur,
within 30 days following final approval. Seller agrees to
execute such authorizations or other documents as may be
required by governmental authorities in order to evidence
Seller's joinder in and consent to such applications. Also,
Seller and Purchaser agree that Jerry Zoller shall be
retained by Purchaser to provide engineering, land planning,
surveying and consulting services to Purchaser in connection
with the foregoing matters.
2.3 Closing Date. The consummation of the transaction
contemplated by this Agreement ("Closing") shall take place
no later than thirty (30) days following final approval for
all permits from all applicable governmental agencies for
construction of the Improvements. However, this transaction
shall close no later than March 24, 1999. The Closing shall
take place at the Purchaser's attorneys' offices in
Bradenton, Florida or at such other place mutually agreed to
by the Purchaser and Seller.
2.4 Seller's Obligation at Closing. At Closing,
Seller shall do the following:
(a) Execute, acknowledge, and deliver to Purchaser a
Statutory Warranty Deed conveying the Property to Purchaser
subject only to the Permitted Exceptions, which deed shall
be in form for recording. The legal description of the
Property contained in such deed shall be identical to the
legal description of the Property as contained in the
Survey, the Title Commitment and Exhibit "A" of this
Agreement.
(b) Deliver to Title Company evidence satisfactory to
it of Seller's authority to execute and deliver the
documents necessary or advisable to consummate the
transaction contemplated hereby.
(c) Deliver to Purchaser copies of all licenses,
permits, authorizations and approvals required by law and
issued by all governmental authorities having jurisdiction,
if any, and the original or a photocopy of each bill for
current real estate taxes for the two (2) years immediately
preceding Closing, together with proof of payment thereof
(if any of the same have been paid).
(d) Execute and deliver to Purchaser and Title Company
an Affidavit of No Liens satisfactory to Title Company so as
to cause Title Company to remove the mechanics' lien and
parties in possession standard exceptions from the Title
Commitment.
(e) Deliver to Purchaser a written assignment of all
warranties, guarantees and rights which the Seller may have
in connection with the Property.
(f) Deliver to Purchaser written evidence that access
to the Property is provided by a publicly dedicated and
accepted paved road appurtenant thereto.
(g) Deliver to Purchaser such other documents as may
be reasonably necessary t6 effectuate the provisions of this
Agreement including, but not limited to, any documents
required by Purchaser's Lender, Title Company or Escrow
Agent
2.5 Purchaser's Obligations at Closing. Subject to
the terms, conditions and provisions hereof, and
contemporaneously with the performance by Seller of his
obligations set forth in Section 2.3 above, Purchaser shall
deliver to Seller cash in the form and amount described in,
and in accordance with, Section 1.2.
2.6 Closing Costs.
(a) Seller shall pay the following costs and
expenses in connection with the Closing:
(i) All premiums and costs payable for the
Owner's Title Commitment and standard and extended coverage
Title Policy, including all available endorsements, issues
pursuant thereto; and
(ii) Costs of recording corrective
instruments, if any;
(iii) Seller's attorney fees.
(iv) All transfer taxes and charges and
documentary stamps, if any, which are required to be affixed
to the General Warranty Deed;
(b) Purchaser shall pay the following costs and
expenses in connection with the Closing:
(i) All recording costs of the Statutory
Warranty Deed and any other documents;
(ii) The cost for any and all professional
services for engineering, land planning, surveying and
consulting services to obtain governmental approvals for
Purchaser's intended use of the Property; and
(iii) Purchaser's attorney fees.
2.7 Proration of Taxes and Rents. Taxes, assessments,
rent interest, insurance and other expenses of the Property
shall be prorated through the day before closing. Cash at
closing shall be increased or decreased as may be required
by prorations to be made through day prior to closing or
occupancy, if occupancy occurs before 'closing. Taxes shall
be prorated based on the current year's tax with due
allowance made for maximum allowable discount, homestead and
other exemptions. If closing occurs at a date when the
current year's millage is not fixed and cur-rent year's
assessment is available, taxes will be prorated based upon
such assessment and prior year's millage. If current year's
assessment is not available, then taxes will be prorated on
prior year's tax proration based on an estimate shall, at
request of either party, be readjusted upon receipt of tax
bill on condition that a statement to that effect is signed
at closing.
3. CONDITIONS TO CLOSING.
3.1 Conditions to Purchaser's Obligations. In
addition to the provisions set forth in Sections 2.1 and
2.2, the obligations of Purchaser hereunder to consummate
this transaction and the Closing contemplated by this
Agreement are subject to the satisfaction, as of the
Closing, of each of the following conditions ("Closing
Conditions") (any of which may be waived in whole or in part
in writing only by Purchaser, in its sole discretion, at or
prior to the Closing). In the event any Closing Condition
is not satisfied or waived by Purchaser, then Purchaser may
give written notice of termination of this Agreement to
Seller and upon such notice, the Agreement shall be
terminated and the Deposits held by Escrow Agent shall be
promptly returned to Purchaser and neither party shall have
any further liability right or obligation hereunder.
(a) Correctness of Representations and
Warranties. The representations and warranties of Seller
set forth herein shall be true on and as of the date of
Closing with the same force and effect as if such
representations and warranties had been made on and as of
the date of Closing.
(b) Compliance by Seller. Seller shall have
performed, observed and complied with all of the covenants,
agreements and conditions required by this Agreement to be
performed, observed and complied with by Seller prior to or
as of the Closing.
(c) Utilities. Purchaser shall have made
arrangements satisfactory to it, in its sole discretion, for
the provision of sanitary sewer, water, electricity, and all
other utilities necessary for the Improvements to the
Property. All such utilities must be adequate and usable
for the Improvements.
(d) Cross-easement Requirement. This contract is
strictly contingent upon Purchaser securing an agreement for
cross parking with the fee simple owner of the shopping
center plaza lying adjacent to the Property, and the
procurement of any and all lien subordinations and tenant
consents to effectuate a free and clear cross parking
agreement. The nature and scope of the cross parking
agreement must also include rights of ingress and egress
across the shopping center parcel lying adjacent to the
Property, and further provide for drainage across the
shopping center parcel, to the extent necessary, to comply
with applicable storm water and surface water management
permitting arrangements from government authorities. The
cross parking and cross access and drainage easements must
be insured under the title policy to be provided pursuant
this agreement.
(e) Due Diligence Documents. Seller shall within
fifteen (15) days from the Effective Date finish to
Purchaser copies of all engineering plans, surveys
topographic surveys, soil tests or reports, finished grade
tests or reports, complete copy of the zoning approval,
including the approved site plan, copies of all permits
obtained from any governmental agency including Manatee
County, Florida Department of Transportation, Florida
Department of Environmental Protection, the Southwest
Florida Water Management District and similar agencies, in
Seller's possession or control.
4. SURVEY AND TITLE COMMITMENT; PERMITTED EXCEPTIONS.
4.1 Preliminary Title Report. Within twenty (20) days
after the Effective Date hereof, Seller at Seller's sole
cost and expense, shall cause a title insurance company
acceptable to the Purchaser ("Title Company") to issue and
deliver to Purchaser an A.L.T.A. Form B title commitment
("Title Commitment'), accompanied by one copy of all
documents affecting the Property, and which constitute
exceptions to the Title Commitment. Purchaser shall give
Seller written notice on or before the expiration of the
later of (i) thirty (30) days after receipt of the Title
Commitment or (ii) thirty (30) days after receipt of the
survey provided for below, that the condition of title as
set forth in such Title Commitment and Survey is or is not
satisfactory, in Purchaser's sole discretion. In the event
that the condition of title is not acceptable, Purchaser
shall state which exceptions to the Title Commitment are
acceptable and Seller shall undertake to eliminate the
remaining exceptions as set forth below, provided, however,
that at Closing, existing mortgages shall be satisfied or
the liens thereof partially released as the case may be, as
to the Property. Seller shall, at its sole cost and
expense, promptly undertake and use its best efforts to
eliminate or modify all unacceptable matters to the
reasonable satisfaction of Purchaser. In the event Seller
is unable with the exercise of due diligence to satisfy said
obligations within forty-five (45) days after said notice,
Purchaser may, at its option: (i) accept title subject to
the objections raised by Purchaser, without an adjustment in
the Purchase Price, in which event said objections shall be
deemed to be waived for all purposes, or (ii) rescind this
Agreement, whereupon the Deposit described herein shall
thereupon be returned to Purchaser and this Agreement shall
be of no further force and effect. At the Closing, the
Title Policy and all available endorsements shall be issued
by the Title Company at Seller's sole cost and expense,
shall be in accordance with the Title Commitment, shall be
acceptable to Purchaser, and shall pertain only to the
Property.
4.2 Permitted Exceptions. The Property shall be
conveyed to Purchaser subject to no liens, charges,
encumbrances, exceptions or reservations of any kind or
character except for those acceptable to Purchaser under
Section 4.1 and except for those identified on Exhibit "B"
attached hereto and made a part hereof ("Permitted
Exceptions").
4.3 Current Survey. Within forty five (45) days from
the Effective Date hereof, Purchaser, at Purchaser's sole
cost and expense, shall secure a survey (the "Survey") of
the Property prepared by a land surveyor acceptable to
Purchaser and duly licensed in the state in which the
Property is located. The Survey as to the Property shall:
(a) Set forth an accurate metes and bounds
description, if applicable; and
(b) Locate all existing easements and rights-of-
way (setting forth the book and page number of the recorded
instruments creating the same), alleys, streets, and roads
on or adjacent to the Property; and
(c) Show any encroachments; and
(d) Show all existing improvements (such as
buildings, power lines; fences, etc); and
(e) Set forth the total square footage of the
Property; and
(f) Be certified to Purchaser, the Title Company
and Purchaser's lender, if any, and shall indicate that such
Survey was prepared in accordance with the minimum technical
requirements and standards as promulgated by the state in
which the Property is located; and
(g) Show all dedicated public streets providing
access and whether such access is paved to the Property
line; and
(h) Show the location of any easements necessary
for the furnishing of off-site improvements.
(i) List and show all exceptions to the Title
Policy.
Purchaser hereby agrees, at Purchaser's own cost and
expense, to cause such additional surveying work to be
timely contemplated as may be necessary or required by the
Purchaser or the Title Company for its issuance of the Title
Policy. In the event the Survey, or the recertification
thereof, shows any encroachments of any improvements upon,
from, or onto the Property, or on or between any building
setback line, a property line, or any easement, except those
acceptable to Purchaser, in Purchaser's sole discretion,
said encroachment shall be treated in the same manner as a
title defect under the procedure set forth above.
5. AFFIRMATIVE COVENANTS OF SELLER.
Seller hereby affirmatively covenants and agrees to the
following:
5.1 Acts Affecting Property. From and after the
Effective Date hereof, Seller, unless otherwise agreed to in
writing by Purchaser, will refrain from (a) making any
change or improvements upon or about the Property; ----- (c)
committing any waste or nuisance upon the Property; and
Seller will maintain and keep the Property in neat condition
and will observe all laws, ordinances, regulations and
restrictions affecting the Property and its use, and will
pay all taxes on the Property, as they become due, except
that after the Closing, Purchaser shall be responsible for
the taxes on the Property acquired at Closing.
5.2 Notice of Change in Laws. Seller will advise
Purchaser promptly of any change in any applicable laws,
regulations, rulings or orders, of which Seller obtains
knowledge, which might affect the value or use of the
Property by Purchaser.
5.3 Soil Tests. Purchaser and its agent and
representatives shall be entitled to enter upon the Property
for inspection, soil tests, examination and land-use
planning prior to the Closing. (In this regard, no such
examination will be deemed to constitute a waiver or
relinquishment on the part of Purchaser or its rights to
rely on the covenants, representations, warranties or
agreements made by Seller.) Purchaser hereby holds Seller
harmless from any damages or liabilities arising from
injuries caused by Purchaser, its agents or representatives
in pursuing the activities permitted under this Section.
Seller further agrees that in the event soil testing or the
Phase I Environmental Property Assessment (see Section 6.13,
below) indicate that toxic substances and/or hazardous
materials (see Section 6.13, below) exist or are likely to
exist, on the Property, then either: (1) Seller, at his sole
cost, shall remove, remedy, and clean-up any and all such
toxic substances and/or hazardous materials, and test and
verify same, so that the Property and the parties are in
total compliance with all Environmental Laws to Purchaser's
satisfaction; or (2) Purchaser may, at its election and sole
option, terminate this Agreement whereupon Escrow Agent
shall, upon notice of Purchaser, return the Deposit to
Purchaser, and the parties shall thereafter have no further
rights or obligations hereunder; or (3) Seller may terminate
this Agreement by giving written notice to Purchaser and
Escrow Agent and by paying directly to Purchaser one-half
(1/2) of the verified costs of Purchaser's boundary survey,
appraisal and environmental/soil testing and analysis, and
Purchaser shall, upon such notice, be refunded the Deposit,
and the parties thereafter shall have hereunder no further
rights or obligations. Cost cap to Seller is $2500.00.
5.4 Payment of Special Assessments. Seller shall pay
in full all special assessments against the Property to the
date of Closing, whether any or all installments of such
assessments are mature or unmatured.
5.5 Further Assurances. In addition to the
obligations required to be performed hereunder by Seller at
the Closing, Seller agrees to perform such other acts, and
to execute, acknowledge, and/or deliver subsequent to the
Closing such other instruments, documents and other
materials as Purchaser may reasonably request in order' to
effectuate the consummation of the transaction contemplated
herein and to vest title to the Property in Purchaser.
