AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 10, 1998
REGISTRATION NO. 333-49835
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2
TO
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
POINTE FINANCIAL CORPORATION
(Name of small business issuer in its charter)
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<S> <C> <C>
Florida 6712 65-0451402
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
21845 Powerline Road
Boca Raton, Florida 33433
(561) 368-6300
(Address and telephone number of principal executive offices)
21845 Powerline Road
Boca Raton, Florida 33433
(Address of principal place of business or
intended principal place of business)
R. Carl Palmer, Jr.
President
Pointe Financial Corporation
21845 Powerline Road
Boca Raton, Florida 33433
(561) 368-6300
(Name, address, and telephone number,
including area code, of agent for service)
Copies to:
Thomas R. Blake, Esq. Michael T. Kohler, Esq.
Stuzin & Camner, P.A. Brown & Wood LLP
550 Biltmore Way, Suite 700 One World Trade Center
Coral Gables, FL 33134 New York, NY 10048
(305) 442-4994 (212) 839-5300
APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC: As soon as practicable
after this Registration Statement becomes effective.
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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier 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. / /
CALCULATION OF REGISTRATION FEE
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| PROPOSED | PROPOSED |
| MAXIMUM | MAXIMUM |
TITLE OF EACH CLASS OF | OFFERING PRICE | AGGREGATE | AMOUNT OF
SECURITIES TO BE AMOUNT TO BE | PER | OFFERING | REGISTRATION
REGISTERED REGISTERED(1) | UNIT(2) | PRICE(2) | FEE(3)
Common Stock, | | |
$.01 par value.......................... 1,000,000 | $16.00 | $16,000,000 | $4,720.00
</TABLE>
(1) Based upon the maximum number of shares of the Registrant's Common Stock
that may be issued under this Registration Statement, including 130,435
shares of Common Stock that may be issued upon exercise of the Underwriters'
over-allotment option.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the proposed maximum offering price per share.
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 Section 8(a), may
determine.
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<PAGE>
This Amendment is filed solely to amend the exhibit list and to file
additional exhibits.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article X of the Articles of Incorporation of the Company provides that the
Company shall indemnify its officers and directors to the fullest extent
permitted by law.
Section 607.0831 of the Florida Business Corporation Act provides, among
other things, that a director is not personally liable for monetary damages to a
company or any other person for any statement, vote, decision, or failure to
act, by the director, regarding corporate management or policy, unless the
director breached or failed to perform his or her duties as a director and such
breach or failure constitutes (a) a violation of criminal law, 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) a transaction
from which the director derived an improper personal benefit; (c) a circumstance
under which the liability provisions of Section 607.0834 of the Florida Business
Corporation Act (relating to the liability of the directors for improper
distributions) are applicable; (d) willful misconduct or a conscious disregard
for the best interest of the company in the case of a proceeding by or in the
right of the company to procure a judgement in its favor or by or in the right
of a shareholder; or (e) recklessness or an act or omission in bad faith or with
malicious purpose or with wanton and willful disregard for human rights, safety
or property, in a proceeding by or in the right of someone other than such
company or a shareholder.
Section 607.0850 of the Florida Business Corporation Act authorizes, among
other things, the Company to indemnify any person who was or is a party to any
proceeding (other than an action by or in the right of the Company) by reason of
the fact that he is or was a director, officer, employee or agent of the Company
(or is or was serving at the request of the Company in such a position for any
entity) against liability incurred in connection with such proceeding, if he or
she acted in good faith and in a manner reasonably believed to be in the best
interests of the Company and, with respect to criminal proceedings, had no
reasonable cause to believe his or her conduct was unlawful.
Florida law requires that a director, officer or employee be indemnified
for expenses (including attorneys' fees) to the extent that he or she has been
successful on the merits or otherwise in the defense of any proceeding. Florida
law also allows expenses of defending a proceeding to be advanced by a company
before the final disposition of the proceedings, provided that the officer,
director of employee undertakes to repay such advance if it is ultimately
determined that indemnification is not permitted.
Florida law states that the indemnification and advancement of expenses
provided pursuant to Section 607.0850 is not exclusive and that indemnification
may be provided by a company pursuant to other means, including agreements or
bylaw provisions. Florida law prohibits indemnification or advancement of
expenses, however, if a judgment or other final adjudication establishes that
the actions of a director, officer or employee constitute (i) a violation of
criminal law, unless he or she had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful; (ii) a transaction from which such person derived an improper personal
benefit; (iii) willful misconduct or conscious disregard for the best interests
of the company in the case of a derivative action or a proceeding by or in the
right of a shareholder; or (iv) in the case of a director, a circumstance under
which the liability provisions of Section 607.0834 of the Florida Business
Corporation Act (relating to the liability of directors for improper
distributions) are applicable.
The Company has purchased director and officer liability insurance that
insures directors and officers against liabilities in connection with the
performance of their duties.
The Purchase Agreement filed herewith as Exhibit 1.1 contains provisions by
which each underwriter agrees to indemnify the Registrant, each person, if any,
who controls the Registrant within the meaning of Section 15 of the Securities
Act of 1933 (the "Act"), each Director of the Registrant, and each officer of
the Registrant who signs this Registration Statement, with respect to
information furnished in writing by and concerning such underwriter specifically
for use in the Registration Statement.
II-1
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ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses expected to be incurred in
connection with the issuance and distribution of the securities being
registered, other than the underwriting discounts and commissions, if any.
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SEC Registration Fees....................................... $ 4,720
NASD Filing Fee............................................. $ 2,100
NASDAQ Listing Fee.......................................... $ 48,750
Transfer Agent's Fees and Expenses.......................... $ 4,500
Blue Sky Registration Fees and Expenses..................... $ 10,000
Legal Fees and Expenses..................................... $ 75,000
Accounting Fees............................................. $ 45,000
Printing, Engraving and Mailing Expenses.................... $ 55,000
Miscellaneous............................................... $ 50,000
--------
TOTAL:.................................................... $295,070
========
</TABLE>
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* Estimated.
