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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ________)*
CAPITAL BANCORP
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(Name of Issuer)
COMMON STOCK, $1.00 PAR VALUE
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(Title of Class of Securities)
139734107
----------------------------------------
(CUSIP Number)
Lawrence A. Gordich Suite 1900 Barnett Tower
701 Brickell Ave. Miami, Florida 33131 PH(305)789-2700
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
DECEMBER 24, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
Page 1 of 12 Pages
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SCHEDULE 13D
- ------------------------------ ------------------------------
CUSIP NO. 139734107 PAGE 2 OF 12 PAGES
- ------------------------------ ------------------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
LAWRENCE A. GORDICH
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ ]
(B) [ ]
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO [ ]
ITEMS 2(D) OR 2(E)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
- --------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 665,893
SHARES ----------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 0
REPORTING ----------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
0
----------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
665,893
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.93%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
- --------------------------------------------------------------------------------
Page 2 of 12 Pages
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ITEM 1. SECURITY AND ISSUER
This statement relates to the common stock, $1.00 par value per share (the
"Common Stock"), of Capital Bancorp, a Florida corporation (the "Issuer"). The
Issuer's principal executive offices are located at 1221 Brickell Avenue,
Miami, FL 33131.
ITEM 2. IDENTITY AND BACKGROUND
Name: The person filing this statement is Lawrence A. Gordich.
Business Address: Ruden, McClosky, Smith, Schuster & Russell, P.A.
Suite 1900 Barnett Tower
701 Brickell Ave.
Miami, Florida 33131
Present Occupation/Address: Attorney
Ruden, McClosky, Smith, Schuster &
Russell, P.A.
Suite 1900 Barnett Tower
701 Brickell Ave.
Miami, Florida 33131
Criminal Convictions: During the past five years Mr. Gordich has not
been (i) convicted in a criminal proceeding
(excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil
proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment,
decree or final order enjoining future violations
of, or prohibiting or mandating activities
subject to, federal or state securities laws or
finding any violation with respect to such laws.
Citizenship: Mr. Gordich is a citizen of the United States of
America
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Mr. Gordich was deemed to have acquired beneficial ownership of the shares
of the Issuer reported in this Schedule 13D as a result of an irrevocable proxy
being granted to Mr. Gordich by Mr. Abel Holtz. Mr. Gordich did not give any
monetary consideration for such irrevocable proxy.
ITEM 4. PURPOSE OF TRANSACTION
Pursuant to an Irrevocable Proxy ("Irrevocable Proxy") dated December 24,
1996, Mr. Lawrence A. Gordich was granted an irrevocable proxy by Mr. Abel
Holtz, which transfers to Mr. Gordich the sole right and power to vote 665,893
shares of the Issuer beneficially owned by Mr. Holtz. Pursuant to such
Irrevocable Proxy granted to Mr. Gordich, on any matter brought before the
shareholders of the Issuer for a vote, Mr. Gordich is required to vote such
665,893 shares proportionately with all other outstanding shares of the Issuer
on such matter. The purpose of the grant of the Irrevocable Proxy was to
satisfy an arrangement agreed upon by Mr. Holtz and certain federal bank
regulatory agencies.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) Beneficial Ownership: Mr. Gordich is deemed to beneficially own 665,893
shares of the Issuer's Common Stock, representing
approximately 8.93% of the Company's total issued
and outstanding Common Stock.
(b) Nature of Ownership: Mr. Gordich has the sole right and power to vote
all such 665,893 shares of the Issuer subject to
the terms and conditions of the Irrevocable Proxy.
Mr. Gordich
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does not beneficially own any shares of the Issuer
with respect to which he exercises shared voting
power, or sole or shared dispositive power.
(c) Transactions in past sixty days. None other than the granting of the
Irrevocable Proxy described in Item 4.
(d) Right to Dividends/Proceeds: Pursuant to the terms of the Irrevocable
Proxy, Mr. Holtz retains the right and power to receive or to direct the
receipt of dividends from, or the proceeds from the sale of, such securities.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
As noted above in Item 4, Mr. Lawrence A. Gordich was granted an
irrevocable proxy by Mr. Abel Holtz pursuant to an Irrevocable Proxy
("Irrevocable Proxy") dated December 24, 1996. Such Irrevocable Proxy
transfers to Mr. Gordich the sole right and power to vote 665,893 shares of the
Issuer beneficially owned by Mr. Holtz. Pursuant to such Irrevocable Proxy
granted to Mr. Gordich, on any matter brought before the shareholders of the
Issuer for a vote Mr. Gordich is required to vote such 665,893 shares
proportionately with all other outstanding shares of the Issuer on such matter.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
The following Exhibits are filed as part of this Schedule 13D:
Exhibit A Irrevocable Proxy dated December 24, 1996, by and between
Lawrence A. Gordich and Abel Holtz.