5.6 Licenses, Permits, Leases and Other Information.
Upon the Effective Date hereof, Seller shall immediately
provide Purchaser with a copy of all feasibility and
marketing studies, renderings, drawings, prior surveys,
prior title commitments, prior title policies, prior
environmental reports and audits, soil tests, zoning
letters, engineering plans and specifications, permits, and
all leases, rent rolls, management agreements, service
agreements and employment contracts, if applicable,
pertaining to the Property (with all amendments thereto),
together with all licenses, permits, approvals, orders and
authorizations, and letters and applications relating
thereto, issued by or obtained from any governmental,
utility, or regulatory agency or entity which in any manner
relate to the Property.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller, to the best of its knowledge, hereby makes the
following covenants, representations and warranties to
Purchaser, all of which shall survive the Closing:
6.1 Marketable Title. Seller has good, marketable and
insurable title to the Property, free and clear of all
mortgages, liens, encumbrances, leases, tenancies, security
interests, covenants, conditions, restrictions, rights-of-
way, easements, judgments and other matters affecting title
except the Permitted Exceptions.
6.2 Zoning. The Property is presently zoned for
shopping center use and permits Purchaser to operate the
Improvements as a legal and conforming use and structure on
the Property.
6.3 Adverse Information. Seller has no information or
knowledge of any change contemplated in any applicable laws,
ordinances, or regulations, or any judicial or
administrative action, or any action by -adjacent
landowners, or natural or artificial conditions upon the
Property, which would prevent, limit, impede, or render more
costly Purchaser's contemplated use of the Property.
6.4 Compliance with Laws. Seller has complied with all
applicable laws, ordinances, regulations, statutes, rules
and restrictions pertaining to and affecting the Property.
Performance of this Agreement will not result in any breach
of, or constitute any default under, or result in the
imposition of, any lien or encumbrance upon the Property
under any agreement or other instrument to which Seller is a
party or by which Seller of the Property might be bound.
6.5 Pending Litigation. There are no pending or
threatened legal actions, suits or other legal or
administrative proceedings, including condemnation or
eminent domain cases, and bankruptcy, receivership or
insolvency proceedings, affecting the Property or any
portion thereof, nor has Seller any knowledge that any such
action or proceedings are presently contemplated.
6.6 No Special Assessments. No portion of the
Property is affected by any special assessments, recorded or
unrecorded, whether or not constituting a lien thereon.
6.7 Access to Highways and Roads. The Property has
full, free and adequate access to and from public highways
and roads which are located contiguous to and abutting the
boundary of the Property, and Seller has no knowledge of any
fact or condition which would result in the termination of
such access.
6.8 Commitments to Governmental Authorities. No
commitments have been made to any governmental authority,
utility company, school board, church or other religious
body, or any homeowners association, or to any other
organization, group, or individual, relating to the Property
which would impose an obligation upon Purchaser or its
successors or assigns to make any contribution or
dedications of money or land or to construct, install, or
maintain any improvements of a public or private nature on
or off the Property; and no governmental authority has
imposed any requirement that any developer of the Property
pay directly or indirectly and special fees or contributions
or incur any expenses or obligations in connection with any
development of the Property or any part thereof. The
provisions of this Section shall not apply to any regular or
nondiscriminatory local real estate taxes assessed against
the Property.
6.9 Seller's Residence. Seller is a United States
resident for purposes of U.S. Income Taxation (as that term
is defined in the Internal Revenue Code and Income Tax
Regulations) and that no withholding of sale proceeds is
required with respect to Seller's interest in the Property
under Section 1445(a) of the Internal Revenue Code, as
amended.
6.10 Flooding.. The Property has not suffered any
damage nor required any extraordinary repairs due to
flooding or inadequate drainage, and has sufficient fill to
permit the construction of the improvements listed in
paragraph 2.2 above.
6.11 Wetlands. No portion of the Property is wetlands
within the jurisdiction of any agency of the state, region,
local government, or district in which the Property is
located.
6.12 Utilities. Public sanitary and storm sewers,
public water facilities, electrical facilities, telephone
service lines, cable T.V. service lines, and easements for
same (collectively the "Utilities"), are to the perimeter
boundary of, and duly connected to the Property and
easements necessary for the use of the storm water drainage
master retention system for the Property have been obtained.
6.13 Environmental Matters. To the best of Seller's
knowledge, Seller further represents and warrants to
Purchaser the following:
(a) The Real Property is in full compliance ,with
all federal, state and local environmental laws and
regulations, including but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Water
Pollution and Control Act, the Federal Clean Water Act, the
National Environmental Policy Act, the Resource Conservation
and Recovery Act of 1976 ("RCRA"), as amended by the
Hazardous and Solid Waste Amendments of 1984, the Hazardous
Material Transportation Act, the Federal Clear Air Act, and
any and all state, regional and local laws, statutes,
ordinances, rules and regulations relating to Hazardous
Materials or regulation of Hazardous Materials, including
but not limited to, Chapters 376 ("Pollutant Discharge
Prevention and Removal"), 377 ("Energy Resources") and 403
("Environmental Control"), of Florida Statutes, and rules
related thereto including Chapters 17, 27 and 40 of the
Florida Administrative Code (hereinafter. together with any
amendments thereto "Environmental Laws");
(b) There are no hazardous materials, substances,
wastes or other environmental regulated substances
(including, without limitation, asbestos, polychlorinated
biphenyls ("PCB's"), petroleum products, toxic or
radioactive materials, ammonia, chlorine, pesticides, bulk
chemicals, substances listed in the United States Department
of Transportation Table or by the Environmental Protection
Agency (or any successor agency) as hazardous substances, or
which are classified as hazardous or toxic under local,
state or federal laws, rules or regulations ("Hazardous
Materials") located on, in or under the Property or used in
connection therewith;
(c) The Property is not on any Hazardous
Materials clean-up list or any governmental authority;
(d) Seller has not received a summons, citation,
directive, letter or other communication, written or oral,
from any governmental authority, including, but not limited
to any agency or department of the state, region, or local
government in which the Real Property is located, or the
Untied States government, nor has any action ever been
commenced or threatened by any governmental authority
concerning any intentional or unintentional action or
omission on Seller's part which resulted in the releasing,
spilling, leaking, pumping, pouring, emitting, emptying or
dumping of Hazardous Materials into or onto the Real
Property;
(e) The Property has never been used by previous
owners or operators or by Seller to generate, manufacture,
refine, transport, treat, store, handle or dispose of
Hazardous Materials.
6.14 Changes. In the event any changes occur as to
any information, documents or exhibits referred to in the
subparagraphs of Sections 5 and 6 hereof, or in any other
part of this Agreement of which Seller has knowledge, Seller
will immediately), disclose same to Purchaser when first
available to Seller; and in the event of any change which
may be deemed by Purchaser to be materially adverse,
Purchaser may, at its election and its sole discretion,
terminate this Agreement and obtain a refund of the Deposit
made hereunder.
6.15 DELETED
6.16 Indemnification. Seller agrees to indemnify and
hold Purchaser harmless, and its officers, directors.
partners, employees and agents. from and against any
liability, claim, loss, dama2e or expense. Including
reasonable attorney's fees. whether incurred before trial,
at trial or on appeal, asserted against or suffered by
Purchaser resulting from any of the following if any of the
following commence, occur or exist within one (1) years of
the Closing Date:
(a) any breach by Seller of this Agreement; or
(b) the inaccuracy or breach of any of the
representations, warranties or covenants made by Seller
herein including, without limitation, those made in Section
6.
7. RESERVED.
8. PROVISIONS WITH RESPECT TO FAILURE OF TITLE, DEFAULT AND
SECURITY DEPOSIT.
8.1 Failure of Title. If Seller shall be unable to
convey title to the Property or any portion thereof on the
Closing Date in accordance with the provisions of this
Agreement (i) Seller shall, on or prior to the Closing Date,
give notice of such inability (and the nature thereof) to
Purchaser, and (ii) Purchaser may either accept such title
as Seller can convey, without abatement of the Purchase
Price, or terminate this Agreement, in which event the
Deposit made hereunder shall be forthwith returned to
Purchaser.
8.2 Default by Seller. In the event that Seller shall
be obligated but fail to consummate the transaction
contemplated herein for any reason, or in any way breach any
obligation, covenant, warranty, representation or other
provision of this Agreement or its exhibits, except
Purchaser's default, Seller shall be deemed in default under
this Agreement and Seller agrees that the Deposit shall be
returned immediately to Purchaser on demand and Purchaser
shall not thereby waive any right or remedy it may have
because of such default, including the right to specific
performance. No delay or omission in the exercise of any
right or remedy accruing to Purchaser upon any breach by
Seller under this Agreement shall impair such right or
remedy or be construed as a waiver of any such breach
theretofore or thereafter occurring. The waiver by
Purchaser of any condition or of. any subsequent breach of
the same or any other term, covenant or condition herein
contained shall not be deemed to be a waiver or any other
condition or of any subsequent breach of the same or any
other term, covenant, or condition herein contained. All
rights, powers, options or remedies afforded to Purchaser
either hereunder or by law shall be cumulative and not
alternative and the exercise of one right, power, option or
remedy shall not bar other rights, powers, options or
remedies allowed herein or by law.
8.3 Default by Purchaser. In the event Purchaser
shall be obligated but fail to consummate the transaction
contemplated herein for any reason, except default by Seller
or failure to satisfy any of the Closing Conditions to
Purchaser's obligations under Section 3.1 or termination by
Purchaser during the Inspection Period, as set forth herein,
Purchaser shall be deemed in default under this Agreement
and Seller and Purchaser agree that Seller's sole right and
exclusive remedy against Purchaser shall be that the Deposit
paid to Escrow Agent to date, if any, shall be paid by
Escrow Agent to Seller on written demand by Seller,
whereupon such Deposit shall be retained by Seller (a) as
consideration for the execution of this Agreement; (b) as
agreed on liquidated damages sustained by Seller because of
such default by Purchaser (the parties hereto agreeing that
the retention of such funds shall not be deemed a penalty,
and recognizing the impossibility of precisely ascertaining
the amount of damages to the Seller because of such default
and hereby declaring and agreeing that the sum so retained
is and represents the reasonable damages of Seller); (c) in
full settlement of any claims of damages and in lieu of
specific performance by Seller against Purchaser; and (d) in
consideration for the fall and absolute release of Purchaser
by Seller of any and all further obligations under this
Agreement. The remedy of Seller for default by Purchaser
hereunder shall be limited solely to the retention of the
then-paid Deposit as described above. In the event
Purchaser defaults hereunder the Purchaser shall forthwith
on demand by Seller return to Seller all title papers and
other documents relating to the Property, including
Purchaser's copy of this Agreement and thereupon, all rights
of the parties hereto and hereunder shall end.
8.4 Attorney's Fees, etc. Should either party employ
an attorney or attorneys to enforce any of the provisions
hereof, or to protect its interest in any matter arising
under this Agreement or to recover damages for the breach of
this Agreement, the party prevailing shall be entitled to
recover from the other party all reasonable costs, charges
and expenses, including attorney's fees, expended or
incurred in connection therewith, including all appeals.
9. OTHER CONTRACTUAL PROVISIONS.
9.1 Brokerage Commissions. The licensee(s) and
brokerage(s) named as follows are collectively referred to
as "Broker," Seller and Purchaser acknowledge that the
brokerage(s) named as follows are the procuring cause of
this transaction. Seller and Purchaser direct closing agent
to disburse brokerage fees at closing as follows: 3% of the
gross sales price to PRIMERICA GROUP ONE, INC.; and 3% of
the gross sales price to USA REALESTATE, INC.
9.2 Assignability. Purchaser shall have the absolute
right and authority to assign this Agreement and all of its
rights hereunder to any person, firm, corporation or other
entity, subject to Seller's consent only if the assignment
is to an entity not owned controlled by Purchaser, such
consent not be unreasonably withheld, and any such assignee
shall be entitled to all of the rights and powers of
Purchaser hereunder. Upon any such assignment, such
assignee shall succeed to all of the rights and obligations
of the assignor hereof and shall, for all purposes hereof,
be substituted as and be deemed the Purchaser. Upon any
such assignment, Seller agrees that Purchaser shall be
released and relieved of any liability hereunder.
9.3 Risk of Loss by Condemnation.
(a) All risk of condemnation prior to the Closing
shall be on Seller. Immediately upon obtaining knowledge of
the institution of any proceedings for the condemnation of
the Property, or any portion thereof (including negotiations
in lieu of condemnation), Seller will notify Purchaser of
the pendency of such proceedings. Purchaser may, at its
sole option, participate in any such negotiations and
proceedings, and Seller shall from time to time deliver to
Purchaser all instruments requested by it to permit such
participation. Seller shall, at Seller's expense,
diligently prosecute any such proceeding, and shall consult
with Purchaser, its attorneys and experts and cooperate with
them in any defense of any such proceedings.
(b) If, after the Effective Date hereof and prior
to the Closing, all or a part of the Property is subjected
to a bona fide threat of condemnation by a body having the
power of eminent domain or is taken by eminent domain or
condemnation (or sale in lieu thereof), Purchaser may, be
written notice to Seller, elect to cancel this Agreement
prior to the Closing hereunder, in which event both parties
shall be relieved and released of and from any further
liability hereunder, and the Deposit made by Purchaser
hereunder shall forthwith be returned to Purchaser, and
thereupon this Agreement shall become null and void and be
considered canceled. If no such election is made, this
Agreement shall remain in full force and effect and the
purchase contemplated herein, less any interest taken by
eminent domain or condemnation, shall be effected with no
further adjustment, and, upon Closing, Seller shall assign,
transfer, and set over to Purchaser all of the right, title
and interest of Seller in and to any awards that have been
or that may thereafter be made for such taking.
