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EXHIBIT 1
FLORIDA BANKS, INC.
COMMON STOCK
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UNDERWRITING AGREEMENT
_____________, 1998
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
INTERSTATE/XXXXXXX LANE CORPORATION
As Representatives of the several Underwriters named in Schedule I hereto
c/o The Xxxxxxxx-Xxxxxxxx Company, LLC
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
Florida Banks, Inc., a Florida corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I (the "Underwriters") an aggregate of ________
shares of common stock, par value $.01 per share ("Common Stock"), of the
Company (the "Firm Shares"), and at the election of the Underwriters, subject to
the terms and conditions stated herein, to issue and sell to the Underwriters up
to _______ additional shares of Common Stock (the "Optional Shares") (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof are collectively called the "Shares" ).
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-_____)
(the "Initial Registration Statement") with respect to the Shares,
including a prospectus subject to completion, has been filed by the
Company with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933, as amended (the "Act"), and one or
more amendments to such Initial Registration Statement have been so
filed. After the execution of this Underwriting Agreement (the
"Agreement"), the Company will file with the Commission either (A) if
such Initial Registration Statement, as it may have been amended, has
become effective under the Act and information has been omitted
therefrom in accordance with Rule 430A under the Act, a prospectus in
the
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form most recently included in an amendment to such Initial
Registration Statement with such changes or insertions as are required
by Rule 430A or permitted by Rule 424(b) under the Act and as have been
provided to and approved by the Representatives, or (B) if such Initial
Registration Statement, as it may have been amended, has not become
effective under the Act, an amendment to such Initial Registration
Statement, including a form of prospectus, a copy of which amendment
has been provided to and approved by the Representatives prior to the
execution of this Agreement or (C) if such Initial Registration
Statement, as it may have been amended, has become effective under the
Act and the number of shares to be offered has subsequently been
increased, a registration statement (a "Rule 462(b) Registration
Statement"), filed pursuant to Rule 462(b) under the Act and as has
been provided to and approved by the Representatives. The approval of
the Representatives, as required in this Section 1(i), shall not be
unreasonably withheld by such parties. As used in this Agreement, the
term "Registration Statement" means such Initial Registration
Statement, as amended at the time when it was or is declared effective,
including all financial statement schedules and exhibits thereto
together with any Rule 462(b) Registration Statement and including any
information omitted therefrom pursuant to Rule 430A under the Act and
included in the Prospectus (as hereinafter defined); the term
"Preliminary Prospectus" means each Prospectus subject to completion
included in such Initial Registration Statement or any amendment or
post-effective amendment thereto (including the Prospectus subject to
completion, if any, included in the Registration Statement at the time
it was or is declared effective); and the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b)
under the Act or, if no prospectus is required to be so filed, such
term means the prospectus included in the Registration Statement. For
purposes of the following representations and warranties, to the extent
reference is made to the Prospectus and at the relevant time the
Prospectus is not yet in existence, such reference shall be deemed to
be to the most recent Preliminary Prospectus.
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Company,
threatened by the Commission or the securities authority of any state
or other jurisdiction. If the Registration Statement has become
effective under the Act, no stop order suspending the effectiveness of
the Registration Statement or any part thereof has been issued and, to
the knowledge of the Company, no proceeding for that purpose has been
instituted or threatened or is contemplated by the Commission or the
securities authority of any state or other jurisdiction.
(iii) When any Preliminary Prospectus was filed with the
Commission it (A) contained all statements required to be stated
therein in accordance with, and complied in all material respects with
the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement
or any amendment thereto was or is declared effective, and at each Time
of Delivery (as hereinafter defined), it (A) contained
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or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects
with the requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the
Prospectus or any amendment or supplement thereto is filed with the
Commission pursuant to Rule 424(b) (or, if the Prospectus or such
amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such
amendment or supplement to the Prospectus was or is declared effective)
and at each Time of Delivery, the Prospectus, as amended or
supplemented at any such time, (A) contained or will contain all
statements required to be stated therein in material accordance with,
and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the
Commission thereunder and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this Section 1(iii) do not apply to statements or
omissions made in any Preliminary Prospectus, the Registration
Statement or any amendment thereto or the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically
for use therein. The Company and the Underwriters hereby acknowledge
that the following constitutes the only information furnished in
writing to the Company by the Underwriters specifically for use in any
Preliminary Prospectus, the Registration Statement or the Prospectus,
or any such amendment or supplement: (i) the statements in the last
paragraph on the cover page of the Prospectus; (ii) the statements with
respect to stabilization in the paragraph at the bottom of the inside
front cover page of the Prospectus; and (iii) the statements under the
caption "Underwriting" in the Prospectus.
(iv) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings or contracts
and other documents are materially accurate and fairly present, in all
material respects, the information required to be shown under the Act
and the rules and regulations of the Commission thereunder; and there
are no statutes or legal or governmental proceedings required under the
Act and the rules and regulations of the Commission thereunder to be
described in the Registration Statement or the Prospectus that are not
described as required and no material contracts that are required under
the Act and the rules and regulations of the Commission thereunder to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described
and filed.
(v) Each of the Company, [Interim Acquisition Corp., a
_______________ corporation] ("Subsidiary") and First National Bank of
Tampa, N.A., Tampa, Florida (the "Bank") has been duly incorporated or
duly formed, is validly existing as a corporation or national banking
association, as the case may be, in good standing under the laws of its
jurisdiction of incorporation, association or organization
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and has full power and authority (corporate or other) to own or lease
its properties and conduct its business as described in the
Registration Statement and the Prospectus. The Company is a duly
registered "bank holding company" under the Bank Holding Company Act of
1956, as amended (the "BHC Act"), is in good standing and in full
compliance in all material respects with the BHC Act and the rules and
regulations thereunder. The Subsidiary and the Bank have been duly
incorporated or organized and are validly existing as national banking
associations, as the case may be, in good standing under the laws of
the United States, are members in good standing of the Federal Reserve
System and of the Bank Insurance Fund ("BIF") of the Federal Deposit
Insurance Corporation ("FDIC"). The Company has full power and
authority (corporate and other) to enter into this Agreement and to
perform its obligations hereunder. Each of the Company, the Subsidiary
and the Bank is duly qualified to transact business as a foreign
corporation or association and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, except
where the failure to so qualify would not have a material adverse
effect on the financial condition, results of operations or business of
the Company, the Subsidiary and the Bank, taken as a whole.