SIGNATURE
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the information set forth in this statement is true, complete and
correct.
Dated: February 14, 1997
/s/ LAWRENCE A. GORDICH
-----------------------------------
Lawrence A. Gordich
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EXHIBIT INDEX
Sequential
Exhibit Page No.
- ------- ----------
A Irrevocable Proxy dated December 24, 1996, by
and between Lawrence A. Gordich and Abel Holtz.
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IRREVOCABLE PROXY
This Irrevocable Proxy (with a stated term) ("PROXY") is made this 24th
day of December, 1997, by and between ABEL HOLTZ, an individual residing in
Dade County, Florida ("HOLTZ") and LAWRENCE A. GORDICH, an individual residing
in Dade County, Florida ("HOLDER").
WITNESSETH
A. Holtz is the owner of approximately 665,893 shares of Common Stock
(the "COMMON STOCK") of Capital Bancorp, Miami, Florida ("CAPITAL"),
representing approximately 9.85% of the total outstanding shares.
B. Holtz is currently subject to certain prohibitions that preclude his
voting the shares, and accordingly desires to enter into this Proxy to allow
Holder to vote his shares (the "SHARES") on the basis set forth herein.
C. Holtz desires to grant Holder an irrevocable proxy, granting Holder
the sole right and power to vote the Shares, and Holder has agreed to accept
such an appointment.
D. The rights granted Holder hereunder constitute full right and power
to vote the Shares on the basis provided herein; however, they do not constitute
any right or power with respect to the other attributes of ownership of the
Shares, including, without limitation, the right to sell, transfer, assign or
pledge all or any part of the Shares; the right to receive dividends or
distributions with respect to the Shares, whether in cash or property; or the
right to receive any proceeds with respect to the Shares, and in connection
therewith, Holtz shall retain full beneficial ownership thereof other than with
respect to the voting rights transferred hereunder.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
promises, covenants and agreements hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. GRANT OF PROXY. Holtz hereby irrevocably constitutes and appoints
Holder as proxy for Holtz, to vote any and all of the Shares with regard to any
question, action, resolution, election, matter or other item of any nature
whatsoever placed before or presented to the shareholders of Capital for
approval.
2. SCOPE OF PROXY. Without limiting the scope of SECTION 1 above, this
Proxy shall govern the vote by Holder with respect to any and all matters voted
upon by the shareholders of Capital, whether at a meeting or pursuant to
shareholder action by written consent or otherwise, whether or not Holtz,
members of his family, or any of his
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affiliates have or could have a direct or indirect interest in such matter, and
whether or not Holder, members of his family, or any of his affiliates have or
could have a direct or indirect interest in such matter, including, but not
limited to:
(i) any change in the authorized capital stock or capital structure of
Capital, including the grant of any options, the creation of stock
benefit plans or the authorization, creation or issuance of any
additional shares of common stock or any additional class of stock of
Capital;
(ii) any amendment to the articles of association of Capital or amendment
to its bylaws;
(iii) any merger, consolidation, share exchange, sale of all or
substantially all the assets of Capital, or its dissolution and
liquidation;
(iv) the election of members of the board of directors of Capital;
(v) any change in the number of members of the board of directors of
Capital; or
(vi) any other matter that may be voted or acted upon by the shareholders
of Capital.
3. INSTRUCTIONS WITH RESPECT TO VOTE. On any matter brought before the
shareholders of Capital for a vote, Holder shall vote the Shares
proportionately with all other outstanding shares of Capital voted on such
matter. Accordingly, once the voting of all other shares of Capital has been
tabulated and determined, the Shares shall be voted proportionately on each
matter for which a vote was obtained. For example, if 60% of the outstanding
shares which were voted on a particular matter were voted in favor of the
matter, 30% voted against and 10% abstained, 60% of the Shares shall be voted
in favor, 30% against, and 10% should be reflected as an abstention. The
voting shall not reflect the proportion of shares that were not voted on the
matter.