9.4 Mandatory Radon Disclosure. Florida Statutes,
Section 404.056(6) requires the following language on at
least one document executed prior to or simultaneously with
this contract: "Radon is a naturally occurring radioactive
gas that, when it is accumulated in a building in a
sufficient quantities, may present health risks to persons
who are exposed to it over time. Levels of radon that
exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county
public health unit."
9.5 Notices. Any notice to be given or to be served
upon any party hereto, in connection with this Agreement
must be in writing, and may be given by certified mail,
return receipt requested, with postage prepaid, and shall be
deemed to have been given and received when a certified
letter containing such notice, properly addressed, with
postage prepaid, is deposited in the United States Mail;
and, if given otherwise than by certified mail, it shall be
deemed to have been given when delivered to and received by
the party to whom it is addressed. Such notices shall be
given to the parties hereto at the following addresses:
FOR PURCHASER FOR SELLER
- ------------- ----------
MANASOTA GROUP, INC WDO VENTURE
2108 WHITFIELD PARK LOOP 9261 LAZY LANE
SARASOTA, FLORIDA 34243 TAMPA, FLA. 33614
ATTN: RICHARD L.
TEADINSKI
WITH COPY TO: WITH COPY TO:
JOHN V. QURNLAN, ESQ. SAM REIBER, ESQ.
P.O. BOX 551 601 E. TWIGGS
BRADENTON, FL 34206 TAMPA, FL 33602
Any party hereto may, at any time by giving five (5)
days' written notice to the other party hereto, designate
any other address in substitution of the foregoing address
to which such notices hereunder shall be sent.
9.6 Entire Agreement; Modification. This Agreement
embodies and constitutes the entire understanding between
the parties with respect to the transaction contemplated
herein. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or
written, are merged into this Agreement. Neither this
Agreement nor any provision hereof may be waived, modified,
amended, discharged, or terminated except by an instrument
in writing signed by the party against which the enforcement
of such waiver, modification, amendment, discharge or
termination is sought, and then only to the extent set forth
in such instrument.
9.7 Applicable Law and Venue. This Agreement shall be
governed by, and construed in accordance with the laws of
the state in which the Property is located. Each party
hereto agrees to submit to the personal jurisdiction and
venue of the state and federal courts located closest in
distance to the Property, for a resolution of all disputes
arising in connection with the terms and provisions of this
Agreement.
9.8 Headings. Descriptive headings are for
convenience only and shall not control or affect the meaning
or construction of any provision of this Agreement.
9.9 Binding Effect. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto
and their heirs, personal representatives, successors and
assigns.
9.10 Counterparts. This Agreement may be executed in
several counterparts, each constituting a duplicate
original, but all such counterparts constituting one and the
same Agreement.
9.11 Time. Time is of the essence of this Agreement.
9.12 Interpretation. Whenever the context hereof
shall so require, the singular shall include the plural, the
male gender shall include the female gender and the neuter,
and vice versa. This Agreement has been negotiated at arm's
length and between persons sophisticated and knowledgeable
in business and real estate matters. Accordingly, any rule
of law or legal decision that would require interpretation
of this Agreement against the party that has drafted it is
not applicable and is waived. The provisions of this
Agreement shall be interpreted in a reasonable manner to
effect the purposes of the parties and this Agreement.
9.13 Severability. In case any one or more of the
provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein.
9.14 Escrow Agent.
(1) Escrow Agent shall rely upon and shall be
protected in acting or refraining from acting upon any oral
notice, instruction or request furnished hereunder and
believed by it to be genuine.
(2) Escrow Agent undertakes to perform only such
duties as are expressly set forth herein and shall not be
bound in any way by any other agreement to the parties
hereto.
(3) The parties hereto agree that Escrow Agent
shall not be liable to any of them for any matter or other
thing arising out of the performance by Escrow Agent of its
obligations hereunder except for acts or omissions resulting
from Escrow Agent's gross negligence or willful misfeasance.
(4) In the event Escrow Agent shall receive
contrary instructions hereunder, or there shall be any
dispute between the parties hereto as to the satisfaction of
the conditions or there shall be uncertainty as to the
meaning or applicability of any notice or provision hereof,
then Escrow Agent shall, at its option, either retain the
funds placed in escrow hereunder pending resolution of such
dispute or clarification or deposit the sale funds in the
appropriate Court and upon making such deposit, Escrow Agent
shall thereupon be released from all further obligations
hereunder.
(5) The parties hereto jointly and severally
agree to indemnify and hold Escrow Agent harmless from and
against any and all costs, claims or damages against,
arising out of or in connection with this Agreement or
Escrow Agent's actions or failure to act hereunder,
including without limitation the costs and expenses
(including reasonable attorneys fees) of defending itself
against the claims of liability hereunder excepting,
however, all costs, claims or damages arising out of gross
negligence or willful misfeasance by Escrow Agent.
(6) Seller and Purchaser acknowledge and agree
that the Escrow Agent is the law firm representing the
Seller in the subject transaction and in other matters from
time to time and further agree that such law firm may
continue or undertake such representations on behalf of such
party in this transaction or in any other matters
whatsoever, including but not limited to, any litigation
between the parties relating to this Agreement or this
transaction.
9.15 Execution Date. This Agreement shall be of no
force and effect unless by Seller and Purchaser on or before
September 30, 1998.
IN WITNESS VAMREOF, the parties hereto have executed
this Agreement as of the day and year first above, written;
provided, however, that for the purpose of determining "the
Effective Date" as used in this Agreement, such date shall
be the last date any of the parties hereto executes this
Agreement.
WITNESSES AS TO PURCHASER: PURCHASER:
MANASOTA GROUP, INC.
/S/ illegible By: /S/ Charles S. Conoley
- ----------------------- -------------------------
Charles S. Conoley,
President
Taxpayer ID No.
------------
/S/ illegible Date of Execution: 9/30/98
- -----------------------
WITNESSES AS TO SELLER: SELLER:
WDO VENTURE, a
Florida limited
Partnership by
Primerica Developments,
Inc. a Florida
Corporation, as its
General Partner
/S/ Sam Reiber By:
- -------------------------- ----------------------
----------------------
Taxpayer ID No.
-------------
/S/ Brenda L. Burgess DATE OF EXECUTION: 9/29/98
- ----------------------
Attachment - Plat of property with following legal
description:
PARCEL A (Outparcel)
AS A POINT OF REFERENCE COMMENCE AT THE NORTHEAST CORNER OF
THE EAST 1/2 OF THE NORTHWEST 1/4 OF THE NORTHWEST 1/4 OF
THE NORTHEAST 1/4 OF SECTION 13, TOWNSHIP 35 SOUTH, RANGE 17
EAST, MANATEE COUNTY, FLORIDA; THENCE RUN ALONG THE NORTH
BOUNDARY OF SAID NORTHEAST 1/4 OF SAID SECTION 13, NORTH 89
deg. 26' 35" WEST, A DISTANCE OF 73.00 FEET TO THE
INTERSECTION OF THE WESTERLY BOUNDARY OF HEATHERWOOD
CONDOMINIUMS, PHASE 1, AS RECORDED IN CONDOMINIUM PLAT BOOK
17, PAGE 15 OF THE PUBLIC RECORDS OF MANATEE COUNTY,
FLORIDA; THENCE SOUTH 00 deg.20' 48" WEST ALONG THE SAID
BOUNDARY, A DISTANCE OF 40.88 FEET TO THE SOUTHERLY RIGHT OR
WAY LINE OF 53RD AVENUE EAST AND A POINT ON A CURVE; THENCE
ALONG THE ARC OF SAID CURVE BEING THE SOUTHERLY RIGHT OF WAY
LINE OF 53RD AVENUE, CONCAVE TO THE NORTH HAVING A RADIUS OF
24773.99 FEET, SUBTENDED BY A CHORD AND CHORD BEARING OF
399.72 FEET, NORTH 89 deg. 54' 21" WEST, A DISTANCE OF
399.72 FEET TO THE POINT OF BEGINNING; THENCE DEPARTING SAID
SOUTHERLY RIGHT OR WAY, SOUTH 00 deg. 09' 45" WEST, A
DISTANCE OF 300.78 FEET; THENCE NORTH 98 deg. 48' 56" WEST,
A DISTANCE OF 152.98 FEET TO THE EASTERLY RIGHT OF WAY LINE
OF 9TH STREET EAST, THENCE ALONG SAID RIGHT OR WAY, SAID
LINE BEING 40.00 FEET EAST OF AND PARALLEL TO THE WEST
BOUNDARY OF THE NORTHEAST 1/4 OF SAID SECTION 13; THENCE
NORTH 00 deg. 11' 04" EAST, A DISTANCE OF 70.88 FEET TO THE
SOUTH BOUNDARY OF 53RD AVENUE RIGHT OF WAY AS RECORDED IN
OFFICIAL RECORD BOOK 1176, PAGE 1912; THENCE SOUTH 89 deg.
24' 33" EAST, A DISTANCE OF 2.01 FEET; THENCE NORTH 00 deg.
09' 45" EAST ALONG SAID RIGHT OF WAY, A DISTANCE OF 209.00
FEET; THENCE NORTH 45 deg. 30' 59" EAST, A DISTANCE OF 31.41
FEET TO THE CUSP OF A CURVE,SAID CURVE BEING THE SOUTHERLY
RIGHT OF WAY LINE OF 53RD AVENUE EAST, SAID RIGHT OF WAY
LINE BEING 42.00 FEET SOUTH OF AND PARALLEL TO THE CENTER
LINE OF SAID 53RD AVENUE EAST AS SHOWN ON THE FLORIDA
DEPARTMENT OF TRANSPORTATION RIGHT-OF-WAY MAPS OF THE 53RD
AVENUE EXTENSION; THENCE ALONG THE ARC OF SAID CURVE CONCAVE
TO THE NORTH A DISTANCE OF 128.60 FEET, HAVING A RADIUS OF
24,773.99 FEET, A CENTRAL ANGLE 00 deg. 17' 51", SUBTENDED
BY A CHORD OF 128.60 AND A CHORD BEARING OF SOUTH 89 deg.
17' 42" EAST TO THE POINT OF BEGINNING. SUBJECT TO
ADDITIONAL RIGHT OR WAY FOR 9TH STREET EST ON THE WEST SIDE
THEREOF AND FOR 53RD AVENUE EAST ON THE NORTH SIDE THEREOF.
EXHIBIT "A"
-----------
Property Legal Description
EXHIBIT "B"
-----------
Permitted Exceptions
- -----------
EXHIBIT 6.4
- -----------
Richard Bennett
2823 US Hwy 301 N.
Suite 1
Ellenton, FL. 34222
941 722-6678
By this indenture of lease, dated October 8, 1998, Richard
C. Bennett, herein called Lessor, leases to Manasota Group,
Inc., herein called Lessee, the premises shown on the
attached plan, Exhibit A, for use as offices, for a term of
one (1) year(s), commencing on October 8, 1998 and expiring
on October 7, 1999, at an annual rental rate of $5,400.00,
payable in monthly installments of $450.00 plus tax.
1 Payments will be due and payable to Richard Bennett at
2823 U S Hwy. 301 North, Suite One, Ellenton, Fl. 34222.
2) Payment will be $1,413.00 upon execution of this lease,
which shall constitute the first and last month's rent, tax,
plus $450.00 Security Deposit. Additional monthly payments
of $450.00 plus tax are due on the first day of each month
thereafter. Any payment not received on or before the 10th
day of the month in which it is due will be charged a 5%
late fee. Any Florida State sales tax or federal taxes are
the responsibility of the Lessee.
3) So long as Lessee performs its obligations, Lessor
covenants to Lessee its quiet and peaceful possessions of
the leased space and the right to use the same free from
interference from other tenants in the same building or
center.
4) Lessee agrees as follows: (a) to pay rent as due and to
deliver possession of the premises to the Lessor upon
termination of this lease in the same condition as received,
ordinary wear and tear expected: (b) to use the premises in
a quiet and orderly fashion without disturbance to other
tenants in the building, and not to suffer or permit any
violations of laws or ordinances therein: (c) assign or
sublet without prior written consent of lessor, which lessor
agrees will not be unreasonably withheld in the case of a
proper assignee with good references.
5) Lessor may terminate this lease and enter and take
possession of the premises from the Lessee, all without
waiving any rights which it may have at law hereunder,
without further notice or demand (all such notices and
demands hereby be waived) following any of these events:
a. That Lessee should fail to pay rent due hereunder
within 30 days following written notice of default therein.
b. That Lessee shall fail to commence curing any other
violation of its covenants contained in this lease or any
amendments hereto, within 30 days after written notice
thereof, or, having commenced to cure the same as aforesaid,
should fail to carry the same to conclusion with due
diligence.
c. Upon the adjudication of Lessee as bankrupt or the
appointment of a receiver of its property-
6) If the premises or any building of which the premises is
a part or any portion thereof, are made untenantable by
fire, the elements or other casualty, rent for the entire
premises or affected portion there of shall abate from the
date of such casualty to restoration of tenantability.
