As filed with the Securities and Exchange Commission on November
13, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAPITAL BANCORP
(Exact name of registrant as specified in its charter)
Florida 59-2160717
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Identification No.)
Organization)
1221 Brickell Avenue
Miami, Florida 33131
(305) 536-1500
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Daniel M. Holtz
Chairman of the Board, President and Chief Executive Officer
Capital Bancorp
1221 Brickell Avenue
Miami, Florida 33131
(305) 536-1500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of communications to:
Robert L. Grossman, Esquire Timothy E. Kish, Esquire
Greenberg, Traurig, Hoffman, Senior Vice President
Lipoff, Rosen & Quentel, P.A. and General Counsel
1221 Brickell Avenue Capital Bancorp
Miami, Florida 33131 1221 Brickell Avenue
(305) 579-0500 (305) 536-1500
Approximate date of commencement of proposed sale to the public:
From time to time after this Registration Statement
becomes effective.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to
be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933 (the "Securities Act"), other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and
list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. []
If delivery of the prospectus is expected to be made pursuant
to Rule 434, please check the following box. [ ]
[CAPTION]
<TABLE>
<S> <C> <C>
CALCULATION OF REGISTRATION FEE
Proposed
Title of Class Amount Maximum
of Securities to to be Offering Price
be Registered Registered Per Share (1)
Common Stock, 120,000 shares $36.00
$1.00 par value
(continued)
<S> <C> <C>
Title of Class Proposed Maximum Amount of
of Securities to Aggregate Offering Registration
be Registered Price (1) Fee
Common Stock, $4,320,000.00 $1,489.66
$1.00 par value
</TABLE>
(1) Estimated solely for the purpose of calculating the
registration fee and, pursuant to Rule 457(c), based on the
average of the high and low sale prices for the Common Stock
reported by the Nasdaq National Market on November 8, 1995.
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
Information contained herein is subject to completion or amendment.
A registration statement relating to these securities has been
filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted prior
to the time the registration statement becomes effective. This
prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under
the securities laws of any such State.
PROSPECTUS
SUBJECT TO COMPLETION, NOVEMBER 13, 1995
120,000 Shares
CAPITAL BANCORP
Common Stock
This Prospectus relates to an aggregate of 120,000 shares (the
"Shares") of Common Stock, par value $1.00 per share (the "Common
Stock"), of Capital Bancorp, a Florida corporation (the "Company"),
proposed to be sold from time to time by certain shareholders of
the Company (the "Selling Shareholders"). See "Selling
Shareholders." The Company will not receive any proceeds from the
sale of the Shares by the Selling Shareholders.
The Company has been advised by the Selling Shareholders that
they may from time to time sell all or a portion of the Shares
offered hereby in one or more transactions in the over-the-counter
market, on the National Market of the National Association of
Securities Dealers Automated Quotation System, Inc. ("Nasdaq
National Market") (or any exchange on which the Common Stock may
then be listed), in negotiated transactions, or pursuant to a
combination of such methods of sale. The Shares will be sold at
market prices prevailing at the time of sale, at prices related to
such market prices or at negotiated prices. The Selling
Shareholders may effect such transactions by selling the Shares to
or though broker-dealers, who may receive compensation in the form
of underwriting discounts, concessions or commissions from the
Selling Shareholders or purchasers of the Shares, or both, for whom
they may act as agent (which compensation may be in excess of
customary commissions). The Selling Shareholders and any
participating broker-dealers may be deemed to be "underwriters" as
defined in the Securities Act of 1933, as amended (the "Securities
Act"). Neither the Company nor the Selling Shareholders can
presently estimate the amount of commissions or discounts, if any,
that will be paid by the Selling Shareholders in connection with
their sale of the Shares from time to time.
The Company has agreed to indemnify the Selling Shareholders
against certain liabilities, including liabilities under the
Securities Act. See "Plan of Distribution."
The Common Stock is quoted on the Nasdaq National Market under
the symbol "CBCP." On November 8, 1995, the last reported sale
price of the Common Stock on the Nasdaq National Market was
$36.6250 per share. As of October 31, 1995, there were 7,377,431
shares of Common Stock issued and outstanding.
The Company will pay all of the expenses, estimated to be
approximately $26,490, in connection with this offering, other than
underwriting commissions and discounts and counsel fees and
expenses of the Selling Shareholders. The Shares are being
registered at the request of the Selling Shareholders pursuant to
a stock purchase agreement entered into by the Company, its
subsidiary, Capital Bank, and the Selling Shareholders with respect
to the Shares.
FOR A DISCUSSION OF CERTAIN RISKS THAT SHOULD BE CONSIDERED IN
EVALUATING AN INVESTMENT IN THE SHARES, SEE "RISK FACTORS"
BEGINNING ON PAGE 6.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY
STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this Prospectus is November 13, 1995
CAPITAL BANCORP
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . . . . .
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE. . . . . . . .
THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . .
RISK FACTORS . . . . . . . . . . . . . . . . . . . . . . . . .
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . .
SELLING SHAREHOLDERS . . . . . . . . . . . . . . . . . . . . . .
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . .
DESCRIPTION OF COMMON STOCK. . . . . . . . . . . . . . . . . . .
LEGAL MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . .
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
No person has been authorized to give any information or to
make any representations other than as contained or incorporated by
reference in this Prospectus in connection with the offering made
hereby, and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company.
This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than those
described in the cover page, or an offer to sell or a solicitation
of an offer to buy the Shares offered hereby in any jurisdiction
where, or to any person to whom, it is unlawful to make such offer
or solicitation. Neither the delivery of this Prospectus nor any
sales made hereunder shall, under any circumstances, create any
implication that there has been no change in the affairs of the
Company since the date hereof or that the information contained
herein is correct as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other
information filed by the Company may be inspected and copied (at
prescribed rates) at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549 and at the Commission's regional offices located at
Seven World Trade Center, Suite 1300, New York, New York 10048 and
500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Quotations relating to the Company's Common Stock appear on the
Nasdaq National Market and reports, proxy statements and other
information concerning the Company can also be inspected at the
offices of the National Association of Securities Dealers, Inc.,
1735 K Street, N.W., Washington, D.C. 20006.
The Company has filed with the Commission a Registration
Statement on Form S-3 (the "Registration Statement") under the
Securities Act with respect to the Shares offered hereby. This
Prospectus, which is a part of the Registration Statement, does not
contain all the information set forth in, or annexed as exhibits
to, such Registration Statement, certain portions of which have
been omitted pursuant to rules and regulations of the Commission.
For further information with respect to the Company and the Shares,
reference is hereby made to such Registration Statement, including
the exhibits thereto. Copies of such Registration Statement,
including exhibits, may be obtained from the aforementioned public
reference facilities of the Commission upon payment of the
prescribed fees, or may be examined without charge at such
facilities. Statements contained herein concerning any document
filed as an exhibit are not necessarily complete and, in each
instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission under the Exchange Act are incorporated in and made a
part of this Prospectus by reference:
(a) the Company's Annual Report on Form 10-K for the
year ended December 31, 1994;
(b) the Company's Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 1995 and June
30, 1995; and
(c) the Company's Registration Statement on Form 8-A
(Registration Number 0-26080) filed with the
Commission on July 17, 1995, registering the
Company's Common Stock under Section 12(g) of the
Exchange Act.
All documents filed by the Company pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act subsequent to the date
hereof and prior to the termination of this offering shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement
contained herein, or in any other subsequently filed documents,
which also are incorporated or deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Prospectus.
This Prospectus incorporates documents by reference which are
not presented herein or delivered herewith. The Company hereby
undertakes to provide, without charge, to each person, including
any beneficial owner, to whom a copy of this Prospectus is
delivered, on the written or oral request of such person, a copy of
any or all of the information incorporated herein by reference.
Exhibits to any of such documents, however, will not be provided
unless such exhibits are specifically incorporated by reference
into such documents. The requests should be addressed to the
Company's principal executive office: Attn: Timothy E. Kish,
Senior Vice President and General Counsel, 1221 Brickell Avenue,
Miami, Florida 33131, telephone number (305) 536-1500.