4. SUCCESSOR PROXIES; SUBSTITUTIONS. While the Proxy granted herein is
not transferable in its entirety and Holder is not granted full power of
substitution with respect to this Proxy, Holder may, in connection with any
matter brought before the shareholders of the Bank for a vote or otherwise
described in Sections 1 and 2 above, grant a customary, one time proxy in favor
of (i) any individual proposed by management of the Bank (other than Holtz or
his immediate family members) on its proxy form sent to all shareholders as
part of its proxy solicitation in connection with any annual or special meeting
of shareholders, or (ii) any individual Gordich may select (other than Holtz or
his immediate family members), it being expressly understood that there is no
requirement that the Shares be voted in person; provided, however, in any
event, the shares shall be voted as provided in Section 3 above.
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5. VOTING OF SHARES; LIMITATION OF LIABILITY. Holder assumes and shall
incur no responsibility or liability for any damage or other liability
resulting from the voting of the Shares as provided herein or the consequences
of such vote.
6. COMPENSATION AND REIMBURSEMENT OF GORDICH. Gordich shall be paid a
fee of $250 per hour by Holtz, reflecting the hours spent by Gordich in carrying
out his obligations hereunder (which fee shall be payable monthly upon billing
by Gordich), and shall be entitled to reimbursement for any and all other
disbursements made by Gordich reasonably incurred in the discharge of his
duties under this Proxy.
7. TERM AND TERMINATION. The Proxy granted hereby shall be and become
effective upon the execution hereof by both Holtz and Holder. This Proxy shall
remain in effect until the earlier of the following events: (i) the death,
incapacity or resignation of Holder; (ii) the sale or transfer of the Shares by
Holtz to an entity or individual entitled to vote the Shares (which may
include, subject to the restrictions of SECTION 13 below, immediate family
members of Holtz), it being understood that Holtz may transfer less than all
the Shares free and clear of this Proxy, with the remaining Shares subject
hereto, provided that Holtz shall provide the FDIC with prior written notice of
any transferee of all or any part of the Shares; (iii) receipt of any notice by
Holtz or Holder from the FDIC or the Board of Governors of the Federal Reserve
System that Holder may not vote the Shares and that the Proxy must be
terminated; or (v) receipt of any notice by Holtz from the FDIC that he may
permissibly vote the Shares.
8. EFFECT OF TERMINATION. Upon the termination of this Proxy, all
rights and obligations under this Proxy shall terminate, and Holder shall have
no further obligation in his capacity as holder of the Proxy granted herein.
9. NOTICE. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been given if
delivered by hand or if mailed by United States registered or certified mail,
return receipt requested, first class postage prepaid, or sent by Federal
Express or similar overnight courier service to the parties at the address
shown beneath the name of such recipient as it appears on SCHEDULE 1 attached
hereto. All notices required or given hereunder shall also be copied to the
FDIC. If delivered personally, the date on which a notice, request,
instruction or document is delivered shall be the date on which such delivery
is made and, if delivered by mail, Federal Express or other overnight courier
(and actually received), the date on which such notice, request, instruction or
document is deemed to be received shall be the date of delivery. Any party
hereto may change the address to which notices and other communications shall
be sent by notifying other parties of the change in the same manner as provided
in this SECTION 9.
10. GOVERNING LAW. This Proxy and the legal relationships thereunder
shall be governed by and construed in accordance with the laws of the State of
Florida.
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11. FILING OF PROXY. Holtz and Holder shall cause a copy of this Proxy,
and any other agreement supplementing, amending or otherwise modifying this
Proxy to be filed with Capital.
12. ACCEPTANCE BY HOLDER. Holder accepts the Proxy provided herein
subject to all the terms, conditions and reservations herein contained, and
agrees that he will exercise the powers and perform the duties as set forth in
this Proxy; provided, however, that no provision of this Section or any other
provision of this Proxy shall be deemed to prohibit Holder from resigning and
discharging himself from the duties set forth herein.
13. RETENTION OF RIGHTS BY HOLTZ. Holtz shall retain each and every
other right, power and interest with respect to the Shares except for the
rights to vote the Shares granted to Holder herein. Such rights retained by
Holtz include, without limitation, the right to receive any cash or in-kind
dividends or distributions declared or paid on the Shares, whether ordinary,
extraordinary, or in complete or partial liquidation or otherwise; the right to
sell or transfer all or any part of the Shares and receive the proceeds
therefrom; the right to pledge, hypothecate or margin the Shares, either in
connection with existing obligations of Holtz or obligations that may arise in
the future, and receive the benefits or proceeds of any such action.
Notwithstanding the foregoing, Holtz may not sell or transfer all or any part
of the Shares to his immediate family members until such time as the Federal
Reserve Board has determined that such family members have satisfied all
applicable requirements of the Change in Bank Control Act of 1978, as amended,
and the implementing regulations thereof, and that the proposed transfer will
either not require the filing of a new notice under such Act or that if a
notice is required, such notice has been filed and no objection to the transfer
by the Federal Reserve Board has been received after the expiration of all
required waiting periods.