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES
In a private placement which commenced in December 1995 and concluded in
March 1998, the Registrant sold 50,000 shares of Preferred Stock, Series A (the
"Preferred Stock"), at an offering price of $20.00 per share. The $1,000,000
proceeds of the sale was utilized by the Registrant for working capital.
On each of the quarterly dividend payment dates of the Preferred Stock,
holders of the Preferred Stock were permitted to elect to receive in lieu of the
specified cash dividend an equivalent value of additional shares of Preferred
Stock, valued at $20.00 per share. In these private placements an aggregate of
3,616 additional shares of Preferred Stock had been issued to holders of
Preferred Stock as of March 31, 1998.
The shares of such securities were exempt from the provisions of Section 5
of the Securities Act of 1933, as amended (the "Act"), pursuant to the
provisions of Section 4(2) of the Act because of the limited number of
participants in such transactions and the relationship of such participants to
the Registrant. Sales of securities in these offerings were made only to persons
who were "accredited investors" within the meaning of Rule 501 promulgated under
the Act. In addition, all such participants agreed to acquire their securities
for investment and not with a view to the distribution thereof, and the
certificates representing the securities issued to each such participant contain
a legend to the effect that such securities are not registered under the Act and
may not be transferred except pursuant to a registration statement which has
become effective under the Act, or an exemption from such registration
requirement. Stop transfer instructions have been given to the Registrant's
transfer agent with respect to such securities. The issuance of such securities
was not underwritten, and no commissions or other remuneration were paid or
given, directly or indirectly, in connection with such sales.
II-2
<PAGE>
ITEM 27. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
The following exhibits are filed as part of this Registration Statement:
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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1.1 Form of Purchase Agreement
2.1** Plan of Merger and Merger Agreement dated February 14, 1997
by and between Pointe Federal Savings Bank and Pointe Bank
3.1** Articles of Incorporation of the Registrant
3.2** By-Laws of the Registrant
4.1** Specimen Common Stock Certificate
5.1** Opinion of Stuzin and Camner, P.A.
10.1** 1994 Non-Statutory Stock Option Plan
10.2** Deferred Compensation Plan
10.3** Office Lease Agreement dated October 8, 1986 by and between
Centrum Pembroke, Inc. and Flamingo Bank.
10.4** Lease dated as of July 15, 1992 between Konrad Ulmer and
Pointe Savings Bank
10.5** Lease Agreement dated January 23, 1995 by and between
Hollywood Associates VI and Pointe Bank
10.6** Credit Agreement dated August 18, 1997 between Independent
Bankers' Bank of Florida and Pointe Bank
10.7** Credit Agreement dated October 14, 1997 between SunTrust
Bank/Miami, N.A. and Pointe Bank
10.8** Agreement for Advances and Security Agreement with Blanket
Floating Lien dated November 24, 1997 between Pointe Bank
and the Federal Home Loan Bank of Atlanta
10.9** Equipment Sales and Software License Agreements between
Information Technology, Inc. and Pointe Financial
Corporation
10.10** Master Equipment Lease Agreement dated May 7, 1997 between
Leasetec Corporation and Pointe Financial Corporation
10.11** Letter Agreement dated March 9, 1995 between Pointe
Financial Corporation and R. Carl Palmer, Jr.
10.12** 1998 Incentive Compensation and Stock Award Plan
21.1** Subsidiaries of the Registrant
23.1** Consent of Stuzin and Camner, P.A. (included in Exhibit 5.1)
23.2** Consent of Hacker, Johnson, Cohen & Grieb PA
24** Power of Attorney
27** Financial Data Schedule
</TABLE>
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* To be filed by amendment.
** Previously filed.
ITEM 28. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes to provide the
underwriters at the closing specified in the purchase agreement certificates in
such denominations and registered in such names as required by the underwriters
to permit prompt delivery to each purchaser.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable.
II-3
<PAGE>
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing on Form SB-2 and authorized this Amendment No. 2
to Registration Statement to be signed on its behalf by the undersigned, in the
City of Boca Raton, State of Florida, on June 10, 1998.
POINTE FINANCIAL CORPORATION
By:/s/ R. Carl Palmer, Jr.
--------------------------------
R. CARL PALMER, JR.
President and Chief Executive
Officer
In accordance with the requirements of the Securities Act of 1933, this
Amendment No. 2 to Registration Statement was signed by the following persons in
the capacities indicated on this 10th day of June, 1998.
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NAME AND TITLE SIGNATURE
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<S> <C>
ROBERTO KASSIN, Chairman of the Board */s/ ROBERTO KASSIN
---------------------------------
R. CARL PALMER, JR., President, Chief */s/ R. CARL PALMER, JR.
Executive Officer and Director (Principal ---------------------------------
Executive Officer)
TIMOTHY MCGINN, Director */s/ TIMOTHY MCGINN
---------------------------------
MORRIS MASSRY, Director */s/ MORRIS MASSRY
---------------------------------
BRADLEY R. MEREDITH, Senior Vice President /s/ BRADLEY R. MEREDITH
and Chief Financial Officer (Principal ---------------------------------
Financial and Accounting Officer)
STEVEN A. ELIAS, Director ---------------------------------
RICHARD MEAD, Director ---------------------------------
PARKER D. THOMSON, Director ---------------------------------
*By: /s/ BRADLEY R. MEREDITH
---------------------------------
Bradley R. Meredith
Attorney in Fact
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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1.1 Form of Purchase Agreement
2.1** Plan of Merger and Merger Agreement dated February 14, 1997
by and between Pointe Federal Savings Bank and Pointe Bank
3.1** Articles of Incorporation of the Registrant
3.2** By-Laws of the Registrant
4.1** Specimen Common Stock Certificate
5.1** Opinion of Stuzin and Camner, P.A.