Lessor shall restore the same with all reasonable speed, and
if Lessor does not restore the premises or the affected
portion to tenantability within sixty days thereafter,
Lessee may then terminate this lease, retroactive to the
date of casualty. If the premises are more than fifty
percent destroyed by such casualty, either Lessor or Lessee
may terminate this lease, retroactive to such date, by
written notice thirty days thereafter, failing such notice,
Lessor shall restore the premises to tenantability within
ninety days of such casualty and rent shall abate from the
date of casualty.
7) Lessee agrees to provide normal maintenance to the
interior of the leased premises. Lessor shall provide water
and garbage pick up. The Lessee will contact Florida Power
and Light Co. and have meter "C " transferred to Lessee.
8) Lessor has the right upon reasonable notice to enter the
premises for reasonable inspections, and to show the same to
prospective tenants.
9) Unless caused by the negligence or willful act of lessor
or its agents or employees, Lessee waives all claims against
Lessor for any and all damages to the property of Lessee, or
from any act or neglect of any other tenant or occupant or
any accident or theft in or about building.
1O) Subject only to Lessee's liability to repair damage
caused by negligence of lessee or the negligence of its
agents, employees, or occupants, Lessor shall at its expense
maintain and keep in repair the exterior of the building and
leased premises including parking lots, driveways and all
structural parts, fixtures, water pipes, etc., except only
those installations, if any, provided by Lessee.
11) Lessor will not unreasonably withhold consent to
Lessee's erection of signs as are reasonably necessary to
Lessee's business and are in keeping with the standards
maintained in the building. It shall be solely, the
Lessee's responsibility to secure any sign permits from the
county if such is required.
12) Lessee, its employees, customer and visitors shall have
the right to use such parking facilities as may adjoin or be
available to the building. Parking spaces shall be limited
to a Pro Rata share of the total number of spaces available.
13) Lessee may install interior petitions at his own
expense and solely responsible for obtaining all necessary
county approvals. Lessee agrees to carry liability
insurance of at least $300,000. With the Lessor as an
additional insured. At the expiration of this lease, the
Lessee agrees to either leave the petitions or remove and
restore the premises to its original condition, at the
option of the Lessor.
14) The Lessee may terminate this lease at the end of the
ninth month by providing 30 days Written Notice to the
Lessor
15) If Lessee shall remain in the demised premises after
the expiration of this lease without having executed an
extension of this lease or a new written lease, the Lessor
shall have the option to treat Lessee either:
a) As one not lawfully entitled to possession of the
premises, and shall thereupon be entitled to take lawful
action for Lessee's immediate removal therefrom, or
b) As a tenant for the next ensuing calendar month and
for each separate ensuing calendar month thereafter, in
which case said tenancy may be terminated by either Lessor
or Lessee as of the end of any calendar month upon thirty
days prior written notice, and Lessee shall pay monthly rent
at the rate herein specified for each such month. No such
holding over shall give rise, whether by operation of law or
otherwise, to any other term or tenancy than that set forth
in this paragraph.
The Schedule Referred To Above
------------------------------
(Floor plan of office space)
IN WITNESS WHEREOF, the parties have caused this lease to be
executed on the date first written above, hereby binding
their respective successors, assigns, heirs, executors and
administrators.
/S/ Tom Bennett /S/ Richard Bennett
- ------------------------- ---------------------
WITNESS LESSOR, RICHARD BENNETT
/S/ Tom Bennett /S/ Charles S. Conoley
- ------------------------ ----------------------
WITNESS LESSEE, PRESIDENT
(no signature)
------------------------
GRANTOR
- -----------
EXHIBIT 6.5
- -----------
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this
28th day of October, 1998, by and among Horizon
Bancorporation, Inc., a Florida corporation ("Holding
Company"), Horizon Bank (in formation), a Florida state bank
("Bank") and Charles S. Conoley, an individual resident of
Manatee County, Florida ("Employee")
RECITALS:
A. The Holding Company and its shareholders have filed
an application with the Division of Banking of the
Department of Banking and Finance of the State of Florida
for approval of a charter for Bank as a de novo Florida
state bank;
B. It is contemplated that the Holding Company will
undertake a public offering ("the "Offering") of its common
stock for the purpose of using proceeds of the Offering to
capitalize Bank;
C. Bank and Holding Company wish to employ Employee,
effective as of the successful completion of the Offering
(as hereinafter defined), as the President and Chief
Executive Officer of Bank and Holding Company; and
D. The parties hereto desire to set forth the terms and
conditions of the employment relationship between Bank and
Holding Company and Employee.
NOW, THEREFORE, in consideration of the mutual
covenants contained herein the parties agree as follows:
A. Duties.
------
1. Bank and Holding Company each hereby employ Employee
as President and Chief Executive Officer, to hold the title
of President and Chief Executive Officer, and to perform
such services and duties as the Board of Directors may, from
time to time, designate during the term hereof. Subject to
the terms and conditions hereof, Employee will perform such
duties and exercise such authority as are customarily
performed and exercised by persons holding such offices,
subject to the general direction of the Board of Directors
of each of Bank and Holding Company, exercised in good faith
and in accordance with standards of reasonable business
judgment.
2. Employee shall serve on the Board of Directors of
Bank and Holding Company and shall be entitled to
compensation paid to the other directors, except for fees
paid to directors for attending meetings.
3. Employee hereby accepts such employment and, during
the term hereof, shall devote his full time, attention and
efforts to the performance of his duties as aforesaid and
shall not engage in any activity which may in any way be in
competition with Bank's business.
B. Term.
----
1. The initial term of employment under this Agreement
shall commence on the date of termination of that certain
consulting agreement between Holding Company and Employee
dated June 8, 1998 (the "Consulting Agreement") and shall
continue until December 31, 2004, unless terminated earlier
pursuant to the terms hereof. If, however, upon termination
of the Consulting Agreement the Bank has not opened for
business, Employee's compensation and terms of employment
shall be governed according to the terms of the Consulting
Agreement as though such Consulting Agreement were still in
effect until such time as the Bank does open for business.
From the date the Bank opens for business forward,
Employee's employment shall be governed by the terms of this
Agreement. Notwithstanding the foregoing, if the Bank has
not opened for business by December 31, 1999, both the
Consulting Agreement and this Agreement shall be considered
null and void.
2. Employment of Employee hereunder may be terminated
by Bank upon the occurrence of any of the following events:
a. The death of Employee;
b. The complete disability of Employee, where
"complete disability" means the inability of Employee, due
to illness, accident, or other physical or mental incapacity
to perform the services provided for hereunder for an
aggregate of ninety (90) days within any period of one
hundred eighty (180) consecutive days during the term
hereof; or
c. The discharge of Employee by the Bank for
cause, where "cause" means:
i. Employee having committed an act or
engaged in conduct which the Board of Directors considers to
be inappropriate;
ii. Such gross negligence or intentional
misconduct as shall constitute, as a matter of law, a breach
of the covenants and obligations of Employee hereunder;
iii. Repeated failure or refusal by Employee
to comply with directives of the Board of Directors made in
good faith and in accordance with the provisions of this
Agreement; or
iv. Failure by Bank, as determined by a vote
of two-thirds (2/3) of the members of the Board of
Directors, to perform at acceptable levels of profitability
and growth.
Termination of employment by Bank shall constitute a
tender by Employee of his resignation as an officer and
director of Bank and Holding Company. Employees' rights and
obligations in the event of termination shall be as set
forth in Paragraph E hereof.
C. Salary and Fringe Benefits.
--------------------------
1. For each of the partial year ending December 31,
1999 and calendar years 2000 and 2001, Bank shall pay
Employee an annual salary as fixed for each year by the
Board of Directors, but which shall not be less than
$96,000, payable in equal monthly installments thereafter.
Employee's annual salary shall be as fixed by the Board of
Directors for each year, but which shall not be less than
his annual salary for the previous year multiplied by 100%
plus the percentage point increase in the Consumer Price
Index (as commonly determined) by comparing the December of
the prior year to December of the year before the prior
year.
2. Employee shall be entitled to participate in any and
all plans of Bank relating to profit sharing, group life
insurance, medical coverage, retirement or other employee
benefit plans that Bank or Holding Company may adopt for the
benefit of its employees. Unless otherwise available under a
plan maintained for all employees, Bank shall provide
Employee with reasonable disability insurance.
3. Employee shall be furnished the free use of a late-
model, four-door sedan or sports utility vehicle and shall
be entitled to a reasonable expense account (to include
monthly country club dues and dues related to one
civic/lunch club membership), the payment of reasonable
expenses for attending annual and periodic meetings of trade
associations, the payment of premiums with respect to a
$250,000 term life insurance policy on his life (the
beneficiaries of which are Employee's family), and any other
benefits which are commensurate with Employee's position and
responsibilities and functions to be performed by Employee
under this Agreement
4. At such reasonable times as the Board of Directors
shall in its discretion permit, Employee shall be entitled,
without loss of pay, to absent himself voluntarily from the
performance of his employment under this Agreement, all such
voluntary absences to count as vacation time. In this
connection, Employee shall be entitled to an annual
vacation: for the partial year ending December 31, 1999 -
two (2) weeks, for the calendar year 2000 - three (3) weeks,
and thereafter - 4 (four) weeks per year and shall schedule
at least two consecutive weeks of vacation each year.
Employee shall not be entitled to receive any additional
compensation from Bank on account of his failure to take a
vacation; nor shall he be entitled to accumulate unused
vacation time from one year to the next.
D. Performance Bonuses and Stock Options.
-------------------------------------
1. As long as Bank and Holding Company maintain either
a CAMEL 1 or CAMEL 2 rating, for the fiscal year ending
December 31, 1999 and for each calendar year thereafter
during the term of this Agreement, Employee shall be
entitled to receive a cash bonus not to exceed fifty percent
(50%) of the annual salary in effect for such year computed
as follows:
a. For the partial year ending December 31, 1999,
in an amount determined by the Board of Directors in its
sole discretion, but not to exceed $10,000, payable on or
before March 31, 2000.
b. For each calendar year thereafter (2000-2004),
an amount determined as a function of Bank meting or
exceeding goals established jointly by Employee and the
Board of Directors before the beginning of such year for
such year with respect to a mix of criteria consisting of
(i) asset group, (ii) return on assets, (iii) return on
equity, (iv) loan loss and (v) delinquencies, all in
accordance with the following schedule:
Bonus Amount Degree of Meeting or Exceeding Goal
- ------------ --------------------------------
10% of Annual Salary Meeting or exceeding goals by
at least 10%
20% of Annual Salary Exceeding goals by 10%-19.99%
30% of Annual Salary Exceeding goals by 20%-29.99%
40% of Annual Salary Exceeding goals by 30%-39.99%
50% of Annual Salary Exceeding goals by 40% or more.
The bonus payable under this Paragraph D.1.b. shall be
paid in quarterly installments, during the year on the basis
of results achieved during the prior quarter, with the final
amount due for the year determined and paid (or refunded) on
or before March 31 of the succeeding year. The relative
weight accorded each of the criteria in determining the mix
shall be fixed jointly by Employee and Board of Directors
for each year and may vary from year to year.
It is agreed and understood that no bonus shall be paid
to Employee for a particular calendar year if at any time
during such year Bank and Holding Company receive other than
a CAMEL 1 or CAMEL 2 rating as a result of an examination by
a relevant regulatory authority.
2. Employee shall be granted options to purchase shares
of common stock of Holding Company, as follows:
Date of Grant: On the commencement date of
this Agreement
Number of Shares: 3% of the total number of
shares sold in the Offering
(the "Total Number of
Shares")
Exercise Price and Period: $5.00 per share; 10 years
from date of grant
Regular Vesting Schedule: .60% of the Total Number of
Shares on each of December
31, 1999, 2000, 2001, 2002
and 2003
ISO's or Non-qualifying
Stock Options: To be determined jointly by
Employee and Board of
Directors of Holding
Company
E. Post-Termination Matters.
------------------------
1. Upon termination of employment hereunder for any
reason, Employee shall not become engaged, in any capacity
whatsoever, in the commercial banking business within
Manatee County for a period of one (1) year. Consistent
therewith, during such year, Employee shall not:
a. Furnish anyone with the name of any customer of
the Bank;
b. Solicit the commercial banking business of,
directly or indirectly, any customer of Bank;
c. Furnish, use, or divulge to anyone any
information acquired by him from Bank relating to Bank's
methods of doing business; or
d. Cause, directly or indirectly, any employee of
Bank to leave his or her employment to work in the
commercial banking business.
2. Upon termination of employment hereunder by
operation of Paragraphs B.2a. or B.2b hereof, (a) Employee
(or his estate) shall be entitled to a severance payment
equal to the annual salary and bonus, if any, that would
have been due Employee for the six (6) full months following
the date of termination, computed on the basis of salary and
bonus, if any, in effect for the year in which such
termination occurs, such severance payment payable in equal
installments over such six (6) full month period and (b) all
stock options granted Employee pursuant to Paragraph D.2.
hereof not then yet vested shall vest on the date of such
termination.