14. SEVERABILITY. In case one or more of the provisions contained in
this Proxy are held to be invalid, illegal or unenforceable in any respect for
any reason, the same will not affect any other provision set forth in this
Proxy, but this Proxy will be construed as if such invalid or illegal or
unenforceable provision had never been set forth herein.
15. COUNTERPARTS. This Proxy may be executed in any number of
counterparts each of which shall be deemed to be an original, and all of which
taken together shall constitute one and the same instrument.
16. AMENDMENTS. This Proxy may be altered, amended or modified only by
the written agreement of both Holtz and Holder; provided, that no such
alteration, amendment or modification shall be effective without the prior
written approval of the FDIC.
17. INDEMNIFICATION. Holtz shall indemnify and hold Holder and Capital
harmless from any and all liabilities or damages, judgments, awards and
expenses (including reasonable attorney's fees and costs of investigation and
defense) (collectively
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"LIABILITIES") that may be asserted against Holder or Capital in any judicial
or administrative proceeding (which shall also include threats of judicial or
administrative actions asserted in writing) (collectively "PROCEEDINGS")
arising out of or relating in any way to this Proxy, including without
limitation actions that Holder may take pursuant hereto, subject to the
following:
(i) Holder or Capital shall promptly notify Holtz of any Proceedings
giving rise to a claim for indemnification hereunder;
(ii) Holtz may elect to defend the Proceedings through counsel of his
choice which shall be satisfactory to Holder and Capital, in which case
Holder or Capital may if he or it wishes also participate in the defense
of the Proceeding at his or its cost and expense; if Holtz elects not to
assume the defense of the Proceeding, Holder or Capital may do so through
counsel of his or its choice which shall be satisfactory to Holtz. It is
the express intention of the parties that notices and decisions be made
promptly so as not to prejudice the other party with respect to the
Proceeding;
(iii) Whichever party assumes defense of the Proceeding shall keep the
other reasonably informed as to developments in the Proceeding; and
(iv) Holtz shall not be liable for any settlement of any Proceeding
without his consent, which consent shall not be unreasonably withheld.
The indemnification provided hereunder shall cover Liabilities resulting from:
(A) any action taken by Holder pursuant to the exercise of this Proxy,
specifically including voting the Shares as provided herein;
(B) any action taken by Capital pursuant to any vote, consent or other
such action (or inaction) by Holder;
(C) any error of judgment or mistake of law by Holder; or
(D) any other act or omission by Holder, except, in all instances, to the
extent that such Liabilities result from the gross negligence of Holder,
bad faith by Holder or a willful violation of this Proxy by Holder.
The indemnification provided hereunder shall survive the termination of this
Proxy, and shall remain in full force and effect for a period of six years
beyond the date of termination.
17. DEFINITION OF "IMMEDIATE FAMILY MEMBERS." As used in this Agreement,
the term "immediate family members" means the following (whether by the full or
half blood or by adoption):
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(i) Holtz's spouse, father, mother, children, brothers, sisters, and
grandchildren;
(ii) the father, mother, brothers and sisters of Holtz's spouse; and
(iii) the spouse of either of Holtz's children, or the brothers or
sisters of such spouse.
IN WITNESS WHEREOF, Holtz and Holder have signed, sealed and delivered
this Proxy, effective as of the date first above written.
HOLTZ:
/s/ ABEL HOLTZ
---------------------------------------
Abel Holtz
HOLDER:
/s/ LAWRENCE A. GORDICH
---------------------------------------
Lawrence A. Gordich
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SCHEDULE 1
ADDRESSES FOR NOTICES
If to Holtz:
Abel Holtz
169 East Flagler Avenue
Suite 1627
Miami, FL 33131
with copy to:
John L. Douglas
Alston & Bird
1201 W. Peachtree Street, NW
Atlanta, GA 30309-3424
If to Holder:
Lawrence A. Gordich
Ruden, McClosky, Smith, Schuster & Russell, P.A.
Suite 1900 Barnett Tower
701 Brickell Ave.
Miami, FL 33131
with a copy to:
James George
Ruden, McClosky, Smith, Schuster & Russell, P.A.
Suite 1900 Barnett Tower
701 Brickell Ave.
Miami, FL 33131
If to the FDIC:
Federal Deposit Insurance Corporation
1201 West Peachtree Street, 16th Floor
Atlanta, GA 30309
Attn: Regional Director
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