THE COMPANY
Capital Bancorp (the "Company") is a bank holding company that
conducts it operations primarily through its wholly-owned banking
subsidiary, Capital Bank, a Florida chartered bank ("Capital
Bank"), and commercial factoring subsidiary, Capital Factors, Inc.,
a Florida corporation ("Capital Factors"). The Company was
incorporated in Florida in April 1981 to acquire the common stock
of Capital Bank, which commenced operations in 1974. Headquartered
in Miami, Florida, Capital Bank operates 28 branch offices in Dade,
Broward and Palm Beach counties. Capital Bank is primarily engaged
in the delivery of retail banking products and services to
customers and commercial and real estate lending activities. In
May 1985, Capital Bank acquired 100% of the common stock of Capital
Factors and in June 1994, Capital Factors completed a
reorganization in which Capital Factors Holding, Inc., a Florida
corporation ("Capital Factors Holding"), was formed. Capital Bank
exchanged 100% of its Capital Factors common stock for 100% of
Capital Factors Holding common stock. Capital Factors, which is
based in Fort Lauderdale, Florida, provides commercial factoring
services to manufacturers, wholesalers and service companies,
primarily in South Florida, New York City, Southern California and
North Carolina, and operates regional offices in Los Angeles,
California, New York, New York and Charlotte, North Carolina. In
addition, the Company owns approximately 4.9% of the common stock
of Capital Bank, N.A., a commercial bank located in Washington,
D.C.
The primary focus of Capital Bank is to provide a wide variety
of quality financial services to small and medium size businesses
and general retail customers within South Florida. Capital Bank
offers checking and other deposit services, makes commercial,
installment and real estate loans, transmits funds, operates an
international division, offers discount brokerage services and
performs such other banking services as are usual and customary for
banks of similar size and nature in South Florida. Additionally,
Capital Bank's international division is engaged primarily in
financing the import and export of goods from countries in Latin
America and, to a lesser extent, countries in Europe and the Far
East. The international division is also engaged in the
refinancing of trade-related credits for foreign banks. Capital
Factors provides factoring services to a variety of companies
including textile and apparel manufacturers and manufacturers and
distributors of consumer goods such as plastics, chemicals, paper,
perfume and beauty aids. Capital Factors primarily purchases
receivables from its clients and assumes all risks of
collectibility, except for such risks resulting from fraud or
invalid receivables, and from time to time makes interest-bearing
advances to such clients.
At September 30, 1995, the Company had total assets of $1.5
billion, total deposits of $965 million and shareholders' equity of
$108 million. As of October 31, 1995, 7,377,431 shares of the
Company's Common Stock were issued and outstanding.
The Company is subject to regulation by, and files annual
reports with, the Board of Governors of the Federal Reserve System
(the "FRB") and such additional information as the FRB requests.
Capital Bank is subject to supervision and regulation by the
Florida Department of Banking and Finance (the "FDBF") and the
Federal Deposit Insurance Corporation (the "FDIC"). The deposits
of Capital Bank are insured by the Bank Insurance Fund of the FDIC.
The principal executive offices of the Company are located at
1221 Brickell Avenue, Miami, Florida 33131, and its telephone
number is (305) 536-1500.
RISK FACTORS
Before investing in the Common Stock, prospective purchasers
should carefully consider the matters set forth below as well as
the other information set forth in this Prospectus.
No Assurance of Financial Success
Banking continues to be complicated by competitive, regulatory
and other factors, and by adverse economic conditions. The
Company's continued success will depend on Capital Bank's ability
to procure funds at a cost below its earnings on assets funded
therewith, on its ability to effectively manage its loans and other
assets, liabilities and related income and expenses, and on the
availability of capital to support its current operations and
future plans. In addition, because of risks involved in the
collection of receivables, no assurances can be given that the
factoring activities conducted by Capital Factors will continue to
be profitable. As a result of the foregoing, there can be no
assurances that the Company will continue to be successful and
achieve its objectives.
Competition and Changes in the Banking Industry
The banking industry in South Florida, the Company's primary
market, is highly competitive. There are many larger financial
institutions that operate in this area, including subsidiary banks
of statewide regional bank holding companies, finance companies,
thrift institutions and foreign banks. In addition to the
traditional banking institutions, there are other entities which
compete in the lending market, such as insurance companies,
mortgage lenders, and small loan companies. The stock market,
mutual funds, and other non-federally insured investments also
compete with banks for their traditional source of funds, customer
deposits. Competition in the banking industry places pressure on
banks to lower the rates they charge on the loans they make and to
increase the rates they pay on deposits, which reduces the spread
between these two rates of interest and, in turn, a bank's
profitability. Banks are also pressured to reduce the fees they
charge for services, further reducing profitability.
Additionally, the financial services industry is undergoing
rapid transformation. During 1995, there have been many highly-
publicized consolidations of large banking groups. In addition,
the Riegle-Neal Interstate Banking and Branching Efficiency Act of
1994 (the "Riegle-Neal Act"), as well as other legislation pending
in Congress, has affected and will continue to affect the banking
industry. In particular, as of September 29, 1995, the Riegle-Neal
Act permits adequately capitalized and managed bank holding
companies to acquire control of banks in any state. Additionally,
beginning on June 1, 1997, the Riegle-Neal Act will permit banks to
branch across state lines, although individual states may authorize
interstate branches earlier. There is also pending certain
congressional legislation seeking to repeal the Glass-Steagall Act,
which would permit the cross-ownership of banking and securities
companies. Other pending legislation would eliminate the savings
and loan industry altogether by requiring thrifts to convert into
commercial banks over a period of time. Additionally, the
interaction between the banking and insurance industries remains
controversial.
As a result of the foregoing factors, uncertainty exists
regarding the future of banking not only in South Florida, but in
the country generally. As competition in the banking industry
continues to grow and alliances are formed in the financial
services industry, Capital Bank's earnings may be adversely
affected in the future. There can be no assurance that Capital
Bank will continue to successfully compete in the South Florida
market.
Asset Quality and Allowances for Loan Losses and Bad Debts
The success of bank holding companies, such as the Company,
depends to a significant extent upon the quality of their loans and
other assets. The Company's ratios of non-performing loans and
advances to total loans and advances and non-performing assets to
total loans and advances were .82% and 1.72%, respectively, at
September 30, 1995. The Company's determination of the adequacy of
its allowances for loan losses and bad debts is based on an
evaluation of the risk characteristics of its loan and receivables
portfolios, general past loss experience, the quality of specific
loans, advances and receivables, the level of non-accruing assets,
the value of underlying collateral, current economic conditions,
volume growth of the portfolios and other relevant factors. The
Company believes that its allowances for loan losses and bad debts
at September 30, 1995 were adequate. However, if delinquency
levels were to increase as a result of adverse general economic
conditions in the Company's markets or for any other reason, this
may no longer be true. There can be no assurances that the
allowances will be adequate to cover losses or that significant
increases to the allowances will not be required in the future if
general economic conditions should decline. The need to make
additional provisions for the allowance for loan losses or the
allowance for bad debts could adversely affect the Company's
results of operations.
Potential Impact of Changes in Interest Rates
The Company's profitability is dependent to a large extent on
its net interest income, which is the difference between its
interest income on interest-earning assets, such as loans, and its
interest expense on interest-bearing liabilities, such as deposits.
Financial institutions, including the Company, will continue to be
affected by changes in general interest rate levels and by other
economic factors. Fluctuations in interest rates are not
predictable or controllable. Interest rate risk also arises from
mismatches between repricing or maturity characteristics of assets
and liabilities. The Company has structured its assets and
liabilities in an effort to mitigate the impact of changes in
interest rates, although there can be no assurances of the
Company's ability to continue to achieve existing levels of net
interest income.
