Exhibit 10.6
FLORIDA BANKS CAPITAL TRUST I
FLORIDA BANKS, INC.
SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (this "Agreement") made among Florida Banks
Capital Trust I (the "Trust"), a statutory trust, Florida Banks, Inc., a Florida
corporation, with its principal offices located at 0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Company" and, collectively with the Trust, the
"Offerors"), and Bear Xxxxxxx Securities Corp. (the "Purchaser").
RECITALS:
A. The Trust desires to issue Four Thousand (4,000) of its Trust Preferred
Securities (the "Capital Securities"), liquidation amount $1,000 per Capital
Security, representing an undivided beneficial interest in the assets of the
Trust (the "Offering"), to be issued pursuant to an Amended and Restated Trust
Agreement (the "Trust Agreement"), by and among the Company as depositor, the
Trustees of the Trust (as defined therein, and the several Holders (as defined
therein), which Capital Securities are to be guaranteed by the Company with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the terms of a Guarantee Agreement between the Company and Xxxxx
Fargo Bank, National Association, as trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be combined
with the proceeds from the sale by the Trust to the Company of its common
securities, and will be used by the Trust to purchase an equivalent amount of
the Floating Rate Junior Subordinated Deferrable Interest Debentures of the
Company (the "Debt Securities") to be issued by the Company pursuant to an
indenture to be executed by the Company and Xxxxx Fargo Bank, National
Association, as trustee (the "Indenture"); and
C. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Subscription Agreement, the Purchaser
hereby agrees to purchase from the Trust Four Thousand (4,000) Capital
Securities at a price equal to $1,000 per Capital Security (the "Purchase
Price") and the Trust agrees to sell such Capital Securities to the Purchaser
for said Purchase Price. The rights and preferences of the Capital Securities
are set forth in the Trust Agreement. The Purchase Price is payable in
immediately available funds on June 27, 2002 (the "Closing Date"). The Offerors
shall provide the Purchaser wire transfer instructions no later than 5 days
prior to the Closing Date.
1.2. The certificate for the Capital Securities shall be delivered by the
Trust on the Closing Date to the Purchaser or its designee.
1.3. An Agreement, effective as of June 27, 2002, among the Offerors and
the Placement Agent identified therein (the "Placement Agreement") includes
certain representations and warranties, covenants and conditions to closing and
certain other matters governing the Offering. The Placement Agreement is hereby
incorporated by reference into this Agreement and the Purchaser shall be
entitled to all the benefits under the Placement Agreement and shall be entitled
to enforce such Placement Agreement as fully as if the Purchaser were a party to
such Placement Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that the Capital
Securities, the Debt Securities and the Guarantee (i) have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
other applicable securities law, (ii) are being offered for sale by the Trust in
transactions not requiring registration under the Securities Act, and (iii) may
not be offered, sold, pledged or otherwise transferred by the Purchaser except
in compliance with the registration requirements of the Securities Act and any
other applicable securities laws, pursuant to an exemption therefrom or in a
transaction not subject thereto.
2.2. The Purchaser represents and warrants that it is purchasing the
Capital Securities for its own account, for investment, and not with a view to,
or for offer or sale in connection with, any distribution thereof in violation
of the Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all times within
its control and subject to its ability to resell such Capital Securities
pursuant to an effective registration statement under the Securities Act or
under Rule 144A or any other exemption from registration available under the
Securities Act or any other securities law.
2.3. The Purchaser has full power and authority to execute and deliver this
Agreement, to make the representations and warranties specified herein, and to
consummate the transactions contemplated herein and it has full right and power
to subscribe for the Capital Securities and perform its obligations pursuant to
this Agreement.
2.4 Such Purchaser believes it has received all the information it
considers necessary or appropriate for deciding whether to purchase the Capital
Securities. Such Purchaser further represents that it has had an opportunity to
ask questions and receive answers from the Offerors regarding the terms and
conditions of the offering of the Capital Securities and the business,
properties, prospects and financial condition of the Offerors.
2.5 Such Purchaser acknowledges that it is able to fend for itself, can
bear the economic risk of its investment, and has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Capital Securities.
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ARTICLE III
MISCELLANEOUS
3.1. Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, or delivered by hand against written receipt therefor, or by
facsimile transmission and confirmed by telephone, to the following addresses,
or such other address as may be furnished to the other parties as herein
provided:
To the Offerors:
Florida Banks, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: T. Xxxxx Xxxxxxx, Xx.
Telecopy: (000) 000-0000
To the Purchaser:
Bear Xxxxxxx Securities Corp.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxxxx
Telecopy: (000) 000-0000
Unless otherwise expressly provided herein, notices shall be deemed to have
been given on the date of mailing, except notice of change of address, which
shall be deemed to have been given when received.
3.2 This Agreement shall not be changed, modified or amended except by a
writing signed by the parties to be charged, and this Agreement may not be
discharged except by performance in accordance with its terms or by a writing
signed by the party to be charged.
3.3 Upon the execution and delivery of this Agreement by the Purchaser,
this Agreement shall become a binding obligation of the Purchaser with respect
to the purchase of Capital Securities as herein provided.
3.4 NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY
OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE TERMS AND
PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF Florida, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
3.5 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
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3.6 This Agreement may be executed in one or more counterparts each of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
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IN WITNESS WHEREOF, this Subscription Agreement is agreed to and accepted
effective June 27, 2002.
Florida Banks, Inc.
By:
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Name:
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Title:
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Florida Banks Capital Trust I
By:
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Name:
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Title:
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Bear, Xxxxxxx & Co. Inc.
By:
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Name:
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Title:
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