10.1** 1994 Non-Statutory Stock Option Plan
10.2** Deferred Compensation Plan
10.3** Office Lease Agreement dated October 8, 1986 by and between
Centrum Pembroke, Inc. and Flamingo Bank.
10.4** Lease dated as of July 15, 1992 between Konrad Ulmer and
Pointe Savings Bank
10.5** Lease Agreement dated January 23, 1995 by and between
Hollywood Associates VI and Pointe Bank
10.6** Credit Agreement dated August 18, 1997 between Independent
Bankers' Bank of Florida and Pointe Bank
10.7** Credit Agreement dated October 14, 1997 between SunTrust
Bank/Miami, N.A. and Pointe Bank
10.8** Agreement for Advances and Security Agreement with Blanket
Floating Lien dated November 24, 1997 between Pointe Bank
and the Federal Home Loan Bank of Atlanta
10.9** Equipment Sales and Software License Agreements between
Information Technology, Inc. and Pointe Financial
Corporation
10.10** Master Equipment Lease Agreement dated May 7, 1997 between
Leasetec Corporation and Pointe Financial Corporation
10.11** Letter Agreement dated March 9, 1995 between Pointe
Financial Corporation and R. Carl Palmer, Jr.
10.12** 1998 Incentive Compensation and Stock Award Plan
21.1** Subsidiaries of the Registrant
23.1** Consent of Stuzin and Camner, P.A. (included in Exhibit 5.1)
23.2** Consent of Hacker, Johnson, Cohen & Grieb PA
24** Power of Attorney
27** Financial Data Schedule
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* To be filed by amendment.
** Previously filed.
================================================================================
POINTE FINANCIAL CORPORATION
(a Florida corporation)
869,565 Shares of Common Stock
PURCHASE AGREEMENT
Dated: _______________, 1998
================================================================================
<PAGE>
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Table of Contents
Page
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SECTION 1. Representations and Warranties................................................... 2
(a) Representations and Warranties by the Company........................... 2
(i) Compliance with Registration Requirements.................... 2
(ii) Independent Accountants...................................... 3
(iii) Financial Statements......................................... 3
(iv) No Material Adverse Change In Business....................... 3
(v) Good Standing of the Company................................. 3
(vi) Good Standing of Subsidiaries................................ 4
(vii) Capitalization............................................... 4
(viii) Authorization and Description of Securities.................. 4
(ix) Absence of Defaults and Conflicts............................ 4
(x) Absence of Labor Dispute..................................... 5
(xi) Absence of Proceedings....................................... 5
(xii) Accuracy of Exhibits......................................... 5
(xiii) Possession of Intellectual Property.......................... 6
(xiv) Absence of Further Requirements.............................. 6
(xv) Possession of Licenses and Permits........................... 6
(xvi) Authorization of Agreement................................... 6
(xvii) Membership in Federal Reserve System;
Deposit Insurance............................................ 7
(xviii) Compliance With Applicable Laws.............................. 7
(xix) Title to Property............................................ 7
(xx) Registration Rights.......................................... 7
(xxi) Warrants, Options and Other Rights........................... 7
(xxii) Investment Company Act....................................... 7
(xxiii) Environmental Laws........................................... 7
(xxiv) Tax Matters.................................................. 8
(xxv) Insurance.................................................... 8
(xxvi) Accounting Controls.......................................... 8
(xxvii) Fees......................................................... 8
(xxviii) Lock-Up Agreements........................................... 8
(xxix) Use of Prospectus............................................ 8
(xxx) Compliance With Cuba Act..................................... 9
(xxxi) Stock Split.................................................. 9
(xxxii) Conversion of Preferred Stock................................ 9
(b) Officer's Certificates.................................................. 9
SECTION 2. Sale and Delivery to Underwriters; Closing....................................... 9
(a) Initial Securities...................................................... 9
(b) Option Securities....................................................... 9
(c) Payment................................................................. 9
(d) Denominations; Registration............................................. 10
SECTION 3. Covenants of the Company......................................................... 10
(a) Compliance with Securities Regulations
and Commission Requests................................................. 10
(b) Filing of Amendments.................................................... 11
<PAGE>
(c) Delivery of Registration Statements..................................... 11
(d) Delivery of Prospectuses................................................ 11
(e) Continued Compliance with Securities Laws............................... 11
(f) Blue Sky Qualifications................................................. 11
(g) Rule 158................................................................ 12
(h) Use of Proceeds......................................................... 12
(i) Listing................................................................. 12
(j) Restriction on Sale of Securities....................................... 12
(k) Reporting Requirements.................................................. 12
(l) Compliance with Rule 463................................................ 12
SECTION 4. Payment of Expenses.............................................................. 12
(a) Expenses................................................................ 12
(b) Termination of Agreement................................................ 13
SECTION 5. Conditions of Underwriters' Obligations.......................................... 13
(a) Effectiveness of Registration Statement................................. 13
(b) Opinion of Counsel for Company.......................................... 13
(c) Opinion of Counsel for Underwriters..................................... 13
(d) Officer's Certificate................................................... 13
(e) Accountant's Comfort Letter............................................. 14
(f) Bring-Down Comfort Letter............................................... 14
(g) Approval of Listing..................................................... 14
(h) No Objection............................................................ 14
(i) Lock-up Agreements...................................................... 14
(j) Additional Documents.................................................... 14
(k) Conditions to Purchase of Option Securities............................. 14
(i) Officer's Certificate........................................ 14
(ii) Opinion of Counsel for Company............................... 15
(iii) Opinion of Counsel for Underwriters.......................... 15
(iv) Bring-Down Comfort Letter.................................... 15
(l) Termination of Agreement................................................ 15
SECTION 6. Indemnification.................................................................. 15
(a) Indemnification of Underwriters......................................... 15
(b) Indemnification of Company, Directors and Officers...................... 16
(c) Actions Against Parties; Notification................................... 16
(d) Settlement Without Consent if Failure to Reimburse...................... 16
SECTION 7. Contribution..................................................................... 17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery................... 18
SECTION 9. Termination of Agreement......................................................... 18
(a) Termination; General.................................................... 18
(b) Liabilities............................................................. 18
SECTION 10. Default by One or More of the Underwriters....................................... 18
SECTION 11. Notices.......................................................................... 19
ii
<PAGE>
SECTION 12. Parties.......................................................................... 19
SECTION 13. Governing Law And Time........................................................... 19
SECTION 14. Effect of Headings............................................................... 19
</TABLE>
iii
<PAGE>
869,565 Shares
POINTE FINANCIAL CORPORATION
(a Florida corporation)
Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
------------------
____________, 1998
KEEFE, BRUYETTE & WOODS, INC.