Supervision and Regulation
Bank holding companies and banks operate in a highly regulated
environment and are subject to supervision and examination by both
federal and state bank regulatory agencies. The Company is subject
to the Bank Holding Company Act of 1956, as amended (the "Bank
Holding Company Act"), and to regulation and supervision by the
FRB. Capital Bank, as a state chartered commercial bank, is
subject to the regulation and supervision of the FDIC and the FDBF.
Federal and state laws and regulations govern matters including the
regulation of certain debt obligations, changes in control,
maintenance of adequate capital for general business operations and
the financial condition of a financial institution, permissible
types, amounts and terms of loans and investments, the level of
reserves against deposits, restrictions on dividend payments,
establishment and closing of branch offices, and the maximum rate
of interest that may be charged. The FRB possesses cease and
desist powers over bank holding companies to prevent or remedy
unsafe or unsound practices or violations of law. The FDBF and
FDIC have similar enforcement powers with respect to Florida-
chartered banks. These and other restrictions limit the manner in
which the Company and Capital Bank may conduct business and obtain
financing. Furthermore, the commercial banking business is
affected not only by general economic conditions, but also by the
monetary policies of the FRB. Changes in monetary or legislative
policies may affect the interest rates Capital Bank offers to
attract deposits and the interest rates it may charge on its loans.
These monetary policies have had, and are expected to continue to
have, significant effects on the operating results of commercial
banks, including Capital Bank.
Pending Litigation
On February 8, 1995, certain shareholders of the Company
commenced a derivative action against, among others, the Company,
Daniel M. Holtz, the Chairman of the Board, President and Chief
Executive Officer of the Company, Fana Holtz, the Vice Chairman of
the Board, Javier Holtz, a director of Capital Bank, and Abel
Holtz, the former chairman of the Board, which complaint was
subsequently amended (the "Derivative Action"). Through the
Derivative Action, the plaintiffs have alleged that the defendants
engaged in a series of illegal activities causing harm to the
Company and Capital Bank, including the settlement of a sexual
harassment claim, the payment of excessive compensation and
separation payments and the misappropriation of Capital Bank funds
for personal uses. The plaintiffs have also alleged that such
individuals engaged in a series of activities designed to
improperly increase or maintain their interest in, and control of,
the Company, including the unlawful use of proxies, the prevention
of investigations and shareholder meetings, the unlawful alteration
of the composition of the Company's Board of Directors and the
failure to obtain approval for a change in control. The Board of
Directors of the Company established an independent committee to
investigate the allegations contained in the Derivative Action and
to hire independent legal counsel. Thereafter, the plaintiffs
alleged that the independent committee appointed by the Board to
investigate the allegations of the shareholders in the Derivative
Action is not independent because members were invalidly elected by
the Board and because such members knew or should have known about
the alleged illegal proxy solicitation and alleged fraudulent
actions by the other defendants. The plaintiffs are seeking, on
behalf of the Company, monetary damages, certain injunctive relief
and the return of certain shares from the defendants other than the
Company.
Also on February 8, 1995, a shareholder of the Company
commenced an action against, among others, the Company, Daniel M.
Holtz, Fana Holtz and Abel Holtz, alleging that the defendants,
other than the Company, breached fiduciary duties owed to him by,
among other things, improperly using proxies to vote shares of the
Company to engage in improper activity or to promote their personal
interest to the detriment of the plaintiff. In support of the
complaint, the plaintiff has asserted many of the same allegations
contained in the Derivative Action. Thereafter, the plaintiff
filed an amended complaint pursuant to which an additional
plaintiff was added and all the existing and certain former
directors of the Company were added as defendants. The amended
complaint alleges that certain of the defendants unlawfully
solicited proxies for a shareholders' meeting and that the actions
taken at this meeting, including the reduction in the size of the
Board, were invalid. The amended complaint also sought a court
order directing the Company to hold a shareholders' meeting on or
before May 28, 1995, to elect a board of directors. Through the
amended complaint, the plaintiffs are seeking monetary damages and
the termination of certain proxies and injunctive relief. The
plaintiffs have not indicated that they are seeking any relief from
the Company.
The Company does not believe that the outcome of the foregoing
litigations will have a material adverse effect on the Company's
financial condition or results of operations.
Voting Control and Control Application
As of August 31, 1995, Daniel Holtz, Chairman of the Board,
President and Chief Executive Officer of the Company, Fana Holtz,
the Vice Chairman of the Board, and Javier Holtz, a director of
Capital Bank, owned and/or had the power to vote, approximately 7%,
42% and 3% (52% in the aggregate), respectively, of the Company's
Common Stock (including shares of Common Stock subject to options
exercisable by such individuals within 60 days), none of which
shares are being offered for sale hereunder. As a result of
discussions with the FDBF, Fana Holtz, Daniel Holtz and Javier
Holtz have advised the Company that they, both individually and as
a group, have voluntarily filed an application to acquire and
maintain a controlling interest in the Company. They have also
advised the Company that they do not believe such an application is
legally required, but that they have filed to resolve outstanding
issues concerning their relationships with the Company and Capital
Bank. Fana Holtz, Daniel Holtz and Javier Holtz are also having
discussions with the FRB regarding these issues. The plaintiffs in
the above-described litigations have recently filed a Notice of
Intent to Appear and Petition for a Formal Administrative Hearing
with the FDBF in connection with the disposition of the
application. It cannot presently be determined what effect, if
any, this action and these discussions will have on the Company.
Certain Potential Anti-Takeover Provisions; Continuing Insider
Control of the Company
Certain provisions of the Company's Articles of Incorporation,
as amended, could delay or frustrate the removal of incumbent
directors and could make a merger, tender offer or proxy contest
involving the Company more difficult, even if such events could be
perceived as beneficial to the interests of the Company's
shareholders. In particular, the Company's Articles of
Incorporation provide that the affirmative vote of the holders of
not less than two-thirds of the outstanding Common Stock is
required for (i) the approval of any merger or consolidation of the
Company with or into another company; (ii) the approval of any
sale, lease or other disposition of all or substantially all of the
assets of the Company; or (iii) the removal of any director, or the
entire Board of Directors, with or without cause. Furthermore,
certain provisions of state and federal law may also have the
effect of discouraging or prohibiting a future takeover attempt in
which shareholders of the Company might otherwise receive a
substantial premium for their shares over then-current market
prices. Current directors and executive officers of the Company
and Capital Bank held approximately 60% of the total voting power
of the Company's outstanding voting stock as of August 31, 1995
(not including shares of Common Stock underlying options
exercisable by such individuals within 60 days). This voting
control will not be impacted by the sale of the Shares by the
Selling Shareholders.
Ability to Make Dividend Payments
In the past, the Company has paid regular quarterly dividends
on its Common Stock. However, because the Company's business
operations are conducted primarily through Capital Bank and Capital
Factors, the Company's ability to pay dividends is directly
dependent on the dividends paid by Capital Bank to the Company.
The ability of Capital Bank to pay dividends is subject to its
continuing profitable operations and limitations on the aggregate
amount of cash dividends that it can pay. There can be no
assurance that Capital Bank's future earnings will support
continued dividend payments to the Company.
Limited Trading Market for Common Stock and Potential Volatility of
Stock Price
The Company only began listing the Common Stock on Nasdaq
National Market on July 27, 1995 and, therefore, there is currently
a limited trading market. There can be no assurance that an active
and regular trading market for the Common Stock will develop or
that if developed, it will be sustained. The market price of the
Common Stock could be subject to significant fluctuation in
response to the Company's operating results and other factors,
including the status of government regulation and factors affecting
the banking industry generally.
USE OF PROCEEDS
The Company will receive no proceeds from the sale of any of
or all of the Shares of Common Stock being offered by the Selling
Shareholders hereunder. The Company will, however, pay all of the
expenses, estimated to be approximately $26,490, in connection with
this offering, other than underwriting commissions and discounts
and fees and expenses of counsel to the Selling Shareholders.
