As filed with the Securities and Exchange Commission on
March 22, 1996
Registration No. 33-64157
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
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 Organization) Identification No.)
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 and
Lipoff, Rosen & Quentel, P.A. General Counsel
1221 Brickell Avenue Capital Bancorp
Miami, Florida 33131 1221 Brickell Avenue
(305) 579-0500 Miami, Florida 33131
(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. [ ]
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. [ ]
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, MARCH 22, 1996
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 March 11 , 1996, the last
reported sale price of the Common Stock on the Nasdaq National
Market was $31.00 per share. As of
March 1 , 1996, there were 7,460,526 shares
of Common Stock issued and outstanding.
The Company will pay all of the expenses, estimated to be
approximately $46,490, 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 March ,
1996
CAPITAL BANCORP
TABLE OF CONTENTS
Page
AVAILABLE INFORMATION. . . . . . . . . . . . . . . . . . . . . . .
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE . . . . . . . . .
THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
RECENT DEVELOPMENTS . . . . . . . . . . . . . . . . . . . .
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 reference to such exhibits which are
a part of the Registration Statement.
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, June 30,
1995 and September 30, 1995 and Quarterly Reports
on Form 10-Q/A for the fiscal quarters ended June
30, 1995 and September 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 March 1 , 1996,
7,460,526 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.
RECENT DEVELOPMENTS
The following table presents certain financial data of the
Company as of and for the years ended December 31, 1994 and 1995
and for the three month period ended December 31, 1994 and 1995, as
well as certain balance sheet data as of September 30, 1995.
[CAPTION]
<TABLE>
<S> <C>
Year Ended
December 31,
1995 1994
(unaudited) (audited)
(Dollars in thousands, except per
share data)
Income Statement Data:
Interest income $109,331 $84,563
Interest expense 41,752 25,114
Provision for credit
losses 5,835 5,760
Other income 46,106 41,948
Other expenses 80,288 74,459
Net income 17,101 13,204
Return on assets 1.20% 1.04%
Return on equity 16.71% 15.10%
Per Share Data:
Net income (fully diluted) $2.20 $1.79
Cash dividends $0.33 $0.33
(continued)
<S> <C>
Three Months Ended
December 31,
1995 1994
(unaudited) (unaudited)
(Dollars in thousands, except per
share data)
Income Statement Data:
Interest income $29,101 $23,844
Interest expense 11,963 7,833
Provision for credit losses 1,735 1,200
Other income 11,737 10,572
Other expenses 19,963 21,335
Net income 4,416 2,504
Return on assets 1.14% 0.74%
Return on equity 15.82% 10.99%
Per Share Data:
Net income (fully diluted) $0.54 $0.34
Cash dividends $0.833 $0.833
</TABLE>
[CAPTION]
<TABLE>
<S> <C> <C> <C>
December September December
31, 30, 31,
1995 1995 1994
Balance Sheet Data: (unaudited) (unaudited) (audited)
Total assets $1,593,119 $1,502,991 $1,319,863
Total loans and
advances, net 920,356 906,723 805,057
Non-accrual loans
and advances 9,074 7,422 7,098
Allowances for credit
losses 14,770 15,221 10,984
Deposits 1,038,755 965,476 876,793
Stockholders'
equity 113,725 107,640 91,363
</TABLE>
The Company's improved performance for the 1995 fiscal year
and the fourth quarter can be attributed to a variety of factors.
Capital Factors continued its strong growth during 1995 as its
factored sales volume reached $2.0 billion, a 30% increase from
1994, which contributed to a 10% increase in other income.
Increases in the Company's interest earning assets of $193 million
resulted in significant improvement in net interest income. The
Company experienced growth in commercial loans of $44 million. The
largest contributing factor to the higher level of commercial loans
was an increase of $28 million in asset based loans made by Capital
Factors. Deposits also increased by $162 million due primarily to
the Company's internal marketing efforts. Additionally, in July
1995, Capital Factors issued another $50 million in senior
certificates, bringing the total outstanding to $175 million at
December 31, 1995.
The Company experienced a high level of overdrafts in 1995 of
approximately $3.5 million, compared to $996,000 for 1994, which is
reflected in other expenses. The overdraft losses, which were
experienced primarily in the first two quarters of 1995, included
$2.7 million which was related to one customer and is the subject
of an ongoing criminal investigation. To mitigate the risk of
future losses of this nature, management has revised and
strengthened certain internal review and approval procedures.