MCGINN, SMITH & CO., INC.
as Representatives of the several Underwriters
c/o Keefe, Bruyette & Woods, Inc.
Two World Trade Center
New York, New York 10048
Dear Sirs:
Pointe Financial Corporation, a Florida corporation (the "Company"),
confirms its agreement with Keefe, Bruyette & Woods, Inc. ("KBW"), McGinn, Smith
& Co. Inc. ("McGinn Smith") and each of the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
KBW and McGinn Smith are acting as representatives (in such capacity, KBW and
McGinn Smith shall hereinafter be referred to as the "Representatives"), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective numbers of shares of Common Stock,
par value $.01 per share, of the Company ("Common Stock") set forth in said
Schedule A, and with respect to the grant by the Company to the Underwriters,
acting severally and not jointly, of the option described in Section 2(b) hereof
to purchase all or any part of 130,435 additional shares of Common Stock to
cover over-allotments, if any. The aforesaid 869,565 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 130,435 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form SB-2 (No. 333-49835) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of
<PAGE>
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company has
elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare
and file a term sheet (a "Term Sheet") in accordance with the provisions of Rule
434 and Rule 424(b). The information included in such prospectus or in such Term
Sheet, as the case may be, that was omitted from such registration statement at
the time it became effective but that is deemed to be part of such registration
statement at the time it became effective (a) pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or (b) pursuant to paragraph (d)
of Rule 434 is referred to as "Rule 434 Information." Each prospectus used
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto and schedules thereto at
the time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus in the form
first furnished to the Underwriters for use in connection with the offering of
the Securities is herein called the "Prospectus." If Rule 434 is relied on, the
term "Prospectus" shall refer to the preliminary prospectus dated June 5, 1998
together with the Term Sheet and all references in this Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any Term Sheet or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, and as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (as hereinafter defined) (and,
if any Option Securities are purchased, at the Date of Delivery (as
hereinafter defined)), the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the Prospectus nor any
2
<PAGE>
amendments or supplements thereto, at the time the Prospectus or any
such amendment or supplement was issued and at the Closing Time (and,
if any Option Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If Rule 434 is used, the Company
will comply with the requirements of Rule 434 and the Prospectus shall
not be "materially different," as such term is used in Rule 434, from
the prospectus included in the Registration Statement at the time it
became effective. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through KBW expressly for use in the Registration Statement or
Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus
delivered to the Underwriters for use in connection with this offering
was identical to the electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, together with the
related schedule and notes, present fairly the financial position of
the Company and its consolidated subsidiaries at the dates indicated
and the statement of income, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
except as otherwise stated in the Registration Statement, said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectus have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement.
(iv) No Material Adverse Change In Business. Since the respective
dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(v) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Florida and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform
its obligations under this Agreement;
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and the Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended.
(vi) Good Standing of Subsidiaries. Each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus
and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not, individually
or in the aggregate, have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding capital stock of each
such subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity; none of the outstanding shares of capital stock of any
subsidiary was issued in violation of the preemptive or similar rights
of any stockholder of such corporation arising by operation of law,
under the charter or by-laws of any subsidiaries or under any agreement
to which the Company or any subsidiary is a party. The only active
subsidiary of the Company is Pointe Bank, a Florida state chartered
bank (the "Bank"); the Company's other subsidiary, Pointe Financial
Services, Inc. ("PFS") is inactive. Except for the shares of capital
stock of the Bank and PFS owned by the Company, neither the Company,
the Bank or PFS owns any shares of stock or any other equity securities
of any corporation or has any equity interest in any firm, partnership,
association or other entity, except as described in by the Prospectus.
(vii) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or
options referred to in the Prospectus). The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
(viii) Authorization and Description of Securities. The Securities
to be purchased by the Underwriters from the Company have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; the Common
Stock conforms to all statements relating thereto contained in the
Prospectus and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will be
subject to personal liability by reason of being such a holder; and the
issuance and sale of the Securities by the Company is not subject to
the preemptive or other similar rights of any securityholder of the
Company.
(ix) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, and
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which violation or default, singly or in the aggregate, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise; and the execution,
delivery and performance of this Agreement, the consummation of the
transactions contemplated herein and compliance by the Company with its
obligations hereunder (including the use of the proceeds from the sale
of the Securities as described in the Prospectus under the caption "Use
of Proceeds"), as are applicable to the Company have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment
Event (as defined below) under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any subsidiaries of the Company pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which it or any of them may be bound,
or to which any of the property or assets of the Company or any of its
subsidiaries is subject and which breach or default singly or in the
aggregate, would materially and adversely affect the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any subsidiaries
of the Company or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its subsidiaries or any of their assets or
properties and which violation, singly or in the aggregate, would
materially and adversely affect the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise. As used herein, a
"Repayment Event" means any event or condition which gives the holder
of any note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiaries of the Company.