SELLING SHAREHOLDERS
The Shares of Common Stock offered hereby are owned by the
Selling Shareholders and were acquired pursuant to a Purchase
Agreement, dated July 27, 1995, by and among the Company, Capital
Bank and the Selling Shareholders (the "Purchase Agreement"). The
Company has been advised by the Selling Shareholders that none of
the Selling Shareholders, nor any of their executive officers,
directors or majority shareholders, has ever held a position or
office, or has had any material relationship with, the Company.
The following table sets forth certain information with respect to
the ownership of the Common Stock by each Selling Shareholder.
<TABLE>
<CAPTION>
<S> <C> <C>
Number of Number of
Shares Shares
Name and Address of Owned Prior to Offered
Selling Shareholder Offering Hereby
Keefe Partners L.P.(2) 117,000 96,700
c/o Keefe Managers, Inc.
375 Park Avenue
New York, New York 10152
Rainbow Partners L.P.(3) 2,400 800
c/o Rainbow Managers, LLC
375 Park Avenue
New York, New York 10152
Keefe Offshore Fund Ltd.(4) 16,800 13,800
c/o Keefe Managers, Inc.
375 Park Avenue
New York, New York 10152
GAM Equity (No. 10) Inc.(5) 10,300 8,700
c/o Keefe Managers, Inc.
375 Park Avenue
New York, New York 10152
(continued)
<S> <C> <C>
Percent of
Shares of Ownership of
Common Stock Shares
Name and Address of Held Prior to of Common Stock
Selling Shareholder Offering After Offering(1)
Shares Percentage
Keefe Partners L.P.(2) 1.6% 20,300 *
c/o Keefe Managers, Inc.
375 Park Avenue
New York, New York 10152
Rainbow Partners L.P.(3) * 1,600 *
c/o Rainbow Managers, LLC
375 Park Avenue
New York, New York 10152
Keefe Offshore Fund Ltd.(4) * 3,000 *
c/o Keefe Managers, Inc.
375 Park Avenue
New York, New York 10152
GAM Equity (No. 10) Inc.(5) * 1,600 *
c/o Keefe Managers, Inc.
375 Park Avenue
New York, New York 10152
</TABLE>
* Less than 1%.
(1) Assumes all Shares registered hereunder have been sold.
Because the Selling Shareholders may sell all, some or none of
their Shares, no actual estimate can be made of the aggregate
number of Shares that are to be offered hereby or the number
or percentage of Shares that each Selling Shareholder will own
upon completion of the offering to which this Prospectus
relates. The Selling Shareholders have advised the Company
that additional shares of Common Stock owned by the Selling
Shareholders may be sold, from time to time, through available
means pursuant to applicable securities laws. The Company has
also been advised that, subject to applicable securities laws,
the Selling Shareholders may purchase, from time to time,
additional shares of Common Stock.
(2) Keefe Partners L.P. is a Delaware limited partnership. Keefe
Managers, Inc. ("Keefe Managers"), a registered investment
advisor, serves as general partner and manager of such entity.
(3) Rainbow Partners L.P. is a Delaware limited partnership.
Rainbow Managers, LLC ("Rainbow Managers"), a registered
investment advisor, serves as general partner and manager of
such entity. Rainbow Managers and Keefe Managers are under
common control.
(4) Keefe Offshore Fund Ltd. is a Cayman Islands company. Keefe
Managers serves as investment advisor to such entity. The
sole shareholder of Keefe Managers is also the sole owner of
the voting securities of such entity.
(5) GAM Equity (No. 10) Inc. is an international business company
organized under the laws of the British Virgin Islands. Keefe
Managers serves as investment advisor to an advisory account
of such entity.
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that they
may from time to time sell all or part of the Shares in one or more
transactions in the over-the-counter market, on the Nasdaq National
Market (or any exchange on which the Common Stock may then be
listed), in negotiated transactions, or pursuant to a combination
of such methods of sale. Such shares will be sold at the market
prices prevailing at the time of sale, at prices related to such
market prices or at negotiated prices. The Selling Shareholders
may effect such transactions by selling the Shares to or through
broker-dealers, and such broker-dealers may receive compensation in
the form of underwriting discounts, concessions or commissions from
the Selling Shareholders or purchasers of the Shares, or both, for
whom they may act as agent (which compensation may be in excess of
customary commissions). In connection with such sales, the Selling
Shareholders and any broker-dealers or agents participating in such
sales may be deemed to be underwriters as that term is defined
under the Securities Act. Neither the Company nor the Selling
Shareholders can presently estimate the amount of commissions or
discounts, if any, that will be paid by the Selling Shareholders in
connection with their sale of the Shares from time to time. In
addition to sales under the Registration Statement, Shares may be
sold through an applicable exemption from registration, including
without limitation, pursuant to Rule 144 promulgated under the
Securities Act.
Under the securities laws of certain states, the Shares may be
sold in such states only through registered or licensed broker-
dealers. In addition, in certain states the Shares may not be sold
unless the Shares have been registered or qualified for sale in
such state or an exemption from registration or qualification is
available.
The Company will pay all of the expenses, estimated to be
approximately $26,490, in connection with this offering, other than
underwriting commissions and discounts and fees and expenses of
counsel to the Selling Shareholders. The Company has agreed to
indemnify the Selling Shareholders, their directors, officers,
agents and representatives, and any underwriters, against certain
liabilities, including liabilities under the Securities Act. The
Selling Shareholders have also agreed to indemnify the Company, its
directors, officers, agents and representatives against certain
liabilities, including liabilities under the Securities Act. The
Shares are being registered at the request of the Selling
Shareholders pursuant to the Purchase Agreement. The Company will
not receive any of the proceeds from the sale of any of the Shares
by the Selling Shareholders.
The Company has been advised by the Selling Shareholders that
they will comply with Rule 10b-6 promulgated under the Exchange
Act, in connection with all resales of the Shares offered hereby.
The Company has also been advised by the Selling Shareholders that
they had not, as of November , 1995, entered into any arrangement
with a broker-dealer for the sale of the Shares through a block
trade, special offering, exchange distribution or secondary
distribution.
DESCRIPTION OF COMMON STOCK
The Company's Articles of Incorporation, as amended, authorize
the issuance of 20 million shares of Common Stock. The Company
declared a three-for-two stock split in the form of a stock
dividend for shareholders of record on June 22, 1995. As of
October 31, 1995, and after giving effect to the foregoing, there
were 7,377,431 shares of Common Stock issued and outstanding.
Options to purchase 176,717 and 1,021,707 shares of Common Stock
are outstanding under the Company's 1982 Stock Option Plan and 1992
Stock Option Plan, respectively.
Holders of Common Stock are entitled to one vote for each
share of Common Stock held of record upon all matters presented for
action by shareholders. Additionally, holders of Common Stock are
entitled to receive such dividends as may be declared by the
Company's Board of Directors. The Board of Directors may, from
time to time, declare, and the Company may pay, dividends and other
distributions with respect to its outstanding shares of Common
Stock in cash, property or shares of Common Stock which are legally
available therefor. Upon liquidation or dissolution of the
Company, all such holders are entitled to receive a pro rata
portion of the assets of the Company legally available for
distribution to its shareholders, if any, after the payment of all
debts and liabilities of the Company.
The Common Stock has no preemptive rights and no subscription,
redemption or conversion privileges. The Common Stock does not
have cumulative voting rights, which means that the holders of a
plurality of the outstanding shares of Common Stock can elect all
members of the Company's Board of Directors. A plurality or
majority vote is also sufficient for other actions that require the
vote or concurrence of shareholders. All of the outstanding shares
of Common Stock are fully paid and nonassessable.
The following table reflects the annual dividends per share of
the Common Stock that have been declared and paid during 1993 and
1994, retroactively adjusted to reflect the three for two stock
split in the form of a stock dividend for shareholders of record on
June 22, 1995. Dividends were paid quarterly in equal amounts.