(vi) The Company's authorized, issued and outstanding capital
stock is as disclosed in the Prospectus. All of the issued and
outstanding shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
conform to the description of the Common Stock contained in the
Prospectus. None of the issued shares of capital stock of the Company,
Subsidiary or the Bank has been issued or is owned or held in violation
of any preemptive rights of shareholders, and no person or entity
(including any holder of outstanding shares of capital stock of the
Company, Subsidiary or the Bank) has any preemptive or other rights to
subscribe for any of the Shares. As of the First Time of Delivery (as
hereinafter defined), after giving effect to the consummation of the
merger of the Bank with and into the Subsidiary (the "Merger"), all of
the outstanding shares of capital stock and derivative securities
relating thereto of the Bank will have ceased to be outstanding and
will have been exchanged for the consideration set forth in Sections
3.1(c) and 3.4 of the Merger Agreement. Upon completion of the Merger
in the manner described in the Registration Statement, the shares of
Common Stock of the Company to be issued in the Merger will be duly
authorized, validly issued and fully paid and non-assessable. The
description of the Company's and the Bank's stock option, stock bonus
and other stock plans or arrangements, and the options or other rights
granted thereunder, set forth in the Prospectus accurately and fairly
presents the information required to be shown with respect to such
plans, arrangements, options and rights.
(vii) All of the issued and outstanding shares of capital
stock of the Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable and are owned beneficially by the
Company free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting
trusts, equities or claims of any nature whatsoever. Other than the
Subsidiary listed on Exhibit [21.01] to the Registration Statement, the
Company does not own, directly or indirectly, any
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capital stock or other equity securities of any corporation or any
ownership interest in any partnership, joint venture or other
association.
(viii) Except as set forth on Schedule 1(viii) attached
hereto, there are no outstanding (A) securities or obligations of the
Company, the Subsidiary or the Bank convertible into or exchangeable
for any capital stock of the Company, the Subsidiary or the Bank, (B)
warrants, rights or options to subscribe for or purchase from the
Company, the Subsidiary or the Bank any such capital stock or any such
convertible or exchangeable securities or obligations, or (C)
obligations of the Company, the Subsidiary or the Bank to issue any
shares of capital stock, any such convertible or exchangeable
securities or obligations, or any such warrants, rights or options.
(ix) Since the date of the most recent audited financial
statements included in the Prospectus, neither the Company, the
Subsidiary nor the Bank has sustained any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as disclosed in
or contemplated by the Prospectus.
(x) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and other than
as disclosed in or contemplated by the Registration Statement and the
Prospectus, (A) none of the Company, the Subsidiary or the Bank has
incurred any liabilities or obligations, direct or contingent, or
entered into any transactions, not in the ordinary course of business,
that are material to the Company, the Subsidiary and the Bank, (B) none
of the Company, the Subsidiary or the Bank has purchased any of its
outstanding capital stock or declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock, (C) there
has not been any material change in the capital stock, long-term debt
or short-term debt of the Company, the Subsidiary or the Bank, (D)
there has not been any material adverse change or any development
involving a prospective material adverse change in or affecting the
earnings, business, management, properties, assets, rights, operations,
condition (financial or otherwise) or prospects of the Company, the
Subsidiary or the Bank taken as a whole, whether or not occurring in
the ordinary course of business, and (E) there has not been any
material transaction entered into or any material transaction that is
probable of being entered into by the Company or the Subsidiary, other
than transactions in the ordinary course of business and changes and
transactions described in or contemplated by the Registration
Statement.
(xi) The Shares have been duly authorized and, when issued
and delivered against payment therefor as provided herein, will be
validly issued and fully paid and nonassessable and will conform to the
description of the Common Stock contained in the Prospectus; and the
certificates evidencing the Shares comply with all applicable
requirements of Florida law. None of the authorized or outstanding
shares of Common Stock is subject to any preemptive or similar right to
purchase any shares of Common Stock. The Underwriters will receive good
title to the Shares to be issued and
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delivered by the Company hereunder, in good delivery form and free and
clear of all pledges, liens, hypothecations, encumbrances, claims,
security interests, restrictions, agreements, voting trusts and adverse
interests whatsoever. The Shares have been approved for inclusion on
the Nasdaq National Market, subject only to official notice of
issuance.
(xii) There are no contracts, agreements or understandings
between the Company, the Subsidiary or the Bank and any person granting
such person the right to require the Company, the Subsidiary or the
Bank to file a registration statement under the Act with respect to any
securities of the Company, the Subsidiary or the Bank owned or to be
owned by such person or to require the Company, the Subsidiary or the
Bank to include such securities in the securities registered pursuant
to the Registration Statement (or any such right has been effectively
waived) or in any securities being registered pursuant to any other
registration statement filed by the Company, the Subsidiary or the Bank
under the Act.
(xiii) All offers and sales of the Company's, the Subsidiary's
and the Bank's capital stock were at all relevant times duly registered
under the Act or exempt from the registration requirements of the Act
and were duly registered or the subject of an available exemption from
the registration requirements of the applicable state securities or
blue sky laws.
(xiv) Neither the Company, the Subsidiary nor the Bank is, or
with the giving of notice or passage of time or both would be, in
violation of or in default under its Articles of Incorporation,
Articles of Association or Bylaws or other governing organizational
instrument or under any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Company,
the Subsidiary or the Bank is a party or to which any of its properties
or assets are subject and which default has had or which the Company
reasonably expects to have a material adverse effect on the financial
condition, results of operations or business of the Company, the
Subsidiary and the Bank taken as a whole.