The increase in non-accrual loans during 1995 resulted
primarily from several Argentine loans made by the Company, which
arose from trade-related transactions. Following the devaluation
of the Mexican peso in 1994, some banks in Argentina experienced
liquidity problems due to a shift in deposits. As a result, two
banks which had loans aggregating approximately $2.7 million,
ceased operations in 1995. The increase in the allowance for
credit losses for 1995 is the result of such loans and the higher
levels of potential problem loans in the domestic commercial and
real estate mortgage portfolio. Management does not believe these
circumstances represent deteriorating trends, but are isolated to
specific borrowers. During 1995, domestic loan charge-offs
generally decreased as compared to 1994 as a result of overall
improvement in the credit quality of borrowers. In the fourth
quarter of 1995, $695,000, representing the balance owed by one of
the Argentine banks was charged off. In addition, during the
fourth quarter, one advance of approximately $1.3 million by
Capital Factors was placed on non-accrual status, along with a real
estate mortgage loan of approximately $600,000.
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, accounts
receivable advances by Capital Factors, and securities, and its
interest expense on interest-bearing liabilities, such as deposits
and other borrowings. 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.
Set forth below is a summary of maturity and repricing
characteristics of the Company's interest-earning assets and
interest-bearing liabilities at September 30, 1995. For purposes
of this analysis, regular passbook savings and NOW accounts are
included as repricing in 30 days or less, based on an assessment of
the underlying liabilities. The difference between the maturities
and repricing intervals applicable to interest-earning assets and
interest-bearing liabilities is commonly referred to as the "gap."
[CAPTION]
<TABLE>
<S> <C>
Maturity or Repricing
(in millions)
30 days 31-180 181-365
or less days days
Interest-earning Assets:
Loans $ 272.6 $ 37.6 $ 65.2
Securities 16.3 77.2 37.6
Other earning assets 314.2 -- --
Total interest-earning
Assets 603.1 114.8 102.8
Interest-bearing
Liabilities:
Interest-bearing
deposits 199.6 221.0 140.3
Short term borrowings 74.0 -- --
Long term debt 176.7 -- --
Total interest-bearing
Liabilities 450.3 221.0 140.3
Gap 152.8 (106.2) (37.5)
Cumulative Gap $ 152.8 $ 46.6 $ 9.1
(continued)
<S> <C>
Maturity or Repricing
(in millions)
Over
one year Total
Interest-earning Assets:
Loans $ 288.5 $ 663.9
Securities 82.4 213.5
Other earning assets -- 314.2
Total interest-earning
Assets 370.9 1,191.6
Interest-bearing Liabilities:
Interest-bearing deposits 117.6 678.5
Short term borrowings -- 74.0
Long term debt -- 176.7
Total interest-bearing
Liabilities 117.6 929.2
Gap 253.3 --
Cumulative Gap $ 262.4 $ 262.4
</TABLE>
Interest-earning assets and interest-bearing liabilities are
influenced by both factors outside the control of management, such
as current interest rates, and factors controlled by management,
such as the rates paid on deposits. If market interest rates
decline and the Company does not make equivalent reductions in the
rates paid on its deposits, short term net interest income should
decline. Conversely, if interest rates increase and the Company
does make an equivalent increase in deposit rates, net interest
income should increase. The Company's cumulative gap at September
30, 1995 for the next year was $9.1 million. As a result,
management does not believe that the Company's operating results
will be significantly impacted by changes in interest rates over
the next year.
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 in the Circuit Court of the 11th
Judicial Circuit for Dade County, Florida against 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, President and Chief
Executive Officer (the "Derivative Action"). The Derivative Action
was subsequently amended to add, among other things, the remaining
members of the Board of Directors as defendants. Through the
Derivative Action, the plaintiffs alleged that certain defendants
engaged in a series of illegal activities causing harm to the
Company and Capital Bank, including (i) the settlement of a sexual
harassment claim, (ii) the payment of excessive compensation and
separation payments, (iii) the appointment of unqualified family
members as officers, (iv) the withholding of information and (v)
the misappropriation of Capital Bank funds for personal uses. The
plaintiffs 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 (i) the
unlawful use of proxies, (ii) the prevention of investigations and
shareholder meetings, (iii) the unlawful alteration of the
composition of the Company's Board of Directors and (iv) 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
was 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. Upon motion of the defendants, the
complaint was dismissed without prejudice in November 1995 for
containing legal argument, which the court ruled to be improper.