[CAPTION]
<TABLE>
<S> <C>
Year Amount Per Share
1993 33 1/3
1994 33 1/3
</TABLE>
The Company anticipates that it will continue payment of
regular dividends to its shareholders and has continued to pay
dividends in 1995 at the same rate. There can be no assurance,
however, as to the payment of such dividends in the future because
such payment is dependent upon the earnings and financial condition
of the Company, the need for future capital and other factors,
including, without limitation, satisfaction of regulatory
requirements.
The Common Stock is listed on the Nasdaq National Market under
the symbol "CBCP." The transfer agent for the Common Stock is
Chemical Mellon Shareholder Services, Four Station Square, Third
Floor, Pittsburgh, Pennsylvania 15219.
LEGAL MATTERS
The validity of the Shares being offered hereby is being
passed upon for the Company by Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, P.A., 1221 Brickell Avenue, Miami, Florida 33131.
EXPERTS
The financial statements of the Company incorporated in this
prospectus by reference from the Company's Annual Report on Form
10-K for the year ended December 31, 1994, have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon
their authority as experts in accounting and auditing.
No dealer, salesperson or any other person has been authorized
to give any information or to make any representation other than
those contained in this Prospectus in connection with the offering
made hereby, and, if given or made, such information or
representations must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy any securities other than
the registered securities to which it relates, or an offer to sell
or solicitation of an offer to buy such securities in any
jurisdiction where, or to any person to whom, it is unlawful to
make such an offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change
in the affairs of the Company since the date hereof or that the
information contained herein is correct as of any time subsequent
to the date of this Prospectus.
120,000 Shares
CAPITAL BANCORP
Common Stock
PROSPECTUS
November 13, 1995
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Company will pay all of the expenses incurred in
connection with the offering described in this registration
statement, other than underwriting commissions and discounts and
counsel fees and expenses of counsel of the Selling Shareholders.
Such expenses are estimated to be as follows:
[CAPTION]
<TABLE>
<S> <C>
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . . . .$ 1,490
Legal fees and expenses. . . . . . . . . . . . . . 10,000
Accounting fees and expenses . . . . . . . . . . . 10,000
Miscellaneous. . . . . . . . . . . . . . . . . . . 5,000
Total . . . . . . . . . . . . . . . . . . . .$26,490
</TABLE>
Item 15. Indemnification of Directors and Officers.
The Company's Bylaws provide that, to the extent permitted
by Florida law, the Company has the power to indemnify any person
against whom an action is brought or threatened because that person
is or was a director or officer of the Company for expenses
(including attorney's fees), judgments or other amounts paid in
settlement or otherwise incurred by him or her in connection with
such action.
The provisions of the Florida Business Corporation Act
that authorize indemnification do not eliminate the duty of care of
a director, and in appropriate circumstances, equitable remedies
such as injunctive or other forms of nonmonetary relief will remain
available under Florida law. In addition, each director will
continue to be subject to liability for (a) violations of criminal
laws, unless the director had reasonable cause to believe his or
her conduct was lawful or had no reasonable cause to believe his or
her conduct was unlawful, (b) deriving an improper personal benefit
from a transaction, (c) voting for or assenting to an unlawful
distribution and (d) willful misconduct or conscious disregard for
the best interests of the Company in a proceeding by or in the
right of the Company to procure a judgment in its favor or in a
proceeding by or in the right of a shareholder. The statute does
not affect a director's responsibilities under any other law, such
as the federal securities laws. The effect of the foregoing is to
authorize the Company to indemnify its officers and directors for
any claim arising against such persons in their official capacities
if such person acted in good faith and in a manner that he or she
reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct
was unlawful.
At present, there is pending litigation involving
directors and officers of the Company. Indemnification may be
sought by officers and directors with respect to such litigation.
Pursuant to the Purchase Agreement filed as Exhibit 2.1 to
this Registration Statement, each of the Company and the Selling
Shareholders has agreed to indemnify each other and their
respective directors, officers, agents and representatives (and
with respect to the indemnification of the Selling Shareholders,
any underwriters) against certain civil liabilities that may be
incurred in connection with this offering, including certain
liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers or
controlling persons of the Company, pursuant to the foregoing
provisions or otherwise, the Company has been advised that, in the
opinion of the 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 Company of
expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered
hereunder, the Company 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 16. Exhibits
[CAPTION]
<TABLE>
<S> <C>
Exhibit
Number Description
2.1 Stock Purchase Agreement, dated July 27, 1995, by and
among the Registrant, Capital Bank and the Selling
Shareholders*
3.1 Articles of Incorporation, as amended(1)
3.2 Amended and Restated Bylaws(2)
5.1 Opinion of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A.*
23.1 Consent of Greenberg, Traurig, Hoffman, Lipoff, Rosen &
Quentel, P.A. (contained in Exhibit 5.1 hereto).*
23.2 Consent of Deloitte & Touche LLP.*
24.1 Power of Attorney (contained on signature page)
</TABLE>
* Filed herewith.
(1) Incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement (Registration Number 0-26080) on Form
8-A as filed with the Securities and Exchange Commission on
July 17, 1995.
(2) Incorporated by reference to Exhibit 3.2 filed with the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994, filed with the Securities and Exchange
Commission on March 31, 1995.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement to include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) 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 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.
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 for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Miami, State of Florida, on this 26th day of October, 1995.
CAPITAL BANCORP
By: /s/ DANIEL M. HOLTZ
Daniel M. Holtz, Chairman of
the Board, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints each of
Daniel M. Holtz and Lucious T. Harris, respectively, his or her
true and lawful attorney-in-fact, with full powers of substitution
and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all
amendments, including any post-effective amendments, to this
Registration Statement, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming
all that said attorney-in-fact or his substitutes may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
[CAPTION]
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ DANIEL M. HOLTZ Chairman of the October 26, 1995
DANIEL M. HOLTZ Board, President and
Chief Executive Officer
(principal executive officer)
/s/ FANA HOLTZ Vice Chairman of October 26, 1995
FANA HOLTZ the Board
/s/ LUCIOUS T. HARRIS Treasurer October 26, 1995
LUCIOUS T. HARRIS (principal financial
and accounting
officer)
/s/ CRAIG L. PLATT Director October 26, 1995
CRAIG L. PLATT
/s/ JEFFREY H. PORTER Director October 26, 1995
JEFFREY H. PORTER
/s/ LEON J. SIMKINS Director October 31, 1995
LEON J. SIMKINS
/s/ RUSSELL W. GALBUT Director October 26, 1995
RUSSELL W. GALBUT
/s/ HUGH CULVERHOUSE, JR. Director October 26, 1995
HUGH CULVERHOUSE, JR.
EXHIBIT INDEX
<CAPTION>
</TABLE>
<TABLE>
<S> <C> <C>
Number Description Page
2.1 Stock Purchase Agreement, dated July 27, 1995,
by and among the Registrant, Capital Bank and
the Selling Shareholders
5.1 Opinion of Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, P.A.
23.1 Consent of Greenberg, Traurig, Hoffman, Lipoff,
Rosen & Quentel, P.A. (contained in Exhibit 5.1
hereto).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (contained on signature page)
EXHIBIT 2.1
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "Agreement"), made and
entered into as of the 27th day of July, 1995 by and between
Capital Bank, a Florida banking corporation (the "Seller"), Capital
Bancorp, a bank holding company organized and existing under the
laws of the State of Florida ("Bancorp"), Keefe Partners L.P., a
Delaware limited partnership, Rainbow Partners L.P., a Delaware
limited partnership, Keefe Offshore Fund Ltd., a Cayman Islands
company, and GAM Equity (No. 10) Inc., an international business
company organized under the laws of the British Virgin Islands
(each, individually, a "Purchaser" and collectively, the
"Purchasers");
W I T N E S S E T H:
WHEREAS, the Seller owns 120,000 of the issued and outstanding
shares (the "Shares") of common stock, par value $1.00 per share
(the "Common Stock"), of Bancorp and desires to sell all of the
Shares to the Purchasers as set forth in this Agreement, and each
Purchaser desires to purchase the Shares as set forth herein and on
Schedule 1.1 hereto;
NOW, THEREFORE, in consideration of the premises and the
respective mutual agreements, covenants and representations herein
contained, the parties hereto hereby agree as follows:
1. SHARES BEING TRANSFERRED; PRICE; PAYMENT.
1.1 SHARES BEING TRANSFERRED. The Seller hereby sells,
transfers, conveys and delivers to each Purchaser, and each
Purchaser hereby purchases and accepts delivery of, all of the
Shares in accordance with Schedule 1.1 hereof. The Seller is
delivering herewith to each Purchaser in accordance with
Schedule 1.1 the certificates representing the Shares, either duly
endorsed or together with appropriate stock powers separate from
the certificates, in form and substance satisfactory to the
Purchaser.