(xv) The issue and sale of the Shares and the performance of
this Agreement and the consummation of the transactions herein
contemplated and the Merger will not conflict with, or (with or without
the giving of notice or the passage of time or both) result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which the Company, the
Subsidiary or the Bank is a party or to which any of their respective
properties or assets is subject, nor will such action conflict with or
violate any provision of the Articles of Incorporation, Articles of
Association or Bylaws of the Company, the Subsidiary or the Bank or any
statute, rule or regulation or any order, judgment or decree of any
court or governmental agency or body having jurisdiction over the
Company, the Subsidiary or the Bank or any of their properties or
assets.
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(xvi) The Company, the Subsidiary and the Bank have good and
indefeasible title in fee simple to all real property, if any, and good
title to all personal property owned by them, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects, except such as are disclosed in the Prospectus
or such as do not materially and adversely affect the value of such
property and do not materially interfere with the use made or proposed
to be made of such property by the Company, the Subsidiary and the
Bank; and any real property and buildings held under lease by the
Company, the Subsidiary or the Bank are held under leases which are
valid and enforceable as to the Company, the Subsidiary and the Bank
and, to the Company's knowledge, as to others, with such exceptions as
are disclosed in the Prospectus or are not material and do not
materially interfere with the use made or proposed to be made of such
property and buildings by the Company, the Subsidiary or the Bank.
(xvii) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the sale of
the Shares or the consummation of the transactions contemplated by this
Agreement, except the registration of the Shares under the Act (which,
if the Registration Statement is not effective as of the time of
execution hereof, shall be obtained as provided in this Agreement) and
such as may be required from the National Association of Securities
Dealers, Inc. (the "NASD") and under state securities or blue sky laws
in connection with the offer, sale and distribution of the Shares by
the Underwriters.
(xviii) Except as disclosed on Schedule 1(xviii), there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or, to the Company's knowledge, threatened in
which the Company, the Subsidiary or the Bank is a party or of which
any of its properties or assets are the subject. Neither the Company,
the Subsidiary nor the Bank is in violation of, or in default with
respect to, any statute, rule, regulation, order, judgment or decree.
(xix) Deloitte & Touche, LLP, who have certified certain
financial statements of the Company and its consolidated Subsidiary,
are and were during the periods covered by their reports included in
the Registration Statement and the Prospectus, independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
(xx) The financial statements and schedules (including the
related notes) of the Company, the Subsidiary and the Bank included in
the Registration Statement, the Prospectus or any Preliminary
Prospectus were prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, fairly present the financial condition, results of
operations, cash flows and changes in shareholders' equity of the
Company, the Subsidiary and the Bank, on a consolidated basis, at the
dates and for the periods presented all adjustments necessary for a
fair presentation of results for such period have been made. Except for
the pro forma
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financial statements discussed below, no other financial statements are
required to be included in the Registration Statement. No supporting
schedules are required to be included in the Registration Statement.
The selected financial data, the tables and financial and statistical
data set forth in the Prospectus fairly present, on the basis stated in
the Prospectus, the information included therein on a basis consistent
with that of the audited and pro forma financial statements contained
in the Registration Statement and the books and records of the Company
and the Bank, as applicable. The pro forma combined financial
statements of the Company and the Bank together with the related notes
thereto included in the Prospectus and in the Registration Statement
present fairly the information contained therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly presented on the
pro forma basis described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein. The financial statements and schedules included in
the Registration Statement and the Prospectus conform to the
requirements of Regulation S-X of the Commission applicable thereto and
present fairly the information presented therein for the periods shown.
The statistical information required by Commission Industry Guide 3 to
be included in the Registration Statement and the Prospectus present
fairly the information set forth therein, are in compliance with the
Act, the 1933 Act Regulations, and such Guide 3, and are consistent
with the Company's consolidated financial statements included in the
Registration Statement and the Prospectus. The Company, the Subsidiary
and the Bank have no material contingent obligations that are required
to be disclosed in the Company's or the Bank's financial statements in
accordance with generally accepted accounting principles which have not
been so disclosed in the financial statements included in the
Registration Statement.
(xxi) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes the valid and binding
agreement of the Company enforceable against the Company in accordance
with its terms, subject, as to enforcement, to applicable law limiting
enforcement of indemnification provisions herein, to applicable
bankruptcy, insolvency, reorganization and moratorium laws and other
laws relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles.
(xxii) Neither the Company, the Subsidiary or the Bank nor, to
the knowledge of the Company, any of their respective officers,
directors or other affiliates has (A) taken, directly or indirectly,
any action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares or (B) since the filing of the
Registration Statement (1) sold, bid for, purchased or paid anyone any
compensation for soliciting purchases of, the Shares or (2) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company. The Company, the
Subsidiary, and the Bank and their respective officers, directors and
employees have complied with Section 5 of the Act and
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no one has been authorized by the Company or any person purporting to
act in the name or on behalf of the Company to give any information or
to make any representations or warranties with respect to any matters
described in or incorporated by reference into the Prospectus other
than those contained in the Prospectus.
(xxiii) The Company has obtained for the benefit of the
Company and the Underwriters from each of the Company's and the Bank's
directors, executive officers, and persons listed on Schedule 1(xxiii)
a written agreement that for a period of 180 days from the date of the
Prospectus such director, executive officer or persons listed on
Schedule 1(xxiii) will not, without the prior written consent of The
Xxxxxxxx-Xxxxxxxx Company, LLC, directly or indirectly sell, offer to
sell, contract to sell, solicit an offer to buy, grant any option,
right or warrant for the purchase or sale of, assign, pledge,
distribute or otherwise transfer, dispose of, encumber or reduce any
risk of ownership, (or make any announcement with respect to any of the
foregoing), any shares of Common Stock, or any options, rights,
warrants or other securities convertible into or exercisable or
exchangeable for Common Stock or evidencing any right to purchase or
subscribe for shares of Common Stock, whether or not beneficially owned
by the undersigned, except as provided in Section 2.