F. Change of Control.
-----------------
1. In addition to any severance payments otherwise due
Employee hereunder, if, during the term of this Agreement,
there occurs a change of control (as hereinafter defined) of
Bank, then
a. If the change of control was opposed by Bank's
or Holding Company's Board of Directors and Employee's
employment is terminated for whatever reason during the two-
year period succeeding the date of change of control
(including by way or voluntary termination), Bank shall pay
Employee (or his estate) a lump sum severance payment equal
to twice his highest annual salary in any of the three (3)
full calendar years preceding such termination; but,
b. If the change of control was not opposed by
Bank's or Holding Company's Board of Directors and
Employee's employment is terminated during the two-year
period succeeding the date of the change of control, other
than for cause (as defined herein), Bank shall pay Employee
(or his estate) a lump sum severance payment equal to one-
time his highest annual salary in any of the three (3) full
calendar years preceding such termination.
2. In addition, upon the occurrence of any change of
control, all stock options granted Employee pursuant to
Paragraph D.2. hereof not yet vested shall vest on the date
of occurrence of such change of control.
3. For purposes hereof, "change of control" means (a)
the acquisition of 25% or more of the voting securities of
Holding Company or Bank by any person or persons acting as a
group within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, or (b) the acquisition of a percentage
of voting securities of Holding Company or Bank between 10%
and 25% if the Board of Directors of Holding Company or
Bank, or any regulatory authority, has made a determination
that such acquisition constitutes a change of control.
G. Waiver of Provisions.
--------------------
Failure of any of the parties to insist, in one or more
instances, on performance by the others in strict accordance
with the terms and conditions of this Agreement shall not be
deemed a waiver or relinquishment of any right granted
hereunder to insist on the future performance of any such
term or condition, or of any other term or condition of this
Agreement, unless such waiver is contained in a writing
signed by or on behalf of all the parties.
H. Governing Law.
-------------
This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of
Florida. If for any reason any provision of this Agreement
shall be held by a court of competent jurisdiction to be
void or unenforceable, the same shall not affect the
remaining provisions thereof.
I. Modification and Amendment.
--------------------------
This Agreement contains the sole and entire agreement
among the parties hereto and supersedes all prior
discussions and agreements among the parties, and any such
prior agreements shall, from and after the date hereof, be
null and void. This Agreement shall not be modified or
amended except by an instrument in writing signed by or on
behalf of the parties hereto.
J. Counterparts.
------------
This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
K. Agreement Nonassignable.
-----------------------
This Agreement may not be assigned or transferred by
any party hereto, in whole or in part, without the prior
written consent of the others.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the year and date first above written.
"Employee" "Holding Company"
Horizon Bancorporation, Inc.
/S/ Charles S. Conoley By: /S/ David K. Scherer
- ------------------------ -------------------------
Charles S. Conoley David K. Scherer
/S/ MaryAnn P. Turner
-------------------------
MaryAnn P. Turner
Authorized Agents
"Bank (in formation)"
By: /S/ David K. Scherer
-------------------------
David K. Scherer
/S/ MaryAnn P. Turner
-------------------------
MaryAnn P. Turner
Authorized Agents
- -----------
EXHIBIT 6.6
- -----------
STOCK REDEMPTION AGREEMENT
This Agreement is made this 28th day of October, 1998,
by and among Charles S. Conoley, M. Shannon Glasgow, Bruce
R. Woodruff, Stephen C. Mullen, Bruce E. Shackleford, Warren
E. Gagner, David K. Scherer, MaryAnn P. Turner and Clarence
R. Urban (hereinafter collectively the "Shareholders").
(A) In connection with the Company's organization and
preparations for an initial public offering of the Company's
common stock, the Shareholders have purchased, collectively
21,600 shares of the Company's Stock (the "Organizational
Shares").
(B) In anticipation of the public offering of the Company's
common stock the Shareholders and the Company desire to
provide for the mandatory redemption of the Organizational
Shares upon the successful completion of the public
offering.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and restrictions set forth herein, the parties
hereto agree as follows:
1. Redemption of Shares. Following successful
completion of the public offering, and as soon as
practicable after the Offering proceeds have been released
from escrow to the Company, the Company shall purchase and
the Shareholders shall sell all Organizational Shares then
issued and outstanding.
2. Redemption Price. The price to be paid by the
Company for redemption of the Organizational Shares shall be
the original purchase price of $5.00 per share.
3. Binding Obligation. The Company's obligation to
purchase and the Shareholder's obligation to sell shall be
mutually binding obligations subject only to the condition
that the public offering be successfully completed and that
the Offering proceeds are released from escrow to the
Company on an unrestricted basis. The above obligations
shall also bind the parties' heirs, successors and assigns.
4. Entire Agreement. This Agreement supercedes all
Agreements previously made between the parties with respect
to the subject matter hereof. There are no other Agreements,
oral or written, between the Parties concerning the subject
matter hereof.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be executed as of the 28th day of October,
1998.
COMPANY:
HORIZON BANCORPORATION, INC.
By:
------------------------------
Charles S. Conoley, President
(Signatures continued on next page)
SHAREHOLDERS:
- ------------------------- --------------------
Charles S. Conoley Warren E. Gagner
- ------------------------- --------------------
M. Shannon Glasgow Stephen C. Mullen
- ------------------------- --------------------
David K. Scherer Bruce E. Shackleford
- ------------------------- --------------------
Mary Ann P. Turner Charles R. Urban
- -------------------------
Bruce R. Woodruff
- -----------
EXHIBIT 6.7
- -----------
SunTrust Bank, Central Florida, N.A.
Financial Institutions Group
Mail Code 0-2068
200 S. Orange Avenue
Orlando, FL 32801
Fax (407) 237-6897
- ----------------------------------------------------
SunTrust
November 2, 1998
Charles S. Conoley, President
Horizon Bancorporation, Inc.
P.O. Box 14684
Bradenton, Fl, 34280
RE: Letter of Commitment
Dear Charlie,
SunTrust Bank, Central Florida, N.A. (Hereinafter 'Lender'),
is pleased to offer this nonassignable commitment. This
commitment is based upon the accuracy of all facts,
statements, financial and other information provided by
Borrower to Lender as part of the loan request. This
commitment to lend is further conditioned upon the terms
outlined below and is subject to execution and delivery of
all documents (Loan Documents) required by Lender in
connection with closing the loan described herein.
While this commitment generally sets forth the provisions,
terms, and conditions of the Loan, it is not all inclusive
and any additional specific provisions, terms and conditions
will be documented to Lender's satisfaction in the form of
the required Loan Documents.
BORROWER: Horizon Bancorporation, Inc.
- ---------
GUARANTORS: Charles S. Conoley
- ----------- Michael S. Glasgow
Stephen C. Mullen
David K. Scherer
Bruce E. Shackelford
Mary Ann P. Turner
Bruce R. Woodruff
Clarence R. Urban
Guarantee on a 125% prorata basis.
LOAN AMOUNT: $300,000
- ------------
PURPOSE: To provide funding for
- -------- organizational expenses
incurred during the formation
of the bank.
TERMS: One year non-revolving lines of
- ------ credit with interest payable
monthly and principal due at
maturity.
COLLATERAL: UCC filings on all furniture,
- ----------- fixtures and equipment as well as
leasehold improvements.
PRICING: Prime - 1%.
- --------
FEES: $125.00
- -----
By acceptance of this commitment, the Borrower agrees to
pay any out-of-pocket expenses incurred by the Bank in
connection with the underwriting of or incidental to the
loan, including applicable documentary stamp (if any) and
intangible tax (if any), recording/filing fees, lien and
financing statement search fees, and all fees and expenses
of the Bank's Counsel, and in each instance whether or not
the Loan is closed or the proceeds disbursed thereunder. No
prepayment penalty will be assessed if the loan is satisfied
prior to the Maturity Date.
Borrower will be required to execute Promissory Notes,
Security Agreements, and all other documentation required at
the sole discretion of SunTrust Bank, in a form and
substance acceptable to SunTrust Bank.
Thank you for allowing SunTrust Bank to service your
financial needs. Please do not hesitate to call me at (800)
432-4760 Ext. 6741 if you have any questions or if I can be
of additional assistance.
Sincerely,
/S/ Kathy S. Petrone
Kathy S .Petrone
Corporate Banking Officer
Sun Trust Bank, Central Florida, National Association
The undersigned hereby accepts this Commitment on this 5th
day of November, 1998:
BORROWER:
Horizon Bancorporation, Inc.
By: /S/ Charles S. Conoley
-------------------------------
Charles S. Conoley, President
- -----------
EXHIBIT 6.8
- -----------
Horizon Bancorporation, Inc.
1,500,000 Shares of Common Stock
(Par Value .01 Per Share)
Agency Agreement
December 17,1998
ATTKISSON, CARTER & AKERS
3060 Peachtree Road, NW
Suite 1400
Atlanta, Georgia 30305
Dear Sirs.
Horizon Bancorporation, Inc., a Florida corporation (the
Company"), hereby confirms its agreement with ATTKISSON
CARTER & AKERS (the "Agent"), as follows:
1. Background. The Company proposes to offer on a "best
efforts basis", up to 1,500.000 shares of common stock (the
"Shares") at a price of $5 per share in an offering to the
public (the "Offering"). The company has filed a
Registration Statement on Form SB-1 with the Securities and
Exchange Commission (the "Registration Statement") pursuant
to which the Company will register the Shares for sale to
the public. All terms not defined herein shall have the
meaning given to them in the Registration Statement. On
terms and conditions specified in this Agency Agreement (the
"Agreement"), the Agent, for the compensation specified
below, will provide the services specified in this Agreement
to assist the Company in the Offering.
2. The Offering.
2.1 Services to be Rendered. In consideration of the
payment of the fees set forth in Section 2.3
hereof, the Agent shall use its best efforts to
offer the Shares to the investing public in
Florida and any other state or states where the
Company deems it appropriate to register the
Offering. The Agent shall also, for the same
consideration, perform the services set forth in
Attachment A to this Agreement.
2.2 Exclusive Engagement. The Company shall not
engage any other person other than the Agent to
solicit offers or sales of Shares during the
Offering Period (as hereafter defined). However,
the Company, may, in its sole discretion,
terminate this Agreement at any time after ninety
(90) days after the date hereof. Upon termination,
the Agent shall be entitled to the investment
banking fee of $10,000, the commissions to which
it would have been entitled up to the date of
termination under the terms hereof, and its out-of-
pocket expenses up to $6,000.
2.3 Compensation. The Company shall pay to the Agent
for the Agent's services in connection with the
Offering a 3% (i.e., $.15 per share) commission on
all Shares sold in the Offering. No commissions
shall be paid on Shares purchased by the
organizing directors or on Shares purchased by a
pre-approved list of close relatives of the
organizers. The Company may elect at any time
during the Offering Period to allow the Agent to
syndicate the remaining shares in the Offering to
a NASD member broker-dealer network (the
"Syndicate"). Upon this election, an 8% commission
shall be paid on all Shares sold by the Syndicate
members. Notwithstanding anything in the Agreement
to the contrary, no commission of any kind shall
be considered to have been earned by the Agent
until the conditions set forth in the Registration
Statement for the release of Offering proceeds by
the Escrow Agent to the Company are satisfied and
such proceeds are actually released. Any
commission then earned with respect to
subscriptions then accepted by the Company will be
paid for the first time within five (5) business
days after the Offering Proceeds are released by
the Escrow Agent to the Company. Any commissions
earned for periods subsequent to such release will
be paid on a bi-weekly basis with respect to
subscriptions accepted by the Company. In
connection therewith, the Company may accept or
reject, in its sole discretion, any subscription
for Shares generated by the Agent in its selling
efforts hereunder.
2.4 Payment of Expenses. The Company will pay all of
its expenses in connection with the Offering,
including, but not limited to, the Company's
attorneys' fees, expenses for auditing and
accounting services, advertising fees, all
securities registration and postage, document
reproduction expenses, and the engraving,
issuance, transfer and delivery of certificates
for the Shares. The Agent shall be responsible for
and shall pay all expenses associated with the
creation of the market plan and the marketing
materials. All other out-of-pocket expenses
incurred by the Agent in connection with the
Offering shall be reimbursed by the Company on a
monthly basis as invoiced; however, these expenses
shall be capped at $6,000, including the Agent's
legal expenses, the NASD filing fee and all travel
and room and board expenses.
2.5 Blue Sky. To the extent required by applicable
state securities law, the Agent may need to obtain
or confirm exemptions, qualifications or
registration of the Shares under applicable state
securities laws. The cost of such legal work and
related filing fees wil be paid by the Company and
will depend upon the states in which the Company
wishes to make sales.
2.6 Sale and Delivery of Shares. Agent will offer the
Shares for sale during the period (the "Offering
Period") commencing with the date that the
Registration Statement is declared effective by
the SEC (the "Effective Date") until the earlier
to occur of (a) the Maximum Offering is achieved,
(b) an earlier termination of the Offering by the
Company pursuant to the Registration Statement or
(c) termination of this Agreement by the Company.
2.7 Escrow Agreement. It is acknowledged that the
proceeds from the sale of Shares will be placed in
a special account with SunTrust Bank Central
Florida, N.A. (the "Escrow Agent"), subject to an
escrow agreement substantially in the form of the
Escrow Agreement which is attached hereto as
Exhibit B and incorporated herein by the reference
(the "Escrow Agreement").