(x) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the knowledge
of the Company, is imminent.
(xi) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries which is required to be disclosed in the Registration
Statement, or which might reasonably be expected to result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of this Agreement or
the performance by the Company of its obligations hereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a material adverse change in the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(xii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits thereto by
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the 1933 Act or by the 1933 Act Regulations which have not been so
described and filed as required.
(xiii) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, the
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "patent and
proprietary rights") presently employed by them in connection with the
business now operated by them as described in the Prospectus, except
where lack thereof would not result in a material adverse change in the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any patent or
proprietary rights or of any facts or circumstances which would render
any patent and proprietary rights invalid or inadequate to protect the
interest of the Company therein, and which infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in
any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(xiv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation by it of the
transactions contemplated by this Agreement, except such as have been
already obtained or as may be required under the 1933 Act or the 1933
Act Regulations or state securities laws.
(xv) Possession of Licenses and Permits. The Company and its
subsidiaries possess such certificates, authorities, permits, licenses,
approvals, consents and other authorizations (collectively,
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full
force and effect would not have a material adverse effect on the
condition, financial or otherwise, earnings, business affairs or
business prospects of the Company and its subsidiaries considered as
one enterprise; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect the condition, financial
or otherwise, or the earnings, business affairs or business prospects
of the Company and its subsidiaries considered as one enterprise.
(xvi) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
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(xvii) Membership in Federal Reserve System; Deposit Insurance. The
Bank is a member in good standing of the Federal Reserve System and its
deposit accounts are insured by the Bank Insurance Fund of the FDIC in
accordance with the applicable provisions of the Federal Deposit
Insurance Act and the rules and regulations of the FDIC, and no
proceeding for the termination or revocation of such insurance is
pending or, to the knowledge of the Company, threatened.
(xviii) Compliance With Applicable Laws. Except as set forth in the
Prospectus, the Company and its subsidiaries are in compliance in all
material respects with all applicable laws, statutes, ordinances, rules
or regulations, the violation of which, individually or in the
aggregate, would be reasonably expected to have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xix) Title to Property. The Company and its subsidiaries have good
and marketable title to all properties (real and personal) owned by the
Company and its subsidiaries, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Prospectus or (b) do not,
singly or in the aggregate, materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company or its subsidiaries; and all properties
held under lease by the Company or its subsidiaries are held under
valid, subsisting and enforceable leases.
(xx) Registration Rights. There are no persons with registration or
other similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxi) Warrants, Options and Other Rights. Except as disclosed in
the Prospectus, there are no outstanding options, warrants, or other
rights calling for the issuance of, and no commitments, plans or
arrangements to issue, any shares of capital stock of the Company or
any of its subsidiaries or any security convertible into or
exchangeable for capital stock of the Company or any of its
subsidiaries.
(xxii) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus under the caption "Use of Proceeds" will not be, an
"investment company" or an entity "controlled" by an "investment
company", as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(xxiii) Environmental Laws. Except as described in the Registration
Statement and except as would not, individually or in the aggregate,
result in a material adverse effect, (A) neither the Company nor any of
its subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries
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have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened, administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or
proceedings relating to any Environmental Law against the Company or
any of its subsidiaries and (D) there are no events or circumstances
that might reasonably be expected to form the basis of an order for
cleanup or remediation, or an action, suit or proceeding by any private
party or governmental body or agency, against or affecting the Company
or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxiv) Tax Matters. The Company and its subsidiaries have filed all
federal, state, local and foreign tax returns that are required to be
filed or have duly requested extensions thereof and have paid all taxes
required to be paid by any of them and any related assessments, fines
or penalties, except for any such tax, assessment, fine or penalty that
is being contested in good faith and by appropriate proceedings; and
adequate charges, accruals and reserves have been provided for in the
financial statements referred to in Section 1(a)(iii) above in respect
of all federal, state, local and foreign taxes for all periods as to
which the tax liability of the Company or any of its subsidiaries has
not been finally determined or remains open to examination by
applicable taxing authorities.
(xxv) Insurance. The Company and its subsidiaries carry or are
entitled to the benefits of insurance in such amounts and covering such
risks as is generally maintained by companies of established repute
engaged in the same or similar business, and all such insurance is in
full force and effect.
(xxvi) Accounting Controls. The Company and its subsidiaries
maintain a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general and specific authorizations; (ii)
transactions are recorded as necessary to permit preparations of
financial statements in conformity with GAAP and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorizations; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxvii) Fees. Other than as contemplated by this Agreement, there
is no broker, finder or other party that is entitled to receive from
the Company any brokerage or finder's fee or any other fee, commission
or payment as a result of the transactions contemplated by this
Agreement.
(xxviii) Lock-Up Agreements. The Company has obtained and delivered
to the Representatives the agreements of the persons and entities named
in Schedule B annexed hereto to the effect that each such person will
not, for a period of 180 days from the date hereof and except as
otherwise provided therein, without the prior written consent of the
Representatives, directly or indirectly, offer to sell, grant any
option for the sale of, or otherwise dispose of, any shares of Common
Stock or any securities convertible into or exercisable for Common
Stock owned by such person or entity or with respect to which such
person has the power of disposition.