(xxiv) Neither the Company, the Subsidiary nor the Bank, nor,
to the knowledge of the Company, any director, officer, agent, employee
or other person associated with or acting on behalf of the Company, the
Subsidiary or the Bank has, directly or indirectly, used any corporate
funds for unlawful contributions, gifts, entertainment or other
unlawful expenses relating to political activity; made any unlawful
payment to foreign or domestic government officials or employees or to
foreign or domestic political parties or campaigns from corporate
funds; violated any provision of the Foreign Corrupt Practices Act of
1977, as amended; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment.
(xxv) (a) The operations of the Company, the Subsidiary and
the Bank with respect to any real property currently leased or owned or
by any means controlled by the Company, the Subsidiary or the Bank (the
"Real Property") are in material compliance with all federal, state and
local laws, ordinances, rules and regulations relating to occupational
health and safety and the environment (collectively, "Laws"); (b) the
Company, the Subsidiary and the Bank have all licenses, permits and
authorizations necessary to operate under all Laws and are in material
compliance with all terms and conditions of such licenses, permits and
authorizations; (c) the Company, the Subsidiary and the Bank have not
authorized or conducted and have no knowledge of the generation,
transportation, storage, use, treatment, disposal or release of any
hazardous substance, hazardous waste, hazardous material, hazardous
constituent, toxic substance, pollutant, contaminant, petroleum
product, natural gas, liquefied gas or synthetic gas defined or
regulated under any environmental law on, in or under any Real
Property; and (d) there is no pending or, to the knowledge of the
Company, threatened claim, litigation or any administrative agency
proceeding, nor has the Company, the Subsidiary or the Bank received
any written or oral notice from any governmental entity
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or third party, that: (A) alleges a violation of any Laws by the
Company, the Subsidiary or the Bank; (B) alleges the Company, the
Subsidiary or the Bank is a liable party under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. ss.
9601 et seq. or any state superfund law; (C) alleges possible
contamination of the environment by the Company, the Subsidiary or the
Bank; or (D) alleges possible contamination of the Real Property.
(xxvi) The Data Processing Services Agreement dated June 1,
1996 among M&I Data Services, a division of the Xxxxxxxx & Xxxxxx
Corporation and Subsidiary (the "Data Processing Agreement"), has been
duly authorized, executed and delivered by the Bank and is enforceable
against the Bank, and to the knowledge of the Company, against the
respective parties to the Data Processing Agreement, in accordance with
its terms, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The
Company, the Subsidiary and the Bank have fulfilled and performed all
of their material obligations (for which performance has become due)
with respect to the Data Processing Agreement, and related agreements,
and the Data Processing Agreement, and related agreements, remain in
full force and effect; and no event has occurred with respect to the
Data Processing Agreement, and related agreements, which has had or
would be reasonably expected to have a material adverse effect on the
business of the Company, the Subsidiary and the Bank, taken as whole.
(xxvii) The Lease Agreement dated June 29, 1995 (the "Lease
Agreement") by and between Bay Villa Developers, Inc., as managing
agent for Riverside Plaza Associates, Inc. (the "Landlord") and Bank
(for purposes of this Section 1(xxvii), the "Tenant"), has been duly
authorized, executed and delivered by the Bank and is enforceable
against the Bank, and to the knowledge of the Company, against the
respective parties to the Lease Agreement, in accordance with its
terms, except to the extent that enforcement thereof may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The
Company, the Subsidiary and the Bank have fulfilled and performed all
of their material obligations (for which performance has become due)
with respect to the Lease Agreement and the Lease Agreement remains in
full force and effect; and no event has occurred with respect to the
Lease Agreement which has had or would reasonably be expected to have a
material adverse effect on the business of the Company, the Subsidiary
and the Bank, taken as a whole.
(xxviii) The Company or the Subsidiary own or the Subsidiary
or the Bank possess, or are licensed or otherwise have the legal right
to utilize, the patents, patent rights, licenses, inventions,
copyrights, know-how, trademarks (including, without limitation, the
right to use the marks "FLORIDA BANKS, INC.", "FLORIDA BANK,
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N.A.", and "FIRST NATIONAL BANK OF TAMPA"), service marks, trade names
and other intangible property (collectively, the "Intellectual Property
Rights") presently employed by them in connection with the business now
operated by them except where the failure to so own or possess such
legal rights could not reasonably be expected to have a material
adverse effect on the business of the Company, the Subsidiary and the
Bank, taken as a whole and none of the Company, the Subsidiary or the
Bank has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any
intellectual property rights or other proprietary rights which,
singularly or in the aggregate, if the subject of an unfavorable final
determination, could reasonably be expected to have a material adverse
effect on the business of the Company, the Subsidiary and the Bank,
taken as a whole.
(xxix) The Company has delivered or made available to you, or
your counsel, prior to the date the Registration Statement was declared
effective copies of all pension, retirement, profit-sharing, deferred
compensation, stock option, employee stock ownership, severance pay,
vacation, bonus or other incentive plans, all other written employee
programs, arrangements or agreements, all medical, vision, dental or
other health plans, all life insurance plans and all other employee
benefit plans or fringe benefit plans, including, without limitation,
"employee benefit plans" as that term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
adopted, maintained, sponsored in whole or in part or contributed to by
the Company, the Subsidiary or the Bank or their respective
predecessors for the benefit of employees, retirees, dependents,
spouses, directors, independent contractors or other beneficiaries and
under which employees, retirees, dependents, spouses, directors,
independent contractors or other beneficiaries are eligible to
participate (collectively, the "Company Benefit Plans").
The Company, the Subsidiary or the Bank (and each of their
respective predecessors that adopted or contributed to a Company
Benefit Plan) has maintained all Company Benefit Plans (including
filing all reports and returns required to be filed with respect
thereto) in material accordance with their terms and is in compliance
in all material respects with all presently applicable provisions of
ERISA, the Internal Revenue Code and any other applicable federal and
state laws. Each Company Benefit Plan which is intended to be qualified
under Section 401(a) of the Internal Revenue Code has either received a
favorable determination letter from the Internal Revenue Service or
will timely request such a letter prior to the expiration of any
remedial amendment period applicable without penalty to the Company
Benefit Plan under the Internal Revenue Code and has at all times been
maintained in accordance with Section 401 of the Internal Revenue Code.