1.2 PURCHASE PRICE; PAYMENT. The aggregate purchase
price being paid by the Purchasers to the Seller for the Shares
simultaneously herewith is Two Million One Hundred and Thirty
Thousand Dollars ($2,130,000) (the "Purchase Price"), or $17.75 per
Share, allocated among the Purchasers as set forth on Schedule 1.1
hereto, which amount is being paid by wire transfer payable to and
pursuant to the instructions of Seller.
2. REPRESENTATIONS AND WARRANTIES OF SELLER AND BANCORP. In
order to induce the Purchasers to enter into this Agreement and to
consummate the transactions contemplated hereby, the Seller and
Bancorp hereby jointly and severally represent and warrant to the
Purchasers, each of such representations and warranties to survive
this Agreement, that:
(a) Seller is a banking corporation duly organized,
validly existing and in good standing under the laws of Florida.
Seller is an "insured bank" as defined in the Federal Deposit
Insurance Act and applicable regulations thereunder. Bancorp is a
bank holding company duly organized, validly existing and in good
standing under the laws of Florida. Each of Seller and Bancorp has
all requisite corporate power, franchises, licenses and authority
to own its properties and assets and to carry on its business as it
is presently being conducted.
(b) Each of Seller and Bancorp has full power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. This Agreement constitutes
a valid and binding obligation of each of Seller and Bancorp
enforceable against each in accordance with its terms, except as
may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally or the availability of
equitable remedies.
(c) Simultaneous to the execution of this Agreement,
Seller is transferring and conveying, and each Purchaser is
acquiring, good and valid title to the Shares being purchased by
such Purchaser, free and clear of any and all liens, claims and/or
encumbrances ("Liens") and each Purchaser shall have full and
unconditional voting rights with respect to the Shares being
purchased by such Purchaser. There are no outstanding options,
warrants, rights, calls, subscriptions, commitments, conversion
rights, plans, contracts or other agreements of any character
whatsoever which provide for the purchase, issuance, sale or
transfer of any of the Shares. Bancorp's Common Stock has been
approved for listing on the NASDAQ National Market System.
(d) The execution, delivery and performance of this
Agreement by the Seller and Bancorp and the consummation by them of
the transactions contemplated hereby, will not violate any law,
ordinance, regulation, order, judgment or decree applicable to any
of them, or conflict with, result in a breach of or constitute a
default under the organizational or charter documents of Bancorp,
or any indenture, mortgage, lease, agreement, contract or
instrument to which any of the Seller or Bancorp is a party or by
which any of the Seller or Bancorp or any of their respective
properties may be bound, or result in or require the creation of
any mortgage, lien or security interest with respect to any
properties of any of the Seller or Bancorp.
(e) None of the information in the Reports, as defined
in Section 3(e) hereof, did at the time such Reports were filed
with the Securities and Exchange Commission or delivered to
shareholders, as applicable, contain any 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, not misleading. There has been no
material adverse change in the business or financial condition of
Bancorp since the filing of its Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995.
3. REPRESENTATIONS AND WARRANTIES OF PURCHASER. In order to
induce the Seller and Bancorp to enter into this Agreement and to
consummate the transactions contemplated hereby, each of the
Purchasers hereby represents and warrants (with respect to itself
and its participation in this transaction) to the Seller and
Bancorp, each of such representations and warranties to survive the
closing, that:
(a) The Purchaser is a corporation or partnership duly
organized, validly existing and in good standing under the laws of
its jurisdiction of incorporation or organization.
(b) The Purchaser has full power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The party executing this
Agreement on behalf of the Purchaser is duly authorized to execute
and deliver this Agreement on behalf of such Purchaser. This
Agreement constitutes a valid and binding obligation of the
Purchaser enforceable in accordance with its terms, except as may
be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally or the availability of
equitable remedies.
(c) The execution, delivery and performance of this
Agreement by the Purchaser, and the consummation by it of the
transactions contemplated hereby, will not violate any law,
ordinance, regulation, order, judgment or decree applicable to it,
or conflict with, result in a breach of or constitute a default
under the organizational or charter documents of such Purchaser, or
any indenture, mortgage, lease, agreement, contract or instrument
to which the Purchaser is a party or by which the Purchaser or any
of its properties may be bound, or result in or require the
creation of any mortgage, lien or security interest with respect to
any properties of the Purchaser.
(d) The Purchaser is an "accredited investor" and is a
sophisticated investor by virtue of its education, training and/or
numerous prior investments made on its own behalf or through
entities which it, alone or with others, control. The Purchaser is
knowledgeable and experienced in financial and business matters,
especially in investments in financial institutions and which have
risks similar to those which may be encountered by Bancorp. The
Purchaser is capable of evaluating the merits and risks of an
investment in Bancorp.
(e) A representative of the Purchaser has reviewed all
such information as it deems necessary in making a decision to
purchase the Shares, and has had an opportunity to ask such
questions of and receive such information from the Seller and
Bancorp as it has deemed appropriate. Among other things, the
Purchaser has received and reviewed information concerning the
history, activities, management, operations, financial condition,
contingent liabilities and risk factors of Bancorp and its
subsidiaries including, without limitation, the following reports
filed by Bancorp with the Securities and Exchange Commission:
(i) the Corporation's Quarterly Reports on Form
10-Q for the quarters ended March 31, 1994,
June 30, 1994, September 30, 1994 and March
31, 1995;
(ii) the Corporation's Annual Report on Form 10-K
for the years ended December 31, 1992,
December 31, 1993 and December 31, 1994; and
(iii) the Corporation's 1994 Annual Report to
Shareholders (collectively, the "Reports").
(f) The Purchaser understands that the Shares have not
been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or related laws and regulations or any other
applicable securities laws of any other jurisdiction (collectively,
the "Securities Laws"). The Purchaser understands that, except as
expressly provided herein, it has no rights whatsoever to request,
and that no party is under any obligation whatsoever to furnish, a
registration of the Shares under the Securities Laws.
(g) The shares of Common Stock that the Purchaser is
acquiring are being acquired solely for its account and are not
being purchased with a view to, or for resale in connection with,
any distribution within the meaning of the Securities Act of 1933,
as amended, or any other applicable Securities Laws. The Purchaser
will not resell or offer to resell any of the Shares except in
compliance with all applicable Securities Laws.
(h) The Purchaser understands that the Shares to be
purchased by it are "restricted securities" as that term is defined
in Rule 144 under the Securities Act of 1933, as amended, and that
any certificate(s) representing the Shares will bear restrictive
legends thereon or to the effect as follows:
"The shares represented by this certificate
(the "Shares") have been acquired without
being registered under the Securities Act of
1933, as amended (the "Act"), or any other
applicable securities laws, and are restricted
securities as that term is defined under Rule
144 promulgated under the Act. These Shares
may not be sold, pledged, transferred,
distributed or otherwise disposed of in any
manner ("Transfer") unless they are registered
under the Act and any applicable securities
laws, or unless the request for Transfer is
accompanied by a favorable opinion of counsel,
reasonably satisfactory to the Issuer, stating
that the Transfer will not result in a
violation of the Act or any applicable
securities laws."
(i) Seller is paying all brokerage fees, commissions or
finder's fees due in connection with the transactions contemplated
hereby, none of which shall be the obligation of the Purchasers.