(xxix) Use of Prospectus. The Company has not distributed and,
prior to the later to occur of (i) the Closing Time and (ii) completion
of the distribution of the Securities, will not distribute any
prospectus (as such term is defined in the 1933 Act and the 1933 Act
Regulations) in connection with the offering and sale of the Securities
other than the Registration Statement,
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any preliminary prospectus, the Prospectus or other materials, if any,
permitted by the 1933 Act or by the 1933 Act Regulations and approved
by the Representatives.
(xxx) Compliance With Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida Statutes, and the rules and
regulations thereunder (collectively, the "Cuba Act") or is exempt
therefrom.
(xxxi) Stock Split. The Company's three-for-two Common Stock split
effected in the form of a stock dividend (the "Stock Dividend") issued
to shareholders of record as of February 27, 1998 has been duly and
validly authorized by all corporate and shareholder action and the
Stock Dividend has been duly and validly paid by the Company.
(xxxii) Conversion of Preferred Stock. All of the Company's Series
A Preferred Stock have been duly and validly converted into shares of
Common Stock.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company to
each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule C, the number of
Initial Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the Underwriters, severally
and not jointly, to purchase up to an additional 130,435 shares of Common Stock
at the price per share set forth in Schedule C, less an amount per share equal
to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities. The option hereby
granted will expire 30 days after the date hereof and may be exercised in whole
or in part from time to time only for the purpose of covering over-allotments
which may be made in connection with the offering and distribution of the
Initial Securities upon notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several Underwriters are
then exercising the option and the time and date of payment and delivery for
such Option Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Representatives, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such
adjustments as the Representatives in their discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Brown &
Wood LLP, One World Trade Center, New York 10048, or at such other place as
shall be agreed upon by the Representatives and the Company, at
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9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices of Brown & Wood LLP, or at such other place as shall be agreed upon by
the Representatives and the Company, on each Date of Delivery as specified in
the notice from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Initial Securities and the Option Securities, if any, which it has agreed to
purchase. KBW, individually and not as representative of the Underwriters, may
(but shall not be obligated to) make payment of the purchase price for the
Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the
relevant Date of Delivery, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial
Securities and the Option Securities, if any, shall be in such denominations and
registered in such names as the Representatives may request in writing at least
one full business day before the Closing Time or the relevant Date of Delivery,
as the case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
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(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
will furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of
the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the Prospectus
(as amended or supplemented) as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendments or supplements as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company will furnish to the
Underwriters such number of copies of such amendments or supplements as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself
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to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company will file such statements and reports as may be required
by the laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the effective date of the Registration
Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(i) Listing. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and will
file with the Nasdaq National Market all documents and notices required by the
Nasdaq National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market.
(j) Restriction on Sale of Securities. During a period of 180 days from
the date of the Prospectus, the Company will not, without the prior written
consent of KBW, (i) directly or indirectly, offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder and (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) Compliance with Rule 463. The Company will report the use of
proceeds from the sale of the Securities as required pursuant to Rule 463 of the
1933 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the printing
and filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale and
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any capital
duties, stamp duties and stock or other transfer taxes payable upon the sale of
the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors,
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(v) the qualification of the Securities under securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities and (ix) the
filing fees incident to, and the fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Securities
and (x) the fees and expenses incurred in connection with the inclusion of the
Securities in the Nasdaq National Market.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company herein contained, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
shall have become effective not later than 5:30 P.M. on the date hereof, or with
the consent of the Representatives, at a later time and date, not later,
however, than 5:30 P.M. on the first business day following the date hereof, or
at such later time and date as may be approved by a majority in interest of the
several Underwriters; and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated threatened or, to the knowledge of
the Company, contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. If the Company has
elected to rely upon Rule 430A of the 1933 Act Regulations, the price of the
Securities and any price-related information previously omitted from the
effective Registration Statement pursuant to such Rule 430A shall have been
transmitted to the Commission for filing in accordance with Rule 424(b) of the
1933 Act Regulations within the prescribed time period and prior to Closing Time
the Company shall have provided evidence satisfactory to the Representatives of
such timely filing, or a post-effective amendment providing such information
shall have been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations.
(b) Opinion of Counsel for Company. At the Closing Time the
Representatives shall have received the opinion, dated as of the Closing Time,
of Stuzin & Camner, P.A., counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A hereto and to such further effect as counsel to the Underwriters
may reasonably request
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Brown & Wood llp, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters in
form and substance satisfactory to the Underwriters.
(d) Officer's Certificate. At the Closing Time there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material
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adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1 hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission. As used in this Section 5(c) the term "Prospectus" means the
Prospectus in the form first used by the Underwriters to confirm sales of the
Securities.
(e) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from Hacker, Johnson, Cohen &
Grieb PA a letter dated such date, in form and substance satisfactory to the
Representatives containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(f) Bring-Down Comfort Letter. At the Closing Time the Representatives
shall have received from Hacker, Johnson, Cohen & Grieb PA a letter, dated as of
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (e) of this Section, except that the specified
date referred to shall be a date not more than three days prior to Closing Time.
(g) Approval of Listing. At the Closing Time the Securities shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(h) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(i) Lock-up Agreements. At the date of this Agreement, the
Representatives shall have received an agreement substantially in the form of
Exhibit B hereto signed by each of the persons named in Schedule B hereto.
(j) Additional Documents. At Closing Time and at each Date of Delivery
counsel for the Underwriters shall have been furnished with such documents and
opinions as they may require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in form and
substance to the Representatives and counsel for the Underwriters.
(k) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company contained herein and the statements in any certificates furnished
by the Company hereunder shall be true and correct as of each Date of Delivery
and, at the relevant Date of Delivery, the Representatives shall have received:
(i) Officer's Certificate. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the
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Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery.