Neither the Company, the Subsidiary nor the Bank has engaged in a
transaction with respect to any Company Benefit Plan that, assuming the
taxable period of such transaction expired as of the date hereof, would
subject the Company, the Subsidiary or the Bank to a tax or penalty
imposed by either Section 4975 of the Internal Revenue Code or Section
502(i) of ERISA.
12
Neither the Company, the Subsidiary nor the Bank is obligated
to provide post-retirement medical benefits or any other unfunded
post-retirement welfare benefits. Neither the Company, the Subsidiary
nor the Bank, nor any member of a group of trades or businesses under
common control (as defined in ERISA Sections 4001(a)(14) and
4001(b)(1)) with the Company, the Subsidiary or the Bank have at any
time within the last six years sponsored, contributed to or been
obligated under Title I or IV of ERISA to contribute to a "defined
benefit plan" (as defined in ERISA Section 3(35)). Within the last six
years, neither the Company, the Subsidiary nor the Bank nor any member
of a group of trades or businesses under common control (as defined in
ERISA Sections 4001(a)(14) and 4001(b)(1)) with the Company, the
Subsidiary or the Bank have had an "obligation to contribute" (as
defined in ERISA Section 4212) to a "multiemployer plan" (as defined in
ERISA Sections 4001(a)(3) and 3(37)(A)).
(xxx) No labor dispute exists or, to the knowledge of the
Company, is imminent with the Company's, the Subsidiary's or the Bank's
employees which could reasonably be expected to materially adversely
affect the financial condition, results of operations or business of
the Company, the Subsidiary and the Bank, taken as a whole.
(xxxi) The Company, the Subsidiary and the Bank are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are customary in the businesses in
which they are engaged; and neither the Company, the Subsidiary nor the
Bank has knowledge of any facts or circumstances that would prevent the
renewal of its existing insurance coverage as and when such coverage
expires or that would prevent such entity from obtaining similar
coverage from similar insurers as may be necessary to continue its
business at a comparable cost.
(xxxii) Each of the Company, the Subsidiary and the Bank
makes and keeps books and records reflecting its assets and maintains
internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of the Company's and the Bank's consolidated financial
statements in accordance with generally accepted accounting principles
and to maintain accountability for the assets of the Company, the
Subsidiary and the Bank, (C) access to the assets of the Company, the
Subsidiary and the Bank is permitted only in accordance with
management's authorization, (D) the recorded accountability for assets
of the Company, the Subsidiary and the Bank is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences, and (E) such controls would prevent or
detect errors or irregularities in amounts that would be material in
relation to the Company's or the Bank's financial statements,
respectively.
(xxxiii) The Company's, Subsidiary's and the Bank's business
systems, including its computer hardware and software, (i) will
correctly and unambiguously process date information at all times,
including as the years 1999 and 2000 are approached and reached; and
(ii) will not suffer any abends, aborts, improper operation, invalid or
incorrect results or other interruptions in operation as a result of
the approach or reaching of any particular date or the improper
processing of any date. "Processing" of
13
date information includes, but is not limited to, accepting input of
dates without ambiguity, outputting all dates in an unambiguous form,
and performing calculations, comparisons or operations or taking
actions or making decisions using dates, portions of dates, or time
periods. The concept of Year 2000 Compliance includes all issues
relating to the handling of dates or time periods, including the
processing of the leap year that will occur in the year 2000. In the
case of products with which the parties provide that the System shall
perform as a larger system, then the expression "Year 2000 Compliant"
means that the larger system shall be Year 2000 Compliant.
(xxxiv) Except as disclosed in the Prospectus, neither the
Subsidiary nor the Bank is currently prohibited (or with respect to the
Bank, at the First Time of Delivery), directly or indirectly, from
paying any dividends to the Company, from making any other
distributions on the Subsidiary's or the Bank's capital stock, from
repaying to the Company any loans or advances to the Subsidiary or the
Bank or from transferring any of the Subsidiary's or Bank's property or
assets to the Company.
(xxxv) The Company, the Subsidiary and the Bank have filed
all foreign, federal, state and local tax returns that are required to
be filed by them and have paid all taxes shown as due on such returns
as well as all other material taxes, assessments and governmental
charges that are due and payable, and, to the knowledge of the Company,
no material deficiency with respect to any such return has been
assessed or proposed. All applicable income and employment taxes have
been withheld and paid for any individuals who would be considered
common law employees of the Company and the Subsidiary for federal
income and employment tax withholding purposes. The Company and the
Bank have prepared or filed all tax information reports, currency
transaction reports and secured all IRS W-9 forms or begun back-up
withholding as required by law, except where the failure to so file is
not reasonably likely to have a material adverse effect. There is no
tax deficiency that has been asserted against the Company or the Bank
that is reasonably likely to have a material adverse effect on the
Company or the Bank, respectively.
(xxxvi) The Company is not, will not become as a result of
the transactions contemplated hereby, and does not intend to conduct
its business in a manner that would cause it to become, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(xxxvii) There are no related-party transactions involving
the Company, the Subsidiary or the Bank or any other person required to
be described in the Prospectus which have not been described as
required.
(xxxviii) The Company and the Bank have entered into the
Agreement and Plan of Merger, set forth as Exhibit ____ to the
Registration Statement, pursuant to which the Bank will merge with and
into Subsidiary (the "Merger Agreement"). The Merger Agreement is in
full force and effect, has been duly and validly authorized,
14
executed and delivered by the parties thereto, constitutes a valid and
binding agreement of the parties thereto, and is enforceable against
the parties thereto in accordance with its terms, except as such
enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting or relating to
enforcement of creditors' rights generally and (ii) general equitable
principles except as rights to indemnification may be limited by
principles of public policy as they relate to federal and state
securities laws, and none of the parties thereto is in default in any
respect thereunder. A complete and correct copy of the Merger Agreement
(including exhibits and schedules) has been delivered to the
Representatives and no changes therein will be made subsequent hereto
and prior to the Closing Date. Immediately prior to the First Time of
Delivery, the Merger became effective and was consummated (without any
waiver of any obligation of any party) and the [Articles of Merger with
respect to the Merger has been filed with and accepted by the Secretary
of State of the State of Florida] and a Certificate of merger has been
issued to Subsidiary by the OCC with respect to the Merger specifying
an effective time prior to the First Time of Delivery. Not later than
immediately prior to the First Time of Delivery each of the Company,
Subsidiary and Bank has received all corporate, shareholder, regulatory
and other approvals required to consummate the Merger.