3. Representations, Warranties and Agreements of the
Company. The Company hereby represents and warrants to, and
agrees with the Agent that:
a. The prospectus, including any amendments or
supplements thereto (the "Prospectus") when made
available to prospective purchasers throughout the
Offering Period, will comply in all material
respects with Federal statutes, regulations and
policy statements applicable thereto, including,
without limitation, the applicable rules,
regulations and policy statements of the
Securities and Exchange Commission (the "SEC"). At
all times during the Offering Period, the
Prospectus will contain all information including
financial statements that are required to be
included therein in accordance with applicable
regulations (including interpretations thereof),
and policy statements of the SEC and the
Prospectus will not include any untrue statement
of material fact or omit to state any material
fact required to be stated therein or necessary to
make the statements therein in light of the
circumstances under which they are made not
misleading.
b. The Company is, and at all times during the
Offering Period will be, a corporation duly
incorporated and organized and is, and will be,
validly existing and in good standing under the
laws of the State of Florida. The Company has,
and at all times during the Offering Period will
have, full power and authority to own or lease all
of its properties and conduct all of its business
as described in the Prospectus.
c. The Company is, and at all times during the
Offering Period will be, duly qualified to do
business and in good standing as a foreign
corporation in each jurisdiction where the
ownership or leasing of its properties or the
conduct of its business requires such
qualification.
d. The financial statements contained in the
Prospectus present fairly and accurately the
financial position of the Company as the
respective dates thereof and the results of
operations of the Company for the respective
periods covered thereby, all in conformity with
generally accepted accounting principles applied
on a consistent basis throughout the entire
periods involved.
e. At all times during the Offering Period, except as
set forth in or contemplated by the Prospectus (as
it may be amended), (i) the Company will not have
incurred and will not incur any material
liabilities or obligations, direct or contingent,
except for liabilities or obligations entered into
in the ordinary course of business, and will not
have entered into and will not enter into any
material transactions; and (ii) there will have
been no, and there will be no, material adverse
change, or any development relating to the Company
which the Company has cause to believe would
involve a prospective material adverse change in
or affecting the business, business prospects,
general affairs, management, financial position,
net worth, results of operations, or properties of
the Company, or the value of the assets of the
Company.
f. Except as set forth in or contemplated by the
Prospectus, to the best of its knowledge, the
Company does not have and will not have during the
Offering Period any material contingent
liabilities or obligations.
g. There are no actions, suits or proceedings pending
or, to the best of its knowledge, threatened
against or affecting the Company or its business,
business prospects, financial condition, results
of operations or properties, or against or
affecting any of its principal officers, before or
by any federal or state court, commission,
regulatory body, administrative agency or other
governmental body, domestic or foreign, wherein an
unfavorable ruling or decision or finding would
materially and adversely affect the business,
business prospects, financial condition, results
of operations, or properties of the Company.
h. At all times during the Offering Period, the
Company will have title to all properties and
assets described in the Prospectus as being owned
by the Company, free and clear of all liens,
charges, encumbrances or restrictions, except (i)
such as are described in the Prospectus, (ii) a
mortgage with respect to the parcel where the main
banking facility will be constructed or (iii)
which are not material to the business of the
Company. At all times during the Offering Period,
the Company will have valid, existing and
enforceable leases to the properties and equipment
described in the Prospectus as being leased by the
Company, with such exceptions as are not material
and do not materially interfere with the uses
made, and proposed to be made, of such properties
by the Company.
i. The Company has filed all federal and state income
tax returns which are required to be filed by it
and has paid all taxes shown on such returns and
on all assessments received by it to the extent
such taxes have become due. To the best of its
knowledge, all taxes with respect to which the
Company is obligated have been paid or adequate
accruals have been established to cover any such
unpaid taxes.
j. The Company is not, and at all times during the
Offering Period will not be, in violation of its
articles of incorporation or bylaws or in default
in the performance or observance of any
obligation, agreement, covenant or condition
contained in any bond, debenture, note or other
evidence of indebtedness or in any contract,
indenture, mortgage, loan agreement or other
agreement or instrument to which the Company is a
party or by which it or any of its properties is
bound, and the Company is not, and at all times
during the Offering Period will not be, in
violation of any law, order, rule, regulation,
writ, injunction or decree of any government,
governmental instrumentality or court, domestic or
foreign, of which it has knowledge. Neither the
Company, nor any employee or agent thereof, has
made any payment of funds of the Company or
received or retained nay funds in violation of any
law, rule or regulation which payment, receipt or
retention of funds is not fully disclosed in the
Prospectus.
k. At all times during the Offering Period, there
will be no document or contract of the character
required to be described in the Prospectus which
is not described as required, and the descriptions
in the Prospectus are accurate and complete and
fairly present the information required to be
shown.
l. No statement, representation, warranty or covenant
made by the Company in this Agreement or made in
any certificate or document required by this
Agreement to be delivered to the Agent was or will
be, when made, inaccurate, untrue or incorrect in
any material respect.
m. The Company has full right, power and authority to
enter into this Agreement and this Agreement has
been duly authorized, executed and delivered by
the Company and will be, upon acceptance by the
Agent, a valid and binding agreement of the
Company enforceable in accordance with its terms.
The performance of this Agreement and the
consummation of the transactions contemplated
herein will not result in a breach or violation of
any of the terms or provision of, or constitute a
default under the articles of incorporation or
the bylaws of the Company, any obligation,
agreement, covenant or condition contained in any
bond, debenture, note or other evidence or
indebtedness or in any contract, indenture,
mortgage, loan agreement or other agreement or
instrument to which the Company or any of its
subsidiaries is a party or by which the Company or
any of its subsidiaries or any of their respective
properties is bound, or any law, order, rule,
regulation, writ, injunction or decree of any
government, governmental instrumentality or court,
domestic or foreign, and will not result in the
creation or imposition of any lien, charge claim
or encumbrance upon any property or asset of the
Company. No consent, approval, authorization or
order of any government, governmental
instrumentality or court is required in connection
with the execution of this Agreement or the
consummation of the transactions contemplated by
this Agreement except such as may be required by
the NASD or by state regulatory authorities under
state securities or blue sky laws in connection
with the distribution of the Shares or in
connection with the Agent's services hereunder.
n. For purposes of the Agent's obligation to file
certain documents and make certain representations
to the NASD in connection with the Offering: (i)
the Company has not placed any securities within
the last eighteen months; (ii) there have been no
material dealings within the last twelve months
between the Company and any NASD member or any
person related to or associated with any such
member; (iii) except as contemplated by this
Agreement, no financial consulting contracts are
outstanding with any other person; (iv) there has
been no intermediary between the Agent and the
Company in connection with the Offering and no
person is being compensated in any manner for
providing such intermediary service.
4. Representations, Warranties and Agreements of the
Agent. The Agent represents and warrants to, and agrees
with the Company that:
a. The Agent and all of its agents and representative have
or will have all required licenses and registrations to
perform the Agent's obligations under this Agreement, and
such licenses and registrations will remain in effect during
the term of this Agreement.
b. Any and all information furnished to the Company by the
Agent in writing expressly for use in the Prospectus will
not contain any untrue statement of material fact or omit to
state any material fact necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading.
c. In its selling efforts hereunder, the Agent will not
use, utter or publish any statement which is neither (i)
contained in the Prospectus nor (ii) approved in advance by
the Company.
d. All checks and funds which might be received by the
Agent with respect to the Offering shall be made payable to
the Escrow Agent and transmitted directly to the Escrow
Agent by noon of the next business day after receipt by the
Agent.
e. The Agent shall deliver to the Company the original
copies of all subscription documents of prospective
purchasers received by the Agent in the Offering, and the
Agent will promptly inform the Company of any facts which
come to the Agent's attention which would cause a reasonable
person to believe that such subscription documents contain
any material misstatement or omission.
5. Covenants
5.1 Covenants of the Company. The Company further
agrees with and covenants to the Agent as follows:
(a) To comply with the "Blue Sky" and other securities laws
and regulations of each state in which subscriptions are
solicited in the Offering and to assist the Agent in any
necessary registration or filings that may be required of
the Agent with respect to the Offering, in the states
mutually agreed upon by the Agent and the Company, with any
cost of such registrations or filings incurred by the Agent
to be borne by the Company at its sole expense. The Company
will advise the Agent promptly of the issuance by any state
regulatory authority of any stop order or other order
suspending the registrations or exemptions therefrom of the
Prospectus or of the institution of any proceedings for that
purpose, will use its best efforts to prevent the issuance
of any stop order or other such order, and should a stop
order or other such order be issued, to obtain as soon as
possible the lifting thereof.
(b) To furnish the Agent with such numbers of printed
copies of the Prospectus, with all amendments, supplements
and exhibits thereto, together with subscription materials,
as the Agent may reasonably request, and similarly, to
furnish the Agent and others designated by the Agent with as
many copies of additional sales literature or other
materials approved by the Company for use in connection with
the Offering as the Agent may reasonably request.
(c) Promptly to furnish such information and execute and
file such documents as may be necessary for the Company to
offer and sell the Shares in full compliance with applicable
state and federal statutes, regulations and policy
statements.
(d) To advise the Agent promptly if any event known to the
Company shall have occurred as a result of which the
Prospectus in its then current form (including any
amendments or supplements thereto) would include an untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, no
misleading.
(e) To utilize or furnish no sales literature in connection
with the Offering, other than the Prospectus, unless such
other sales literature has been approved by the SEC and the
NASD, if necessary, and furnished to the Agent at least ten
(10) days prior to its first use and the Agent has failed to
object to the contents of, or the proposed use of, such
other sales literature.
5.2 Covenants of the Agent. The Agent further agrees
with and covenants to the Company as follows:
(a) To comply with the Blue Sky and other securities laws
and regulations of each state in which subscriptions are
solicited in the Offering. The Agent will advise the Company
promptly of the issuance by any state regulatory authority
of any stop order or other such order, and should a stop
order or other such order be issued, will obtain as soon as
possible the lifting thereof.
(b) To utilize or furnish no sales literature in connection
with the Offering, other than the Prospectus, unless such
other sales literature has been approved by the Company, the
SEC and the NASD.
6. Conditions of the Agent's Obligations. The
Agent's obligation to effect the transactions contemplated
by this Agreement shall be subject to the continuing
accuracy throughout the Offering Period of the
representations, warranties and agreements of the Company,
the performance by the Company of all of its obligations
under this Agreement, and the following further terms and
conditions:
(a) At the Effective Date, the Agent shall have received
the favorable opinion of DINUR & ASSOCIATES, P.C. ("D&A")
counsel for the Company, dated as of the Effective Date, to
the effect that:
(i) Company was duly organized as a corporation, and is
existing and in good standing, under the laws of the State
of Florida.
(ii) Company has the corporate power to execute and
deliver this Agreement, to perform its obligations
hereunder, to own and use its Assets and to conduct its
business.
(iii) Company has authorized the execution and delivery
of this Agreement and all performance by Company hereunder
and has duly executed and delivered this Agreement.
(iv) The execution and delivery by Company of this
Agreement do not, and if Company were now to perform its
obligation under this Agreement such performance would not,
result in any: (1) violation of the Company's articles or
incorporation or bylaws; (2) violation of any existing
federal or state constitution, statute, regulation, rule,
order, or law to which Company or its assets are subject;
(3) breach of or default under any material agreements; (4)
creation or imposition of a contractual lien or security
interest in, on or against the assets or under any material
agreements; or (5) violation of any judicial or
administrative decree, writ, judgment or order to which, to
D&A's knowledge, the Company or the assets are subject.
(v) The Agreement is enforceable against the Company.
(vi) No consent, approval, authorization or order of
any government, governmental instrumentality or court is
required in connection with the consummation of the
transactions contemplated by this Agreement except such as
may be required by the SEC, the NASD, or by state regulatory
authorities under state securities or blue sky laws in
connection with the distribution of the Shares by the Agent.
(vii) The Shares conform in all material respects to the
description thereof contained in the Prospectus.
(viii) The issued and outstanding capital stock of the
Company has been, and the Shares to be sold in the Offering,
when issued and delivered against payment of the agreed
consideration therefor, will be, duly authorized and validly
issued, and are, or will be, fully paid and nonassessable.
(ix) The Shares to be delivered are in due and proper
form.
The opinion of D&A shall be governed by, and
interpreted in accordance with, the January 1, 1992 edition
of the Interpretive Standards applicable to Legal Opinions
to Third Parties in Corporate Transactions adopted by the
Legal Opinion Committee of the Corporate and Banking Law
Section of the State Bar of Georgia (the "Interpretive
Standards"), which Interpretive Standards shall be
incorporated in the opinion letter.
(b) At the Effective Date, there shall be furnished to
the Agent a certificate, dated as of the Effective
Date, signed by the President and Secretary of the
Company (collectively the "Officers") in form and
substance satisfactory to the Agent (the
"Certificate") to the effect that, to their best
knowledge and belief:
(i) The Officers of the Company have carefully examined the
Prospectus, and as of the date of such Certificate, the
statements in the Prospectus are true and correct, and the
Prospectus does not misstate or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not untrue or misleading.
(ii) The conditions to the performance of the Agent's
obligations under this Agreement have been complied with.
(iii) Each of the representations and warranties of the
Company contained in this Agreement was when originally made
and is as of the date of such Certificate true and correct.
(iv) No order from any regulatory body has been issued
and no proceedings have been instituted, or to the knowledge
of such Officers contemplated, to prevent the consummation
of the Offering.