(ii) Opinion of Counsel for Company. The opinion of Stuzin &
Camner, P.A., counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iii) Opinion of Counsel for Underwriters. The opinion of Brown &
Wood LLP, counsel for the Underwriters, dated such Date of Delivery,
relating to the Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(c) hereof.
(iv) Bring-Down Comfort Letter. A letter from Hacker, Johnson,
Cohen & Grieb PA, in form and substance satisfactory to the
Representatives and dated such Date of Delivery, substantially the same
in form and substance as the letter furnished to the Representatives
pursuant to Section 5(f) hereof, except that the "specified date" in
the letter furnished pursuant to this paragraph shall be a date not
more than four days prior to such Date of Delivery.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the information deemed
to be part of the Registration Statement pursuant to Rule 430A(b) of
the 1933 Act Regulations, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus, including the
Prospectus (or any amendment or supplement thereto), or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to
Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
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<PAGE>
(iii) against any and all expense whatsoever, as incurred
(including, subject to the third sentence of Section 6(c) hereof, the
fees and disbursements of counsel chosen by KBW), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into
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<PAGE>
more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover.
The relative fault of the Company on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the Bank
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or elsewhere, any outbreak of hostilities
or escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representatives, impracticable to market the Securities
or to enforce contracts for the sale of the Securities, or (iii) if trading in
the Common Stock has been suspended or limited by the Commission or Nasdaq, or
if trading generally on the American Stock Exchange or the New York Stock
Exchange or in Nasdaq has been suspended or limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or Florida authorities. As used
in this Section 9(a), the term "Prospectus" means the Prospectus in the form
first used by the Underwriters to confirm sales of the Securities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect. SECTION 1Default by One or More of the Underwriters. If one or more of
the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and
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<PAGE>
not jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of
Securities to be purchased on such date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time or a Date of Delivery for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at c/o Keefe, Bruyette &
Woods, Inc., Two World Trade Center, New York, New York 10048, attention of
Emmett J. Daly, Executive Vice President; notices to the Company shall be
directed to it at 21845 Powerline Road, Boca Raton, Florida 33433, attention of
R. Carl Palmer, Jr., President and Chief Executive Officer.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the Underwriters and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE. SPECIFIED TIMES OF DAY REFER
TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction thereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
POINTE FINANCIAL CORPORATION
By:________________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
KEEFE, BRUYETTE & WOODS, INC.
MCGINN, SMITH & CO., INC.
By: KEEFE, BRUYETTE & WOODS, INC.
By:__________________________________________
Title:
For themselves and as representatives of
the several Underwriters named in
Schedule A hereto.
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SCHEDULE A
Number of
Name of Underwriter Initial Securities
------------------- ------------------
Keefe, Bruyette & Woods, Inc................................
McGinn, Smith & Co., Inc.................................... --------
Total....................................................... 869,565
Sch A-1
<PAGE>
SCHEDULE B
LIST OF PERSONS SUBJECT TO SECTION 1(a)(xxviii) OF THE PURCHASE AGREEMENT WHO
ARE REQUIRED TO DELIVER A LETTER SUBSTANTIALLY IN
THE FORM OF EXHIBIT B TO THE PURCHASE AGREEMENT
Roberto Kassin
Morris Massry
Timothy McGinn
R. Carl Palmer, Jr.
Beverly P. Chambers
Bradley R. Meredith
Dennis Read
Steven Elias
D. Richard Mead
Parker D. Thomson
Sch B-1
<PAGE>
SCHEDULE C
POINTE FINANCIAL CORPORATION
869,565 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering prices per share for the Securities,
determined as provided in said Section 2, shall be $____________.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $__________, being an amount equal to the initial
public offering price set forth above less $___________ per share; PROVIDED that
the purchase price per share for any Option Securities purchased upon the
exercise of the over-allotment option described in Section 2(b) shall be reduced
by amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial Securities but not payable on the Option
Securities.
Sch C-1
<PAGE>
Exhibit A
FORM OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Florida.
2. The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and to enter into and perform its obligations under the
Purchase Agreement.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise
4. The Company is duly registered as a bank holding company under the
bank Holding Company Act of 1956, as amended. The activities of the Bank are
permitted to subsidiaries of a bank holding company.
5. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectus in the column entitled "As Adjusted" under the
caption "Capitalization"; the shares of issued and outstanding Common Stock have
been duly authorized and validly issued and fully paid and non-assessable; none
of the outstanding shares of Common Stock was issued in violation of the
preemptive or other similar rights of any securityholder of the Company arising
by operation of law, under the charter or by-laws of the Company or under any
agreement to which the Company or the Bank is a party; and all of the Company's
Series A Preferred Stock has been duly and validly converted into shares of
Common Stock.
6. The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreement and, when issued and
delivered by the Company pursuant to the Purchase Agreement against payment of
the consideration set forth in the Purchase Agreement, will be validly issued
and fully paid and non-assessable and no holder of the Securities is or will be
subject to personal liability by reason of being such a holder. The Common Stock
conforms to all statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments defining the
same.
7. The issuance of the Securities is not subject to preemptive or other
similar rights arising by operation of law, under the charter or by-laws of the
Company or, to the best of their knowledge and information, otherwise.
8. Each of the Company's subsidiaries has been duly incorporated and
is validly existing in good standing under the jurisdiction of its organization,
has corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and each of
the Company's subsidiaries is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise; all
of the respective issued and outstanding capital stock of each of the Company's
subsidiaries has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of their knowledge, is owned by the Company,
directly or through a subsidiary, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity;
<PAGE>
and none of such shares was issued in violation of the preemptive rights of any
stockholder or warrantholder of the Bank. To the best of our knowledge, the
Company does not have any subsidiaries other than the Bank and PFS. To the best
of our knowledge, except for the shares of capital stock of the Bank and PFS
owned by the Company, neither the Company, the Bank nor PFS owns any shares of
stock or any other equity securities of any corporation or has any equity
interest in any firm, partnership, association or other entity except as
described in the Prospectus.