(xxxix) The representations and warranties made in the Merger
Agreement by the Company and by the Bank are true and correct in all
material respects, except for such changes permitted or contemplated by
such Merger Agreement.
(xxxx) Any certificate signed by an officer of the Company
or the Bank and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by the
Company to each Underwriter as to the matters set forth therein.
(xxxxi) The Company confirms as of the date hereof that the
Company and the Bank are in compliance with all provisions of Section 1
of Laws of Florida, Chapter 92-198, An Act Relating to Disclosure of
Doing Business with Cuba, and the Company further agrees that if it
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with
the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
(xxxxii) Except as disclosed in the financial statements
included in the Registration Statement and Prospectus none of the
Company, the Bank nor the Subsidiary has liabilities, whether accrued,
absolute, contingent or otherwise due or to become due other than
liabilities incurred in the ordinary course of business consistent with
past
15
practice since the date of such financial statements and which could
not have, individually or in the aggregate, a material adverse effect
on the Company, Subsidiary and Bank, taken as a whole.
(xxxxiii) No statement, certificate, instrument, or other
writing furnished or to be furnished by the Company, the Subsidiary or
the Bank to the Representatives pursuant to this Agreement or any other
document, agreement, or instrument referred to herein contains or will
contain any untrue statement of material fact or will omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. No document
to be filed by the Company, the Subsidiary or the Bank with any
regulatory authority in connection with the transactions contemplated
hereby or the Merger, will, at the respective time such documents are
filed, be false or misleading with respect to any material fact, or
omit to state any material fact. All documents that the Company, the
Subsidiary or the Bank is responsible for filing with any regulatory
authority in connection with the transactions contemplated hereby or
the Merger will comply as to form in all material respects with the
provisions of applicable law.
2. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions
herein set forth, (a) the Company agrees to sell to each of the Underwriters,
and each of the Underwriters agrees, severally and not jointly, to purchase from
the Company at a purchase price of $____ per share, the number of Firm Shares to
be purchased by such Underwriter as set forth opposite the name of such
Underwriter in Schedule I hereto and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to issue and sell to each of the Underwriters,
severally and not jointly, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares to be sold by the Company as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the
numerator of which is the maximum number of Optional Shares that such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of the Optional Shares that all of the Underwriters are entitled to
purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase, at
their election in whole or in part on one occasion, up to _______ Optional
Shares, at the purchase price per share set forth in clause (a) in the paragraph
above, for the sole purpose of covering over-allotments in the sale of Firm
Shares. Any such election to purchase Optional Shares may be exercised by
written notice from you to the Company, given within a period of 30 calendar
days after the date of this Agreement and setting forth the aggregate number of
Optional Shares to be purchased and the date on which such Optional Shares are
to be delivered, as determined by you but in no event earlier than the First
Time of Delivery (as hereinafter defined) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice. In the event you elect to purchase all or a
portion of the Optional Shares, the Company agrees to furnish or cause to be
furnished to you the certificates, letters and opinions, and to satisfy all
conditions, set forth in Section 7 hereof at the Subsequent Time of Delivery (as
hereinafter defined).
16
3. OFFERING BY THE UNDERWRITERS. Upon the authorization by you of the
release of the Shares, the several Underwriters propose to offer the Shares for
sale upon the terms and conditions disclosed in the Prospectus.
4. DELIVERY OF SHARES; CLOSING. Certificates in definitive form for the
Shares to be purchased by each Underwriter hereunder, and in such denominations
and registered in such names as The Xxxxxxxx-Xxxxxxxx Company, LLC may request
upon at least 48 hours' prior notice to the Company, shall be delivered by or on
behalf of the Company to you for the account of such Underwriter against payment
by such Underwriter on its behalf of the purchase price therefor by wire
transfer, payable to the order of the Company, in same-day available funds. The
closing of the sale and purchase of the Shares shall be held at the offices of
Xxxxxx & Bird LLP, One Atlantic Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000-0000, or at such other location as you and the Company may agree
upon, except that physical delivery of such certificates shall be made at the
office of The Depository Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The time and date of such delivery and payment shall be, with respect to
the Firm Shares, at 9:00 a.m., Eastern Standard Time, on the third (or if the
Firm Shares are priced, as contemplated by Rule 15c6-1(c) promulgated pursuant
to the Securities Act of 1934, as amended (the "Exchange Act"), after 4:30 p.m.,
Eastern Standard Time, the fourth) full business day after this Agreement is
executed or at such other time and date not less than the seventh full business
day thereafter as you and the Company may agree upon in writing, and, with
respect to the Optional Shares, at 9:00 a.m., Eastern Standard Time, on the date
and at the location specified by you in the written notice given by you of the
Underwriters' election to purchase all or part of such Optional Shares, or at
such other time and date as you and the Company may agree upon. Such time and
date for delivery of the Firm Shares is herein called the "First Time of
Delivery," such time and date for delivery of any Optional Shares, if not the
First Time of Delivery, is herein called a "Subsequent Time of Delivery," and
each such time and date for delivery is herein called a "Time of Delivery." The
Company will make such certificates available for checking and packaging at
least 24 hours prior to each Time of Delivery at the office of The Depository
Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
location specified by you in writing at least 48 hours prior to such Time of
Delivery.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with each
of the Underwriters:
(i) If the Registration Statement has been declared effective
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable, subparagraph (4)) of Rule
424(b) not later than the earlier of (A) the second business day
following the execution and delivery of this Agreement or (B) the
fifteenth business day after the date on which the Registration
Statement is declared effective. The Company will advise you promptly
of any such filing pursuant to Rule 424(b).