7. Indemnification.
(a) The Company will indemnify and hold harmless the Agent,
its officers, directors, counsel, representatives and
persons who control the Agent within the meaning of the
Securities Exchange Act of 1934, from and against all
losses, claims, damages and liabilities, joint and several,
to which any of the aforesaid parties, including the Agent
(collectively, the "Agent Parties"), may become subject,
under federal or state securities laws or otherwise, insofar
as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any
untrue statement or alleged untrue statement of a material
fact contained in the Prospectus, or in any Blue Sky
application or other document executed by the Company or on
its behalf for the purpose of qualifying any or all of the
Shares for sale under the securities laws of any
jurisdiction, or based upon written information furnished by
the Company under the securities laws thereof; if any
omission to state in the Prospectus, or in any Blue Sky
application, a material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
The Company will further reimburse the Agent Parties, and
each and every one of them, for any legal or other expenses
reasonably incurred by any one or more of the Agent Parties
in connection with investigating and defending such loss,
claim, damage, liability or action; provided, however, that
the Company will not be liable in any case to the extent
that the subject loss, claim, damage or liability arises out
of, or is based upon, an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance
upon and unconformity with written information furnished to
the Company by the Agent specifically for use in the
preparation of the Prospectus, Blue Sky application, or any
amendment or supplement thereto. The indemnity provided for
in this Section 7(a) will be in addition to any liability
which the Company may otherwise have.
(b) The Agent will indemnify and hold harmless the Company,
its officers, directors, counsel, representatives and
persons who control the Company which the meaning of the
Securities Exchange Act of 1934, from and against all
losses, claims, damages and liabilities, joint and several,
to which any of the aforesaid parties, including the Company
(collectively, the "Company Parties"), may become subject,
under federal or state securities laws or otherwise, insofar
as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon: (i) any
untrue statement of material fact used, uttered or published
by the Agent in its selling efforts hereunder, unless such
fact was contained in the Prospects, any Blue Sky
application, or any amendment or supplement thereto and did
not fall within the scope of the next-to-the-last sentence
of section 7(a) above; (ii) the omission to use, utter or
publish by the Agent, a material fact required or necessary
in order to make the statements contained in the Prospectus,
any Blue Sky application, or any amendment or supplement
thereto not misleading; or (iii) arising out of any
misrepresentation by the Agent in this Agreement or any
breach of warranty by the Agent with respect to this
Agreement. The Agent will further reimburse the Company
Parties for legal or other expenses reasonably incurred by
the Company Parties in connection with investigating or
defending any loss, claim, damage, liability or action under
this Section (7)(b). The indemnification provided for in
this Section 7(b) shall be in addition to any liability
which the Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under
Section (7)(a) or (7)(b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such Section, notify the indemnifying party in writing
of the commencement of the action; but the omission so to
notify the indemnified party shall not relieve it from any
liability which it may have to an indemnified party
otherwise and under such Section. In any case any such
action shall be brought against any indemnified person, then
it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent it shall so wish,
jointly with any other indemnifying party similarly
notified, the indemnifying party may assume the defense
thereof, with counsel satisfactory to such indemnified party
(who may also be counsel to the indemnifying party only if
the representation of both parties does not constitute a
conflict) and after notice from the indemnifying party to
such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable
to such indemnified party under such Section for any legal
expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable
costs of investigation.
8. Survival Clause. The respective indemnities,
agreements (including, without limitation, the agreement set
forth in Section 7 hereof), representations, warranties and
other statements of the Company and the Agent as set forth
in this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the
results thereof) made by or behalf of the Agent, any officer
or director of the Agent, or counsel therefor, or the
Company or any officer or director of the Company, or
counsel therefor, and shall survive any termination of this
Agreement and the receipt of any payment for the Shares.
9. Notices. All notices under this Agreement shall be in
writing and if sent to the Agent shall be mailed, delivered
or telegraphed to the Agent at the address first provided
above, and if sent to the Company shall be mailed or
delivered to the Company at its present headquarters
address, 3005 26th Street West, Suite C, Bradenton Florida
34205, Attention: President. Any notice shall be deemed to
have given when it is received by the party to whom it is
addressed.
10. Governing Law. Except to the extent governed by
preemptive federal law, this Agreement shall be governed by
and construed in accordance with the substantive laws of the
State of Florida.
11. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same Agreement.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the day and year first
above written.
HORIZON BANCORPORATION,
INC.
By:_____________________________
Charles S. Conoley
President
ACCEPTED AND AGREED TO this _____ day of December,
1998.
ATTKISSON CARTER & AKERS
By:_____________________________
Title:____________________________
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EXHIBIT 6.9
- -----------
BANK RESOURCES, INC.
Suite 106-36
4290 Bells Ferry Road
Kennesaw, Georgia 30144
(770) 591-7011 Fax (770) 516-9247
============================================================
==========
June 22, 1998
Organizers & Directors of a Proposed FL Novo Bank
Bradenton, Manatee County, FL
Ladies and Gentlemen,
We are pleased to offer the following description of the
terms our services to you in connection with the
organization of a FL novo bank and bank holding company to
be located in Manatee County, FL. If the terms of our
engagement meet with your approval please so indicate by
signing the enclosed copy of this letter and returning it to
us for our files. Our engagement will cover the following:
Assistance With Regulatory Process
We understand that you wish to file a charter application
with the Florida State Banking Department (the "FBD") or,
alternatively, the Office of the Comptroller of the Currency
(the "OCC") (collectively "the regulators") to organize a
new commercial bank (the "charter application") and
simultaneously file an application with the Federal Deposit
Insurance Corporation (the "FDIC") for deposit insurance.
We also understand that you wish to file an Application to
become a Bank Holding Company with the Board of Governors of
the Federal Reserve System (the "Fed").
We will determine the specific regulatory steps needed to be
taken before submitting your application and advise you
about such matters as the filing fees, publication of
notices, and brief you about the policies and procedures
generally applied by the regulators and the FDIC to evaluate
such applications.
We will be responsible for preparing a feasibility analysis
for your new bank to demonstrate that there is a need for
the bank and that the convenience of the community will be
enhanced by a new bank. The analysis will include
demographic data for the proposed bank's primary service
area, information on your competition and other relevant
information and data which is required to be set forth in
the applications. The feasibility analysis will be
contained in and part of the charter application.
We will prepare a business plan for the new bank including
the specific types of proposed services to be offered by
your new bank and the pricing of same. The business plan
will also define the appropriate capital structure for the
new bank and the supporting rationale for the structure.
We will propose draft policies and procedures to cover
administrative functions of the new bank including, but not
limited to, lending, investment, security and audit with a
view toward assisting the new bank in passing the field
examination conducted by the regulators, and the FDIC before
the applications will be approved.
We will assist in preparing each Organizers' confidential
Interagency Biographical and Financial Report (the "IBF"),
which must be filed with the charter application, to ensure
that such information complies as to form and completeness
with customary regulators, FDIC and Fed review standards.
Of course it will be incumbent upon each Organizer to
actively participate in the preparation of this statement.
We will assist in the preparation of the FR Y-1. We will
assist in the preparation of an Application to become a Bank
Holding Company (collectively the "BHC App") and in
preparing an appropriate pro forma balance sheet and income
statements, as required by the Fed. We will assist you in
responding to any questions or requests for additional
information from the Fed concerning this application.
We will help you respond to any questions about the
applications from the regulators, the FDIC and the Fed and
work expeditiously to provide additional information,
clarifications, and modifications, as necessary, to the
applications so that the applications are deemed
"Technically complete" and "accepted" for processing.
We will work with your legal counsel in the preparation of
organizational documents for the new bank including Articles
of Association, bylaws and other initial documents required
to be filed with the regulators. The legal fees will be
your direct responsibility and are not part of our
compensation.
In summary, we will assist you with the content,
presentation and format of the charter and deposit insurance
applications and biographical and financial statements. You
recognize and understand that the regulators and the FDIC
expect you to be completely familiar and in agreement with
the content of the charter and deposit insurance
applications, and that Bank Resources cannot and does not
guarantee that the regulators will approve the proposed
bank's charter or that the FDIC will award deposit
insurance.
Term of Engagement
We will continue to provide the aforementioned services
until such time as the proposed bank obtains charter
approval from either the regulators and deposit insurance
from the FDIC. You understand and agree, however, that if
our services are required in conjunction with any protests
by competing financial institutions or, as result of changes
in the composition of the organizing group: or, due to
modifications in the bank's business plan after the charter
application is filed with the regulators and FDIC then such
services are considered beyond the scope of this engagement
letter. If such additional services are needed, we will
bill you on the basis of the number of hours provided and at
our normal and customary rates per hour. Our rate are
$135.00 per hour for principals $100.00 per hour for senior
consultants, and, $20.00 per hour for administrative
assistants.
You may, however, elect to terminate this engagement at any
time so long as you are current in the payment of all fees
and expense reimbursements required in the section entitled
"Compensation" below and current in the payment of all fees
and expenses (both billed and incurred) in the event that
additional services described in the preceding paragraph are
provided. Any such termination will become effective
immediately upon receipt by us of a written notice of
termination. If we have completed the charter application
and related materials, then such termination will not after
the obligation of the organizers to pay all professional
fees contemplated in the following description of
"Compensation." You understand and agree that all payments
received prior to such termination will not be subject to
refund. In the event of a termination, we will cease
providing you with all services,
Compensation
We will prepare the bank's charter application and deposit
insurance application which includes the combination
feasibility study and business plan, the related financial
projections for the banws first five years, and assistance
with the preparation of IBF Reports. We will also attend up
to six organizational meetings and also attend the pre-
filing meeting with the regulators staff. For the Charter
Application services you agree to pay us professional fees
in the amount of $41,200.00 as follows: $5,500.00 as of July
1, 1998; $5,500.00 on the first day of each month for five
months thereafter; a payment of $5,500. 00 either when you
receive preliminary approval for the charter application or
eight months following the execution of this engagement
letter, which ever occurs first; and a final payment of
$2,700.00 when the bank opens. You shall pay $250.00 for
assistance with the preparation IBF Reports for each
Organizer/Director added to the group above fifteen.
Once the Bank receives final charter approval from the
regulators, you shall grant to us stock options ("Options")
to purchase 4,000 shares of the Bank's common stock. The
Options shall expire ten years from the date of award (or
the opening of the Bank, whichever is later) and the price
each share of stock purchased shall be $5.00 (the "exercise
price"). 1
Notwithstanding anything to the contrary as described above,
the Options shall be awarded under substantially the same
terms and conditions as any stock warrants or stock options
which may be awarded to the Organizers of the Bank, officers
or the Board of Directors. However the Options contemplated
herein shall be transferable; subject to "corporate
reorganizations" (which may result in a proportionate
increase or decrease in the number of Options and/or the
exercise price); and/or, exercisable in whole or in part.
In the event you organize a bank holding company, the
Options contemplated herein shall be issued by the bank
holding company.
In the event that the Options described above are not
awarded for any reason, within six months of the date the
Bank is chartered, then the Company or the Bank shall
immediately pay Bank Resources, Inc. an amount equal to
$0.675 per option.
In addition to the professional fees described above, you
will be invoiced on or about the fifth business day of each
month for all expenses incurred for your account including
those incurred in connection with pre organization
activities. We expect to incur such expenses as demographic
and peer data, express and local courier services,
duplication and binding of numerous copies of the
applications and out of pocket expenses. (Telephone, travel
(for up to six Organizer meetings and up to one pre-Filing
meeting with the regulators) and facsimile charges shall be
our responsibility.) You shall pay a client maintenance fee
of $25.00 per month starting July 1, 1998 and continue until
the Bank opens for business.
All invoices shall be due and payable upon receipt. A two
percent (2%) administrative fee will be applied to all
invoices. You may take a discount equal to the amount of
the administrative fee if we receive your payment within ten
(10) days of invoice date. We apply a late fee of one
percent (1%) per month to all unpaid invoices. In the event
the charter application has not been filed by October 1,
1998; and, by September 15, 1998, your primary service area
has been defined, your bank location and cost have been
finalized, and all Organizers have completed their IBF
Reports, then you may withhold payment of professional fees
until such time as the charter application is been filed.
Our fees are not contingent on whether the Charter
Application is granted. Accordingly, we do not warrant or
guarantee that the regulators will grant a charter on your
behalf.
Miscellaneous
Because we recognize that our engagement by you will
necessarily involve exposure to confidential information
with respect to your proposed bank and the organizers and
directors thereof, we agree to hold such information in
confidence and will not disclose same to third parties
without your prior written consent. Likewise, the terms of
our engagement by you and the proposed bank are
confidential. No disclosure may be made to a third party
without our prior written consent, except by reason of
legal, accounting, or regulatory requirements.
You understand and agree that the terms of our engagement
will be governed under Florida law and that this letter sets
forth all of the terms and conditions with respect to such
engagement. Any amendment or modification of our engagement
must be made in writing and signed by each of us. Neither
party to this engagement may bring an action more than one
year after the cause of action arises.
You agree to hold our firm and its employees harmless from
any and all liabilities, costs, and expenses to this
engagement, and expenses (and those of our legal counsel)
incurred by reason of any action la committed to be taken by
us in good faith. In no event will we be liable for
incidental or consequential damages even if we have been
advised of the possibility of such damages.
**********
We very much look forward to working with you on this
project and trust that this letter meets with your approval.
Of course, please do not hesitate to contact the undersigned
should you have any questions regarding this matter.
BANK RESOURCES, INC>
By: _______/S/__________________
E. Byron Richardson
Principal
Acknowledged, Agreed and Accepted by the undersigned
Organizers on this the effective date hereof the 1st day of
July, 1998.
Enclosed is the retainer plus the client maintenance fee
described above.