The Court allowed for the filing of an amended complaint, but
stayed the proceedings and any required response to an amended
complaint until the independent committee has a reasonable period
of time to complete its review.
An amended complaint was filed in December 1995 containing
substantially the same allegations. A new director and former
director of the Company were added as defendants, while another
former director of the Company was removed as a defendant. The
plaintiffs are seeking, on behalf of the Company, unspecified
monetary damages, including treble damages, reasonable costs and
attorneys' fees, and injunctive relief (i) precluding Fana Holtz
from voting shares for which she has proxies , (ii) setting
aside a February 27, 1995 shareholders' meeting, (iii) reinstating
two former directors, (iv) precluding the current Board from taking
any action and (v) returning certain shares to the Company. No
motions seeking such relief have been filed. No monetary relief is
sought from the Company and no count specifically seeks relief from
the Company.
Also on February 8, 1995, a shareholder of the Company
commenced an individual action in the Circuit Court of the 11th
Judicial Circuit for Dade County, Florida against the Company,
Daniel Holtz, Fana Holtz and Abel Holtz. Such action alleged that
the defendants, other than the Company, breached fiduciary duties
owed to the plaintiff by, among other things, improperly using
proxies to vote shares of the Company owned by the plaintiff and
another shareholder to engage in improper activity and to promote
their personal interest to the detriment of the plaintiff. In
support of the complaint, the plaintiff 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 (both plaintiffs are named
plaintiffs in the Derivative Action) and all the existing and
certain former directors of the Company were added as defendants.
The amended complaint alleged 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 (although
the required papers to have a hearing on the matter have not been
filed).
Upon motion of the defendants, the amended complaint was
dismissed without prejudice for containing legal argument, which
the court ruled to be improper. The Court dismissed with prejudice
the plaintiff's request to terminate the proxies granted by the
non-plaintiff shareholder. The Court allowed for the filing of an
amended complaint, but stayed the proceedings as to certain claims
until the independent committee has a reasonable period of time to
complete its review. The Court also indicated that certain counts
of the complaint did not properly plead the elements for injunctive
relief. An amended complaint was filed in December 1995 containing
substantially the same allegations. The plaintiffs seek
unspecified monetary damages and costs and, in addition to the
injunctive relief requested in the Derivative Action, plaintiffs
seek (i) a termination of the proxy granted by one of the
plaintiffs, (ii) to prevent Daniel Holtz from voting proxies, (iii)
a constructive trust for shares and options obtained as a result of
an alleged breach of fiduciary duty, (iv) an order returning to one
of the plaintiffs his percentage of any shares obtained by members
of the Holtz family because of the control group created by the
proxies, (v) a meeting of shareholders and (vi) reinstatement of
one of the plaintiffs to the Board of Directors and invalidation of
the actions of the current Board (although the required papers to
hold a hearing on the matter have not been filed). Plaintiffs also
seek declaratory relief invalidating the proxies and former actions
with respect to which the proxies were voted. The plaintiffs have
not indicated that they are seeking any monetary relief from the
Company other than costs. The Company has filed a
motion to dismiss the two counts of the complaint in the
individual action in which it is named and has
moved to stay certain other counts of the complaint
on the grounds that those claims are derivative.
The Company does not believe that the outcome of the foregoing
litigations will have a material adverse effect on the Company's
financial condition , results of operations or
liquidity .
Pursuant to its Bylaws, the Company is authorized to
indemnify, to the extent permitted by the laws of the State of
Florida, any person who is made a party to any lawsuit or action by
reason of the fact that he or she is or was a director or officer
of the Company. By virtue of this provision, the Company is
currently advancing the legal expenses of its outside directors who
were named as defendants in the above litigation. Those directors
have agreed in writing to repay the Company for all or any portion
of those advances which they are ultimately found not to have been
entitled to pursuant to applicable Florida law. The Company may in
the future also pay the legal expenses of its other directors who
are also named defendants in the litigation.