17
(ii) The Company will not file with the Commission the
prospectus or the amendment referred to in the second sentence of
Section l(i) hereof, any amendment or supplement to the Prospectus or
any amendment to the Registration Statement unless you have received a
reasonable period of time to review any such proposed amendment or
supplement and consented to the filing thereof (which consent shall not
be unreasonably withheld) and will use its best efforts to cause any
such amendment to the Registration Statement to be declared effective
as promptly as possible. Upon the reasonable request of the
Representatives or counsel for the Underwriters, the Company will
promptly prepare and file with the Commission, in accordance with the
rules and regulations of the Commission, any amendments to the
Registration Statement or amendments or supplements to the Prospectus
that may be necessary or advisable in connection with the distribution
of the Shares by the several Underwriters and will use its best efforts
to cause any such amendment to the Registration Statement to be
declared effective as promptly as possible. If required, the Company
will file any amendment or supplement to the Prospectus with the
Commission in the manner and within the time period required by Rule
424(b) under the Act. The Company will advise the Representatives,
promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement
thereto has been filed and will provide evidence to the Representatives
of each such filing or effectiveness.
(iii) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m. Eastern
Standard Time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
(iv) The Company will advise you promptly after receiving
notice or obtaining knowledge of (A) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or any part thereof or any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or of the initiation or threatening of any
proceeding for any such purpose, (B) the suspension of the
qualification of the Shares for offer or sale in any jurisdiction or of
the initiation or threatening of any proceeding for any such purpose,
or (C) any request made by the Commission or any securities authority
of any other jurisdiction for amending the Registration Statement, for
amending or supplementing the Prospectus or for additional information.
The Company will use its best efforts to prevent the issuance of any
such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(v) If the delivery of a prospectus relating to the Shares
by an underwriter or dealer is required under the Act at any time prior
to the expiration of nine months after the date of the Prospectus and
if at such time any events have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
18
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if for any
reason it is necessary during such same period to amend or supplement
the Prospectus to comply with the Act or the rules and regulations
thereunder, the Company will promptly notify you, and at the Company's
expense, prepare and file with the Commission an amendment or
supplement to the Prospectus that corrects such statement or omission
or effects such compliance and will furnish without charge to each
Underwriter and to any dealer in securities as many copies of such
amended or supplemented Prospectus as you may from time to time
reasonably request. If the delivery of a prospectus by an underwriter
or dealer relating to the Shares is required under the Act at any time
nine months or more after the date of the Prospectus, upon your request
but at the expense of such Underwriter, the Company will prepare and
deliver to such Underwriter as many copies as you may reasonably
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act. Neither your consent to, nor the Underwriters'
delivery of, any such amendment or supplement shall constitute a waiver
of any of the conditions set forth in Section 7.
(vi) The Company promptly from time to time will take such
action to qualify the Shares for offering and sale under the securities
or blue sky laws of such jurisdictions as you may reasonably request
and will continue such qualifications in effect for as long as may be
necessary to complete the distribution of the Shares, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction.
(vii) The Company will promptly provide you, without charge,
(A) two manually executed copies of the Registration Statement as
originally filed with the Commission and of each amendment thereto, (B)
for each other Underwriter a conformed copy of the Registration
Statement as originally filed and of each amendment thereto, without
exhibits, and (C) so long as a prospectus relating to the Shares is
required to be delivered under the Act, as many copies of each
Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto as you may reasonably request.
(viii) As soon as practicable, but in any event not later than
45 days after the end of the Company's fiscal quarter in which the
first anniversary of the effective date of the Registration Statement
occurs, the Company will make generally available to its security
holders an earnings statement of the Company and the Subsidiary, if
any, covering a period of at least 12 months beginning after the
effective date of the Registration Statement (which need not be
audited) complying with Section 11(a) of the Act and the rules and
regulations thereunder.
(ix) During the period beginning on the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company will not, without your prior written consent,
offer, pledge, issue, sell, contract to sell, grant any option, right
or warrant for the sale of, or otherwise dispose of (or announce any of
the foregoing, directly or indirectly), any shares of Common Stock or
securities convertible
19
into, exercisable or exchangeable for, shares of Common Stock, except
as provided in Section 2 and except that the Company may (A) grant
options to the extent described in the Registration Statement pursuant
to the Company's stock option plans; (B) issue shares of Common Stock
upon the exercise of any of the Company's outstanding stock options as
described in the Registration Statement or stock options granted under
clause (A) above.
(x) Subject to compliance with all applicable laws and
regulations, during a period of five years from the effective date of
the Registration Statement, the Company will furnish to you and, upon
request, to each of the other Underwriters, without charge, (A) copies
of all reports or other communications (financial or other) furnished
to shareholders, (B) as soon as they are available, copies of any
reports and financial statements (not to include projections) furnished
to or filed with the Commission, the NASD or any national securities
exchange, and (C) such additional information concerning the business
and financial condition of the Company and the Subsidiary, if any, as
you may reasonably request (subject to the Underwriter's obligation to
handle any material non-public information provided to them by the
Company in a confidential manner and in accordance with their
obligations under applicable federal securities law).
(xi) Neither the Company, the Subsidiary, the Bank nor, with
the consent of the Company, any of its officers, directors or other
affiliates will (A) take, directly or indirectly, prior to the
termination of the underwriting syndicate contemplated by this
Agreement, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of any of the Shares, (B) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of, the Shares or (C) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xii) The Company will apply the net proceeds from the
offering in the manner set forth under the caption "Use of Proceeds" in
the Prospectus.
(xiii) The Company will use its best efforts to cause the
Shares to remain included in the Nasdaq National Market at each Time of
Delivery and for at least one year from the date hereof.
(xiv) If at any time during the period beginning on the date
the Registration Statement becomes effective and ending on the later of
(A) the date 30 days after such effective date and (B) the date that is
the earlier of (1) the date on which the Company first files with the
Commission a Quarterly Report on Form 10-Q or an Annual Report on Form
10-K after such effective date and (2) the date on which the Company
first issues a quarterly or annual financial report to shareholders
after such effective date, any rumor, publication or event relating to
or affecting the Company shall occur as a result of which in your
reasonable opinion the market price of the Common Stock has
20
been or is likely to be materially affected (regardless of whether such
rumor, publication or event necessitates an amendment of or supplement
to the Prospectus), the Company will, after written notice from you
advising the Company to the effect set forth above, forthwith consult
with you concerning any appropriate remedial action, including, without
limitation, the substance of, and the advisability of disseminating a
press release or other public statement, reasonably satisfactory to
you, responding to or commenting on such rumor, publication or event.