4. INDEMNIFICATION. The parties hereto agree to indemnify
and hold harmless the other parties and any of their affiliates or
agents from and against all liabilities, damages, losses, costs and
expenses (including reasonable attorneys' fees) which it or they
may incur by reason of any breach of the representations and
warranties made herein.
5. REGISTRATION RIGHTS.
(a) At any time during the period commencing one month
from the date hereof and ending on the earlier of (i) the date that
all Shares have been sold by the Purchasers or (ii) the earlier of
the date that all Shares then held by the Purchasers are freely
transferable by the Purchasers under Rule 144(k) under the
Securities Act (not to exceed three years from the date hereof) or
the date after the second anniversary hereof that the Shares then
held by Purchasers constitute in the aggregate 1% or less of the
issued and outstanding shares of Common Stock of Bancorp (the
"Registration Period"), the Purchasers shall have the right to
request (a "Registration Request") by delivery of written notice to
Bancorp and Seller as provided in Section 7 hereof that Bancorp
effect the registration under the Securities Act, of any or all of
the Shares (the Shares requested to be so registered are
hereinafter referred to as the "Requested Registration Shares"),
provided that such request shall cover at least 60,000 Shares,
which number shall be subject to adjustment to reflect any stock
dividends, stock splits, recapitalizations or other similar
transactions. In such event, Bancorp shall use its best efforts to
cause the Requested Registration Shares to be registered under the
Securities Act and to promptly effect and comply with all such
qualifications, compliances and requirements as may be necessary to
permit the sale or other transfer of such Requested Registration
Shares in the manner described in such Registration Request,
including, without limitation, qualifications under the applicable
Blue Sky or other state securities laws (provided, that Bancorp
shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of
process in any state); provided, however, that (i) Bancorp shall
not be obligated to file and cause to become effective more than
one registration statement in which Shares are sold pursuant to
this subsection (a) (it being understood that (i) Bancorp will not
withdraw any such registration statement if Purchasers exercise
their rights to a piggyback registration under Section 5(e) until
the Section 5(e) registration statement becomes effective or (ii)
if Bancorp does withdraw the registration statement under this
section after Purchasers exercise their piggyback rights prior to
the effectiveness of the registration statement under Section 5(e)
hereof and the Section 5(e) registration statement does not become
effective, then Bancorp will file another registration statement
pursuant to Section 5(a)) and (ii) Bancorp shall not be obligated
to conduct a special audit of its financial statements, unless such
audit shall have been requested by the Securities and Exchange
Commission, or in any other case unless the Purchasers undertake to
pay the costs associated with such audit.
(b) Bancorp will pay all expenses necessary to effect
under the Securities Act any registration statements, amendments or
supplements filed pursuant to this Section 5 (other than
underwriters' discounts and commissions and brokerage commission
and fees, if any, payable with respect to the Requested
Registration Shares or a piggyback registration pursuant to
Section 5(e), and other than legal fees incurred by the
Purchasers), including, without limitation, printing expenses, fees
of the Securities and Exchange Commission and the National
Association of Securities Dealers, Inc., expenses of compliance
with Blue Sky and other state securities laws, and accounting and
legal fees and expenses.
(c) In connection with the filing of a registration
statement pursuant hereto Bancorp shall:
(i) notify Purchasers as to the filing thereof
and of all amendments thereto filed prior to the effective
date of said registration statement;
(ii) notify Purchasers, promptly after it shall
have received notice thereof, of the time when the
registration statement becomes effective or any supplement to
any prospectus forming a part of the registration statement
has been filed;
(iii) prepare and file promptly without expense to
Purchasers any necessary amendment or supplement to such
registration statement or prospectus as may be necessary to
comply with section 10(a)(3) of the Securities Act or
advisable in connection with the proposed distribution of
Shares by Purchasers (but only during such period as Bancorp
is required to keep the registration statement effective);
(iv) notify Purchasers of any stop order
suspending the effectiveness of the registration statement and
use its reasonable best efforts to remove such stop order;
(v) undertake to keep said registration statement
and prospectus (other than a registration statement under
Section 5(e)) effective for a period not to exceed the
Registration Period, as provided herein; and
(vi) furnish to Purchasers, as soon as available,
copies of any such registration statement and each preliminary
or final prospectus and any supplement or amendment required
to be prepared pursuant hereto, all in such quantities as
Purchasers may from time to time reasonably request. Upon
written request, Bancorp shall also furnish to Purchasers,
without cost, one set of the exhibits to such registration
statement.
(d) Each Purchaser (severally and not jointly) agrees to
pay the underwriting discounts and commissions, and transfer taxes
with respect to the Shares being registered by such Purchaser
pursuant to this Section 5.
(e) If Bancorp shall at any time during the Registration
Period and while a registration statement with respect to any of
the Shares is filed with the Securities and Exchange Commission,
propose to register any of its securities under the Securities Act
in order to consummate a public offering of any of its securities
in the form of an underwritten offering with respect to which the
managing underwriter requests that none of the Purchasers sell any
of the Shares during a specified period related to such offering,
then each of the Purchasers agrees that, at Bancorp's request (not
to exceed two times), it will not sell any of the Shares for a
period commencing on the effective date of such public offering and
continuing for a period of thirty days thereafter and that it will
enter into a reasonable agreement evidencing the foregoing at
Bancorp or such managing underwriter's request. If Bancorp
requests that any of the Purchasers refrain from selling any of the
Shares as provided above and such Purchaser agrees to comply, then
Bancorp shall give written notice of the proposed registration to
Purchasers. If, within ten days after the giving of such notice,
Purchasers shall request in writing that all or any of the Shares
be included in such proposed registration, Bancorp will also
register such Shares as shall have been so requested in writing by
Purchasers to be registered; provided, however, that:
(i) Bancorp shall not be required to include any
of such Shares if, by reason of such inclusion, Bancorp shall
be required to prepare and file a registration statement on a
form promulgated by the Securities and Exchange Commission
substantially different from that which Bancorp otherwise
would use;
(ii) each of the Purchasers shall agree to have
the Shares being so registered sold to or by the managing
underwriter on terms equivalent to the terms upon which
Bancorp is selling the securities so registered;
(iii) if, at any time after giving such written
notice of its intention to register any of its securities and
prior to the effective date of the registration statement
filed in connection with such registration, Bancorp shall
determine for any reason not to register such securities, at
its sole election, Bancorp may give written notice of such
determination to Purchasers and thereupon shall be relieved of
its obligation to register any Shares in connection with such
registration. (Purchasers shall then be relieved of its
obligation not to sell the Shares); and
(iv) if the managing underwriter in such
underwritten offering shall advise Bancorp that it declines to
include a portion or all of the Shares requested by Purchasers
to be included in the registration statement, then all or the
specified portion of the Shares shall be excluded from such
registration statement. In such event, Bancorp shall give
Purchasers prompt notice of the number of Shares excluded.
(f) (i) Bancorp shall indemnify and hold harmless
each Purchaser and each Purchaser's directors, officers, agents and
representatives, and each person, if any, who controls each
Purchaser, and each underwriter, within the meaning of the
Securities Act, who may purchase from or sell for each Purchaser
any Shares, from and against any and all losses, claims, damages
and liabilities caused by any untrue statement of a material fact
contained in the registration statement filed pursuant to this
Section 5, any preliminary prospectus or final prospectus included
therein, or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
alleged untrue statement or omission or alleged omission in
information furnished or required to be furnished in writing to
Bancorp by each Purchaser or such underwriter expressly for use
therein, which indemnification shall include such person, if any,
who controls any such underwriter within the meaning of the
Securities Act and each officer, director, employee and agent of
such underwriter.
(ii) Each Purchaser (severally and not jointly)
shall indemnify Bancorp, its directors, officers, agents and
representatives and each person, if any, who controls Bancorp
within the meaning of the Securities Act, from and against any
and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material
fact contained in such registration statement, any preliminary
prospectus or final prospectus included therein, or any
amendment or supplement thereto, or caused by any omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but
only insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or alleged untrue statement
or omission in information furnished in writing to Bancorp by
such Purchaser or any such underwriter expressly for use
therein.