Under Florida law, the Company will not be required to
indemnify any such director unless the following criteria are met:
(i) he or she is a party to the litigation because of his or her
status as a director or officer of the Company and (ii) he or she
is successful in his or her defense of the litigation. At the
other extreme, no indemnification can be made to a director if a
judgment or final adjudication establishes that the actions or
non-actions of that director were material to the cause of action
and constituted (i) a violation of criminal law (unless the
director had a reasonable cause to believe that his conduct was
lawful or had no reasonable cause to believe that his conduct was
unlawful); (ii) willful misconduct or a conscious disregard for the
best interests of the Company; or (iii) a transaction in which the
director received an improper personal benefit. In circumstances,
where a director seeking indemnification has not been successful in
his or her defense in the litigation but the factual circumstances
prohibiting indemnification have not been adjudicated to exist,
indemnification by the Company will not be required, but may be
permitted under Florida law. At this time, it is impossible to
determine whether the circumstances at the conclusion of the
litigation will permit, prohibit or require indemnification by the
Company of any or all of its directors or what factors will be
considered in such determination, other than those factors set
forth above.
Based on the information currently available to the Company,
management does not believe that the indemnification of the
directors named as defendants in the above litigation will have a
material adverse effect on the financial condition, results of
operations or liquidity of the Company. However, the actual
effects of such indemnification on the Company cannot be finally
determined until the amount of such indemnification, if any, is
fixed.
Voting Control and Control Application and Other Regulatory
Matters
As of February 14, 1996 , 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%, 40% and 4%
(51% 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. Fana Holtz, Daniel
Holtz, and Javier Holtz have advised the Company that they
had discussions with the FDBF as to whether one or more of
them was required under Florida law to file an application to
acquire and/or maintain a controlling interest in Capital Bank
through their ownership and control of the Company. As a result of
those discussions, 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/or maintain a
controlling interest in the Company, although they do not believe
such an application is legally required. Fana Holtz, Daniel Holtz
and Javier Holtz are also having discussions with the FRB as to
whether a control filing is required under federal law. The
plaintiffs and another shareholder in the above-described
litigations have filed a Notice of Intent to Appear and Petition
for a Formal Administrative Hearing with the FDBF in connection
with the disposition of the Florida application. A hearing date
has been set for August 1996. It cannot presently
be determined what effect, if any, the discussions with the
FRB or the FDBF's action on the application will have
on the Company , although if control applications ultimately were
determined to be required and such applications were denied,
regulatory authorities could take various actions, including
requiring that one or more members of the Holtz family divest
sufficient shares of the Company so as not to have legal control of
the Company as defined by regulatory authorities.
Abel Holtz, the former Chairman of the Board, President and
Chief Executive Officer of the Company and currently a shareholder
of the Company is subject to the restrictions of Section 19 of the
Federal Deposit Insurance Act, which preclude him from controlling
or otherwise participating in the conduct of the affairs of the
Company and Capital Bank. Abel Holtz has advised the Company that
he has orally agreed with the FDIC not to vote his shares of the
Company at the present time. Federal bank regulatory authorities
are also examining and investigating whether Abel Holtz and some or
all of the persons discussed in this section, including the Company
and its subsidiaries, as well as possibly other persons, are in
compliance with applicable change in control laws and Section 19.
To date, the Company is unaware of any conclusions which may have
resulted from these inquiries.
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 March
11, 1996 (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 $46,490, 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.
[CAPTION]
<TABLE>
<S> <C> <C> <C>
Percent of
Number of Number of Shares of
Shares Owned Shares Common Stock
Name and Address of Prior to Offered Held Prior
Selling Shareholder Offering Hereby to Offering
Keefe Partners L.P.(2) 117,000 96,700 1.6%
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>
Ownership of
Shares
of Common Stock
After Offering(1)
Shares Percentage
Keefe Partners L.P.(2) 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. ("Keefe Partners") is a Delaware limited
partnership. Keefe Managers, Inc. ("Keefe Managers"), a
Delaware corporation and registered investment advisor, and
HVK Managers L.P. ("HVKM"), a Delaware limited partnership,
serve as general partners of such entity. Harry V. Keefe, Jr.