9. Except as disclosed in or specifically contemplated by the
Prospectus, to the best of such counsel's knowledge, there are no outstanding
options, warrants or other rights calling for the issuance of, and no
commitments, obligations, plans or arrangements to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable for
capital stock of the Company. The outstanding stock options relating to the
Company's Common Stock have been duly authorized and validly issued and the
description thereof contained in the Prospectus is accurate in all material
requests.
10. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
11. The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectus pursuant to Rule 424(b) has been made in the manner and within
the time period required by Rule 424(b); and, to the best of our knowledge, no
Rule 462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or threatened
by the Commission.
12. The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information and the Rule 434 Information, as
applicable, the Prospectus, and each amendment or supplement to the Registration
Statement and Prospectus, as of their respective effective or issued dates
(other than the financial statements and supporting schedules included therein
or omitted therefrom, as to which we need express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
13. If Rule 434 has been relied upon, the Prospectus was not
"materially different," as such term is used in Rule 434, from the prospectus
included in the Registration Statement at the time it became effective.
14. The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company and the
requirements of the Nasdaq National Market.
15. There is not pending or, to the best of our knowledge, threatened
any action, suit, proceeding, inquiry or investigation, to which the Company or
the Bank is a party, or to which the property of the Company or any of its
subsidiaries is subject, before or brought by any court or governmental agency
or body, which might reasonably be expected to result in any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
Purchase Agreement or the performance by the Company of its obligations
hereunder or any of the other transactions contemplated by the Registration
Statement; and all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or that affect any of their
respective properties that are not described in the Prospectus, including
ordinary routine litigation incidental to the business, could not reasonably be
expected to result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
16. The information in the Prospectus under "Risk Factors--Regulation
and Supervision," "Risk Factors--Restrictions on Ability to Pay Dividends,"
"Regulation and Supervision," "Description of Capital Stock," and "Shares
Eligible for Future Sale," and in the Registration Statement under items 14
2
<PAGE>
and 15, to the extent that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has been reviewed by
them and complies in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations; to the best of such counsel's knowledge, there are
no statutes or regulations, and no legal or governmental actions, suits or
proceedings pending or threatened against the Company or any of its subsidiaries
that are required to be described in the Prospectus that are not described as
required.
17. To the best of my/our knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
18. All descriptions in the Prospectus of contracts and other documents
to which the Company or any of its subsidiaries are a party are accurate in all
material respects; to the best of such counsel's knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed as exhibits thereto and the descriptions thereof or
references thereto comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations.
19. To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and no default by the
Company or any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectus or filed or incorporated by reference as an exhibit to the
Registration Statement.
20. No filing with, or authorization, approval, consent or order of any
court or governmental authority or agency (other than under the 1933 Act and the
1933 Act Regulations or as may be required under the securities or blue sky laws
of the various states, as to which such counsel need express no opinion) is
required in connection with the due authorization, execution and delivery by the
Company of the Purchase Agreement or for the offering, issuance, sale or
delivery of the Securities; and the execution, delivery and performance of the
Purchase Agreement and the consummation of the transactions contemplated herein
and compliance by the Company with its obligations hereunder (including the use
of the proceeds from the sale of the Securities as described in the Prospectus
under the caption "Use Of Proceeds") will not, whether with or without the
giving of notice or lapse of time or both, conflict with or constitute a breach
of, or default or Repayment Event under or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which or any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject which would, in any such case
or in the aggregate, be material to the Company and its subsidiaries considered
as one enterprise, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any of its subsidiaries,
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its subsidiaries or any
of their respective properties, assets or operations.
21. To the best of my/our knowledge, there are no persons with
registration or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under the
1933 Act.
22. The Company is not, and (assuming application by the Company of the
net proceeds of the sale of the Shares in the manner described in the
Prospectus) will not become, as a result of the consummation of the transactions
contemplated by the Agreement, required to register as an investment company
under the Investment Company Act of 1940, as amended.
3
<PAGE>
23. Nothing has come to our attention that would lead us to believe
that the Registration Statement or any amendment thereto, including the Rule
430A Information and Rule 434 Information (if applicable) (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time such Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto (except for financial
statements and schedules and other financial data included therein or omitted
therefrom, as to which we make no statement), at the time the Prospectus was
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
4
<PAGE>
Exhibit B
June __, 1998
KEEFE, BRUYETTE & WOODS, INC.
MCGINN, SMITH & CO., INC.
as Representatives of the several Underwriters
c/o Keefe, Bruyette & Woods, Inc.
Two World Trade Center
New York, New York 10048
Re: Proposed Public Offering by Pointe Financial Corporation
--------------------------------------------------------
Dear Sirs:
The undersigned, an officer and/or director of Pointe Financial
Corporation, a Florida corporation (the "Company"), understands that Keefe,
Bruyette & Woods, Inc. and McGinn, Smith & Co., Inc., acting as representatives
(the "Representatives") of the underwriters, propose to enter into a Purchase
Agreement (the "Purchase Agreement") with the Company providing for the public
offering of shares (the "Securities") of the Company's common stock, par value
$.01 per share (the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as an officer and/or director of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned agrees with each
underwriter to be named in the Purchase Agreement that, during a period of 180
days from the date of the Purchase Agreement, the undersigned will not, without
the prior written consent of the Representatives, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of Common Stock or
any securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file or cause to be filed any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction is to be settled by delivery
of Common Stock or other securities, in cash or otherwise.
Very truly yours,
Signature:__________________________
Print Name:_________________________