(iii) If for any reason the indemnification set
forth above is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
claim, damage, liability or expense referred to therein, then
the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount
paid or payable by the indemnified party as a result of such
loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnified
party and the indemnifying party, as well as any other
relevant equitable considerations.
(g) Purchasers, upon receipt of notice from Bancorp,
upon the occurrence of an event which requires a post-effective
amendment to the registration statement or a supplement to the
prospectus included therein, shall promptly discontinue the sale of
Shares until they have received copies of a supplemented or amended
prospectus from Bancorp, which Bancorp shall provide as soon as
practicable after such notice.
(h) Each of such Purchaser shall provide Bancorp in
writing such information with respect to such Purchaser and the
proposed distribution of Shares as shall be reasonably necessary in
order to assure compliance with applicable federal and state
securities laws.
6. FURTHER ASSURANCES. The Seller and the Purchasers hereby
agree to take any and all actions and to execute and deliver at any
time and from time to time such other documents and instruments as
may reasonably be required to effectuate the transactions
contemplated hereby.
7. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida.
(b) In construing this Agreement, the singular shall be
held to include the plural, the plural shall include the singular,
the use of any gender shall include every other and all genders,
and captions and paragraph headings shall be disregarded. All of
the parties to this Agreement have participated fully in the
negotiation and preparation hereof and, accordingly, this Agreement
shall not be more strictly construed against any one of the parties
hereto.
(c) The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in
this Agreement shall not affect the enforceability of the remaining
portions of this Agreement or any part hereof, all of which are
inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall
be declared invalid, this Agreement shall be construed as if such
invalid word or words, phrase or phrases, sentence or sentences,
clause or clauses, section or sections, or subsection or
subsections had not been inserted.
(d) This Agreement and all provisions hereof, including
the representations and warranties of the parties set forth in this
Agreement, are binding upon and inure to the benefit of the parties
hereto and are also being made for the benefit of successors and
assigns of the parties hereto. Under no circumstances shall the
rights, obligations or remedies of a particular Purchaser
constitute a right, obligation or remedy applicable to any other
Purchaser.
(e) The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the
meaning or interpretation of any provisions of this Agreement.
(f) This Agreement may be executed in any number of
counterparts and by the several parties hereto in separate
counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same
instrument.
(g) This Agreement constitutes the entire agreement
among the parties hereto with respect to the transactions
contemplated hereby and supersedes all prior agreements,
understandings, negotiations and discussions, both written and
oral, among the parties hereto with respect to the subject matter
hereof. This Agreement may not be amended or modified in any way
except by a written instrument executed by all of the parties.
(h) Unless notice to the contrary is given to the
Purchasers, the Seller or Bancorp, as the case may be, all notices,
requests, demands and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly
given when telecopied or by overnight receipted courier service to
the addresses set forth below:
If to Seller: Capital Bank
1221 Brickell Avenue
Miami, Florida 33131
Attn: Daniel M. Holtz, Chairman of the Board,
Chief Executive Officer and President
If to Bancorp: Capital Bancorp
1221 Brickell Avenue
Miami, Florida 33131
Attn: Daniel M. Holtz, Chairman of the Board,
Chief Executive Officer and President
With a copy, in
either case, to: Timothy E. Kish, Esq.
Executive Vice President
and General Counsel
Capital Bank
1221 Brickell Avenue
Miami, Florida 33131
If to any of
the Purchasers: 375 Park Avenue
New York, New York 10152
Attn: Matthew F. Byrnes, President
Keefe Managers, Inc.
With a copy to: Margery Neale, Esq.
Shereff, Friedman, Hoffman & Goodman, LLP
919 Third Avenue
New York, New York 10022-9998
(i) The rights and obligations of any party under this
Agreement may not be assigned or delegated without the express
written consent of the other parties hereto.
IN WITNESS WHEREOF, the parties hereto have each executed and
delivered this Agreement as of the day and year first above
written.
CAPITAL BANK ("Seller")
By:/s/Daniel M. Holtz
Daniel M. Holtz, Chairman of the
Board, Chief Executive Officer
and President
CAPITAL BANCORP ("Bancorp")
By:/s/Daniel M. Holtz
Daniel M. Holtz, Chairman of the
Board, Chief Executive Officer
and President
"Purchasers":
KEEFE PARTNERS L.P.
By: Keefe Managers, Inc., a
General Partner
By:/s/Matthew F. Brynes
RAINBOW PARTNERS L.P.
By: Rainbow Managers, LLC, a
General Partner
By:/s/Matthew F. Brynes
KEEFE OFFSHORE FUND LTD.
By: Keefe Managers, Inc., as
Investment Adviser
By:/s/Matthew F. Brynes
GAM EQUITY (NO. 10) INC.
By: Keefe Managers, Inc., as
Investment Adviser
By:/s/Matthew F. Brynes
SCHEDULE 1.1
<CAPTION>
</TABLE>
<TABLE>
<S> <C> <C>
Number Purchase
of Shares Price
Keefe Partners L.P. 96,700 $1,716,425
Rainbow Partners L.P. 800 $14,200
Keefe Offshore Fund Ltd. 13,800 $244,950
GAM Equity (No. 10) Inc. 8,700 $154,425
</TABLE>
EXHIBIT 5.1
November 13, 1995
Capital Bancorp
1221 Brickell Avenue
Miami, Florida 33131
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Capital Bancorp, a Florida
corporation (the "Company"), in connection with the registration
statement on Form S-3 (the Registration Statement") being filed by
the Company under the Securities Act of 1933, as amended, with
respect to 120,000 shares (the "Shares") of the Company's common
stock, par value $1.00 per share, which may be sold from time to
time by the selling shareholders (the "Selling Shareholders") named
therein. All of the Shares offered by the Selling Shareholders are
issued and outstanding.
In connection with the Registration Statement, we have
examined, considered and relied upon the following documents
(collectively, the "Documents"): the Registration Statement; the
Stock Purchase Agreement, dated July 27, 1995, by and among the
Company, Capital Bank, the wholly-owned subsidiary of the Company,
and the Selling Shareholders; the Company's Articles of
Incorporation, as amended, Amended and Restated Bylaws and
corporate minute book; a certificate of good standing of the
Company issued as of November 3, 1995, by the Secretary of State of
the State of Florida; and such matters of law as we have considered
necessary or appropriate for the expression of the opinions
contained herein.
In rendering the opinions set forth below, we have assumed
without investigation the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, the
conformity to authentic original documents of all documents
submitted to us as copies, and the veracity of the Documents. As
to questions of fact material to the opinions expressed herein, we
have relied upon the representations and warranties of the Company
and the Selling Shareholders made in the Documents.
Based solely upon and subject to the Documents, and subject to
the qualifications set forth below, we are of the opinion that the
Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
Although we have acted as special counsel to the Company in
connection with certain other matters, our engagement is limited to
certain matters about which we have been consulted. Consequently,
there exist matters of a legal nature involving the Company in
which we have not been consulted and have not represented the
Company. This opinion letter is limited to the matters stated
herein and no opinions may be implied or inferred beyond the
matters expressly stated herein. The opinions expressed herein are
given as of this date, and we assume no obligation to update or
supplement our opinions to reflect any facts or circumstances that
may come to our attention or any change in law that may occur or
become effective at a later date.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to us under the
caption "Legal Matters" in the prospectus contained in the
Registration Statement.
Very truly yours,
GREENBERG, TRAURIG, HOFFMAN,
LIPOFF, ROSEN & QUENTEL, P.A.
By:/s/ Robert L. Grossman
Robert L. Grossman
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Capital Bancorp on Form S-3 of our report dated
February 24, 1995 appearing in the Annual Report on Form 10-K of
Capital Bancorp for the year ended December 31, 1994 and to the
reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
Deloitte & Touche LLP
Certified Public Accountants
Miami, Florida
November 10, 1995