("Keefe") is the sole stockholder and Chairman and Chief
Executive Officer, and Matthew F. Byrnes ("Byrnes") is the
President of Keefe Managers. Keefe is the sole general
partner of HVKM.
(3) Rainbow Partners L.P. ("Rainbow Partners") is a Delaware
limited partnership. Rainbow Managers, LLC ("Rainbow
Managers"), a New York limited liability company and
registered investment advisor, and Rainbow Holdings, LLC
("Rainbow Holdings"), a New York limited liability company,
serve as general partners of Rainbow Partners. Keefe is the
Chairman and Chief Executive Officer and Byrnes is the
President and Chief Operating Officer of each of Rainbow
Managers and Rainbow Holdings. Rainbow Managers and Keefe
Managers are under common control.
(4) Keefe Offshore Fund Ltd. ("Keefe Offshore") is a Cayman
Islands company. Keefe Managers serves as investment advisor
to such entity. Keefe is the owner of all of the outstanding
voting stock of Keefe Offshore. Keefe and Field Directors
(Cayman) Ltd. are directors of Keefe Offshore. Field
Directors (Cayman) Ltd. is a wholly-owned subsidiary of Bank
of Butterfield International (Cayman) Ltd., Keefe Offshore's
administrator.
(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 by the Selling Shareholders 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 $46,490, 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
liabilities caused by any untrue statement of a material fact
contained in the Registration Statement or caused by any omission
of a material fact necessary to make the statements therein not
misleading, unless such untrue statement or omission was furnished
or required to be furnished to the Company by the Selling
Shareholders. The Selling Shareholders have also agreed to
indemnify the Company, its directors, officers, agents and
representatives against liabilities caused by any untrue statement
of a material fact contained in the Registration Statement or
caused by any omission of a material fact necessary to make the
statements therein not misleading, but only if such liabilities are
caused by any untrue statement or omission of information furnished
by the Selling Shareholders. 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 February 16, 1996 , 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
March 11 , 1996, and after giving effect to the
foregoing, there were 7,460,526 shares of Common
Stock issued and outstanding. Options to purchase
97,209 and 1,198,819 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 1994 and
1995, 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
1994 33 1/3
1995 33 1/3
</TABLE>
The Company anticipates that it will continue payment of
regular dividends to its shareholders 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
, 1996
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:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . . . . . . . . $ 1,490
Legal fees and expenses. . . . . . . . . . . . . . . . . 25,000
Accounting fees and expenses . . . . . . . . . . . . . . 15,000
Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 5,000
Total . . . . . . . . . . . . . . . . . . . . . . . $ 46,490
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
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) **
* Filed herewith.
** Previously filed .
(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 Amendment No. 2 to
Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Miami, State
of Florida, on this 19th day of March , 1996.
CAPITAL BANCORP
By:/s/ DANIEL M. HOLTZ
Daniel M. Holtz, Chairman
of
the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
[CAPTION]
<TABLE>
<S> <C> <C>
Signature Title Date
/s/ DANIEL M. HOLTZ Chairman of the Board, March
19, 1996
DANIEL M. HOLTZ President and Chief
Executive Officer
(principal executive
officer)
/s/ FANA HOLTZ* Vice Chairman of the March
19, 1996
FANA HOLTZ Board
/s/ LUCIOUS T. HARRIS* Treasurer (principal March
19, 1996
LUCIOUS T. HARRIS financial and
accounting officer)
/s/ CRAIG L. PLATT* Director March
19, 1996
CRAIG L. PLATT
/s/ JEFFREY H. PORTER* Director March
19, 1996
JEFFREY H. PORTER
/s/ LEON J. SIMKINS* Director March
19, 1996
LEON J. SIMKINS
/s/ RUSSELL W. GALBUT* Director March
19, 1996
RUSSELL W. GALBUT
/s/ HUGH CULVERHOUSE, Director March
19, 1996
JR.*
HUGH CULVERHOUSE, JR.
*By:/s/ DANIEL M. HOLTZ March
19, 1996
DANIEL M. HOLTZ, Attorney-in-fact
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
<S> <C> <C>
Number Description Page
23.2 Consent of Deloitte &
Touche LLP. 24
</TABLE>
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
March 18 , 1996