Signature Date
Signature Date
/S/ Michael Shannon Glasgow 7/1/98 Bruce
R. Woodruff 7/1/98
/S/ David K. Scherer 7/1/98
/S/ Charles s. Conoley 7/1/98
/S/ Clarence R. Urban 7/1/98
/S/ Stephen C. Mullen 7/1/98
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EXHIBIT 9
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ESCROW AGREEMENT
This ESCROW AGREEMENT effective as of the 30th day of
October, 1998 by and among,
Horizon Bancorporation, Inc., located at Suite C, 3005-26th
Street, West, Bradenton, Florida 34205 (hereinafter referred
to as the "Issuer")
and
SunTrust Bank, Central Florida, National Association,
located at 225 East Robinson Street Suite 250, Orlando,
Florida 32801 (hereinafter referred to as the "Escrow
Agent')
WITNESSETH:
WHEREAS, the Issuer intends to offer and sell to
various investors (the "Subscribers") no less 1,050,000
shares and no more than 1,500,000 shares of its capital
stock, par value .01 per share (the "Capital Stock"), at a
subscription price of $5.00 per share pursuant to an
offering to the public (the "Offering"), and
WHEREAS, the Issuer must sell at least 1,050,000 shares
("Required Offering") of Capital Stock on or before the date
stipulated in Addendum A attached hereto ("Required Offering
Deadline"); and
WHEREAS, the release of the subscription funds to the
Issuer is contingent Upon the grant of preliminary approval
for the requisite charter (the "Charter") from the Florida
Department of Banking and Finance (the "Florida Department")
on or before the Expiration Date (the "Expiration Date") set
forth in the Offering Circular of the Issuer relating to the
Offering; and
WHEREAS, the parties hereto wish to agree among
themselves as to the treatment of all subscription proceeds
which may be in the form of checks, cashier's checks and/or
money orders (the "Proceeds"), along with properly executed
subscription agreements, from the Subscription pursuant to
the Offering until such time as the Charter is granted.
NOW, THEREFORE, in consideration of the mutual promises
herein contained, the parties hereto agree as follows:
1. Creation of Escrow Agreement. Pursuant to the
terms and conditions of this Agreement, the parties do
hereby agree that the Escrow Agent shall act as escrow agent
in regard to Proceeds received from the Subscribers for the
Capital Stock pursuant to the Offering.
2. Deposit and Delivery of Proceeds and
Subscription Agreements. The Escrow Agent shall deposit and
hold in escrow under this Agreement all Proceeds received by
the Issuer from the Subscribers in regard to the purchase of
the Capital Stock pursuant to the Offering, The Escrow Agent
shall have no responsibility whatsoever in regard to
Proceeds not received and for funds that have not yet
cleared and become good funds. Subscribers shall make the
payment for the capital Stock payable to the Escrow Agent.
In the event checks are made payable to the Issuer, the
Issuer shall promptly endorse said checks to the order of
the Escrow Agent. Simultaneously with the delivery of the
Proceeds, the Issuer shall deliver to the Escrow Agent the
Subscription Agreements and copies of the written
acceptances for which the Proceeds represent payments, The
Escrow Agent shall hold the Proceeds and Subscription
Agreements pursuant to the terms and conditions of this
Agreement.
3. Partial Rejection of Subscription Agreements.
Should the Issuer elect to accept a subscription for less
than the number of shares shown in a Subscribers
Subscription Agreement by indicating such lesser number of
shares on the written acceptance of the Issuer transmitted
with the Subscription Agreement and payment therefore the
Escrow Agent shall deposit such payment in the escrow
account and then remit within thirty (30) days to such
Subscriber at the address shown in his Subscription
Agreement that amount of his Proceeds in excess of the
amount which constitutes full payment for the number of
subscribed shares accepted by the Issuer as shown in the
Banks written acceptance, such amount to be remitted without
interest or reduction.
4. Achievement or Failure to Achieve Required
Offering. The Escrow Agent shall notify the Issuer in
writing at such time as it has received Proceeds totaling at
least $5,250,000 exclusive of those which have been rejected
by the Issuer and shall continue to receive and hold such
funds until notified by the Issuer to release the proceeds
to the Issuer. If, on or before the Expiration Date, the
Escrow Agent shall not have received Proceeds from the
Subscribers for at least $5,250,000, the Escrow Agent shall
return to each Subscriber the appropriate amount of the
Proceeds (without interest or deduction) received and
collected from him hereunder.
5. Failure to Request Proceeds. If, by the close
of business on the Expiration Date, the Issuer shall not
have, delivered a written request to the Escrow Agent
authorizing release of the Proceeds, the Escrow Agent shall
promptly return to the Subscribers the Proceeds (without
interest or deduction) received and collected from them
hereunder.
6. Request For Proceeds. Subject to provision of
paragraph 4, hereof, if the Issuer delivers a written
request to release Proceeds, the Escrow Agent shall, Within
three (3) days of receiving notification thereof from the
Issuer, pay to the Issuer all cleared proceeds then and
thereafter received by it (including any interest earned
thereon) after deducting therefrom the fees and costs of the
Escrow Agent as set forth in Paragraph 1 5 hereof
7. Return of Proceeds to Subscribers. If
instructed in writing to do so by the Issuer the Escrow
Agent agrees to return to any Subscriber, whether his
Subscription Agreement has been accepted by the Issuer or
not, Proceeds deposited pursuant to this Agreement by the
Subscriber. Written instruction by the Issuer to return
funds to a Subscriber must be received by the Escrow Agent
prior to the Escrow Agent's disbursement of Proceeds
pursuant to Paragraph 6 of this Agreement. The Escrow
Agent, in returning funds to the Subscribers hereunder, may
rely on the names and addresses furnished to the Escrow
Agent by the Issuer without the requirement of independent
verification, All returns and deliveries to a Subscriber
under this Agreement shall be mailed, by regular mail, to
the residential or business address of such Subscriber,
appearing on his Subscription Agreement. Any payment to a
Subscriber will be made by check.
8. Investment of Proceeds by Escrow Agent. The
Escrow Agent shall, at the direction of the President of the
Issuer, invest the Proceeds in one or more mutual funds or a
master repurchase agreement comprised solely of investments
in United States government, United States government backed
securities and repurchase agreements collateralized by
United States government backed securities. Interest and
other monies earned on said investments shall accrue to the
benefit of the Issuer; provided, however, if the Required
Offering is not obtained, interest and other monies earned
on said investments shall be paid to Subscribers, with the
Issuer remaining obligated to pay the fees of the Escrow
Agent. The Escrow Agent shall advise the Issuer as to the
form of investments into which the Proceeds have been
placed, and furnish to the Issuer periodic, and final
reports. of said investments. The Escrow Agent shall have
no liability or obligation whatsoever for the status of said
investments or the failure of said investments.
9. Duties of Escrow Agent. The Escrow Agent
undertakes to perform only such duties as we expressly set
forth herein mid no implied duties or obligations shall be
read into this Agreement against the Escrow Agent.
10. Reliance of Escrow Agent. The Escrow Agent may
act in reliance upon any writing or instrument or signature
which the Escrow Agent, in good faith, believes to be
genuine, may assume the validity and accuracy of any
statement or assertion contained in such a writing or
instrument, and may assume that any person purporting to
give any writing, notice, advice or instructions in
connection with the provisions hereof has been duly
authorized to do so.
11. Indemnification of Escrow Agent. Unless the
Escrow Agent discharges any of its duties hereunder in a
negligent manner or is guilty of misconduct with regard to
its dudes hereunder, the Issuer hereby agrees to indemnify
the Escrow Agent and hold it harmless from any and all
claims, liabilities, losses, actions, suits or proceedings
at law or in equity, or any other expenses, fees or charges
of any character or nature which it may incur or with which
it may be threatened by reason of its acting as Escrow Agent
under this Agreement; and in connection therewith, to
indemnify the Escrow Agent against any and all expenses,
including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any
claim.
12. Discretion of Escrow Agent to File an
Interpleader Action in the Event of Dispute. If the parties
shall be in disagreement about the interpretation of this
Agreement, or about the rights and obligations, or the
propriety of any action contemplated by the Escrow Agent
hereunder, the Escrow Agent may, but shall not be required
to, file an action of interpleader to resolve the
disagreement and may hold all Proceeds until directed by a
court of competent jurisdiction as to the manner or
distribution or until all parties in dispute mutually agree
to the distributions The Escrow Agent shall be indemnified
as set forth in Paragraph 11 for all cost, including
reasonable attorneys' fees incurred by it, in connection
with the aforesaid interpleader action, and shall be fully
protected in suspending all o-r part of its activities under
this agreement until a final judgment or other appropriate
order in the interpleader action is entered.
13. Consultation with Counsel. The Escrow Agent
may consult with independent counsel of its own choice and
shall have full and complete authorization and protection in
accordance with the opinion of such counsel. The, Escrow
Agent shall otherwise not be liable for any mistakes of fact
or errors of judgment, or for any acts or omissions of any
kind unless caused by its negligence or misconduct.
14. Resignation of Escrow Agent. The Escrow Agent
may resign upon thirty (30) days written notice to the
Issuer. If a successor Escrow Agent is not Appointed by the
Issuer within this thirty (30) day period, the Escrow Agent
may petition a court of competent jurisdiction to name a
successor or, at its option, the Escrow Agent may do nothing
until such time as the Issuer has furnished the name of a
successor Escrow Agent or otherwise directed the Escrow
Agent as to the disposition of Proceeds; provided, however,
if the Charter has not been received the Escrow Agent shall
not pay to the Issuer any of the Proceeds.
15. Compensation and Expenses. The Escrow Agent
shall be entitled to compensation from the Issuer for its
services hereunder in an amount of $1,500.00. In the event
Escrow Agent must return the escrow funds to a Subscriber,
the Issuer agrees to compensate Escrow Agent by paying said
Agent an additional $10.00 per Subscriber.
16. Notices. All notices permitted or required to
be given to any party under this Agreement shall be in
writing and shall be deemed to have been given upon receipt
by the party being notified. In the case of the Issuer,
such notices shall be sent to:
Charles S. Conolev
Suite C
3005-26th Street West
Bradenton, Florida 34205
AND
Daniel D, Dinur
One Lakeside Commons
990 Hammond Drive, Suite 760
Atlanta, GA 30328
Either party may change the address, at which said
notice is to be given by giving notice of such to all other
parties to this Agreement in the manner set forth herein.
17. The rights created by the Agreement shall inure
to the benefit of, and the obligations created hereby shall
be binding upon, the successors and assigns of the Escrow
Agent.
18. Laws of the State of Florida to Apply. This
Agreement shall be construed in accordance with, and
governed by the laws of, the State of Florida.
19. Termination. This Escrow Agreement shall
terminate and the Escrow Agent shall be discharged of all
further responsibility hereunder at such time as the Escrow
Agent shall have completed its duties under Paragraphs 4, 5
or 6, as the case may be.
20. Complete Agreement. This Agreement constitutes
the complete agreement between the parties hereto and
incorporates all prior discussions, agreements and
representations made in regard to the matters set forth
herein. This Agreement may not be amended, modified or
changed except by a writing signed by the party to be
charged by said amendment, change or modification.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first above written.
Horizon Bancorporation, Inc.
(CORPORATE SEAL)
By:
-------------------------------
Name: Charles S. Conoley
Title: President
SunTrust Bank, Central Florida, National Association
By:
-------------------------------
Deborah Moreya
First Vice President
- ----------------
EXHIBIT 10(A)(1)
- ----------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTS
Horizon Bancorporation, Inc.:
We hereby consent to the use in this Registration
Statement on Form SB-1 of our report dated November 9, 1998,
relating to the financial statements of Horizon
Bancorporation, Inc., Bradenton, Florida, and to the
reference to our Firm under the caption "Experts" in the
Prospectus.
/S/
Francis & Company
Atlanta, Georgia
November 20, 1998
- ----------
EXHIBIT 11
- ----------
Dinur & Associates, P. C.
Attorneys and Counselors
ONE LAKESIDE COMMONS
990 HAMMOND DRIVE, SUITE 760
ATLANTA, GA 30328
PHONE: (770) 395-3170
FACSIMILE: (770) 395-3171
January 12, 1998
Horizon Bancorporation, Inc.
Suite C, 3005-26th Street West
Bradenton, Florida 34205
Re: Registration Statement on Form SB-1
Gentlemen:
We have acted as counsel for Horizon Bancorporation,
Inc. (the "Company") in connection with the preparation for
the filing with the Securities and Exchange Commission of a
Registration Statement on Form SB-1 (the "Registration
Statement") under the Securities Act of 1933, as amended.
The Registration Statement relates to an aggregate of
1,236,000 shares of the Company's common stock, $.01 par
value (the "Shares") and 264,000 units each consisting of
one share and one warrant to purchase one share (the
"Units"). The Shares and Units will be sold by the Company
through Attkisson, Carter & Akers, as sales agent.
We have examined such corporate records, documents,
instruments and certificates of the Company and have
received such representations from the officers and
directors of the Company and have reviewed such questions of
law as we have deemed necessary, relevant or appropriate to
enable us to render the opinion expressed herein. In such
examination, we have assumed the genuineness of all
signatures and the authenticity of all documents,
instruments, records and certificates submitted to us as
originals.
Based upon such examination and review and upon the
representations made to us by the officers and directors of
the Company, we are of the opinion that the Shares to be
issued have been duly and validly authorized and will be,
upon issuance and delivery against payment therefor in the
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,
/s/
Daniel D. Dinur
DDD/mtl