6. EXPENSES. The Company and the Bank will pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated hereby are consummated or this Agreement is
terminated pursuant to Section 10 hereof, including, without limitation, all
costs and expenses incident to (i) the reasonable fees, disbursements and
expenses of the Company's, the Subsidiary's and the Bank's counsel and
accountants in connection with the registration of the Shares under the Act and
the Merger and all other expenses in connection with the Merger and the
preparation, printing and filing of the Registration Statement (including all
amendments thereto), any Preliminary Prospectus, the Prospectus and, if
applicable, any amendments and supplements thereto, this Agreement and any blue
sky memoranda; (ii) the delivery of copies of the foregoing documents to the
Underwriters; (iii) the filing fees of the Commission and the NASD relating to
the Shares and the related reasonable fees and disbursements of counsel for the
Underwriters in connection with filings with the NASD; (iv) the preparation,
issuance and delivery to the Underwriters of any certificates evidencing the
Shares, including transfer agent's and registrar's fees; (v) the qualification
of the Shares for offering and sale under state securities and blue sky laws,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters relating thereto; (vi) any listing of the Shares on the Nasdaq
National Market and (vii) any reasonable expenses for travel, lodging and meals
incurred by the Company and any of its officers, directors and employees in
connection with any meetings with prospective investors in the Shares. It is
understood, however, that, except as provided in this Section, Section 8 and
Section 10 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, stock transfer taxes on resale of
any of the Shares by them, and any advertising expenses relating to the offer
and sale of the Shares.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters hereunder to purchase and pay for the Shares to be delivered at
each Time of Delivery shall be subject to the accuracy of the representations
and warranties of the Company contained herein as of the date hereof and as of
such Time of Delivery, to the accuracy of the statements of Company officers
made pursuant to the provisions of Section 7(h) hereof, to the performance by
the Company of their covenants and agreements hereunder, and to the following
additional conditions precedent:
(a) If the registration statement as amended to date has not
become effective prior to the execution of this Agreement, such registration
statement shall have been declared effective not later than 4:00 p.m., Eastern
Standard Time, on the day following the date of this Agreement or such later
date and/or time as shall have been consented to by you in writing. The
Prospectus and any amendment or supplement thereto shall have been filed with
the Commission
21
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing and in accordance with Section 5(a) of this Agreement; if the Company has
elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 p.m. Eastern Standard Time, on the date of this
Agreement; no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted, threatened or, to the knowledge of the
Company and the Representatives, contemplated by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction.
(b) Xxxxxx & Bird LLP, counsel for the Underwriters, shall
have furnished to you such opinion or opinions, dated such Time of Delivery,
with respect to the incorporation of the Company, the validity of the Shares
being delivered at such Time of Delivery, the Registration Statement, the
Prospectus, and other related matters as you may reasonably request, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(c) You shall have received an opinion, dated such Time of
Delivery, of Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, counsel for the Company, in form
and substance reasonably satisfactory to you and your counsel, to the effect
that:
(i) The Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the State of Florida and has the corporate power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement and the Prospectus and to enter into this
Agreement and perform its obligations hereunder. The Company is duly
qualified to transact business as a foreign corporation and is in good
standing under the laws of each other jurisdiction in which it owns or
leases property, or conducts any business, except where the failure to
so qualify would not have a material adverse effect on the financial
condition, results of operations or business of the Company and the
Subsidiary, taken as a whole.
(ii) The Subsidiary has been duly incorporated or
duly formed, is validly existing as a national banking association, in
good standing under the laws of its jurisdiction of incorporation or
organization and has the full power and authority (corporate and other)
to own or lease its properties and conduct its business as described in
the Registration Statement and the Prospectus. The Subsidiary is duly
qualified to transact business as a foreign corporation or association
and is in good standing under the laws of each other jurisdiction in
which it owns or leases property, or conducts any business, except
where the failure to so qualify would not have a material adverse
effect on the financial condition, results of operations or business of
the Company or the Subsidiary taken as a whole. The Merger of the Bank
with and into the Subsidiary is effective and has been consummated
immediately prior to First Time of Delivery as evidenced by the
Certificate of Merger issued by the OCC and the [Articles of Merger
filed and accepted by the Secretary of State of the State of Florida].
The Company and the Subsidiary have each received all corporate,
shareholder, regulatory and other approvals and filed all required
notices necessary to consummate the Merger.
22
(iii) The Company's authorized, issued and
outstanding capital stock is as disclosed in the Prospectus. All of the
issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable
and conform to the description of the Common Stock contained in the
Prospectus. None of the issued shares of capital stock of the Company,
or its predecessors, or the Subsidiary, have been issued or are owned
or held in violation of any statutory preemptive rights of
shareholders, and no person or entity (including any holder of
outstanding shares of capital stock of the Company or the Subsidiary)
has any statutory preemptive or, to such counsel's knowledge, other
rights to subscribe for any of the Shares in the Company or the
Subsidiary.
(iv) Except as disclosed in the Prospectus, all of
the issued and outstanding shares of capital stock of the Subsidiary
have been duly authorized and validly issued, are fully paid and
nonassessable, and, to the knowledge of such counsel, are owned
beneficially by the Company free and clear of all liens, security
interests, pledges, charges, encumbrances, shareholders' agreements,
voting trusts, defects, equities or claims of any nature whatsoever. To
such counsel's knowledge, other than the subsidiary, as listed on
Exhibit [22.01] to the Registration Statement, the Company does not
own, directly or indirectly, any capital stock or other equity
securities of any other corporation or any ownership interest in any
partnership, joint venture or other association.
(v) Other than as disclosed in Schedule 1(viii)
attached hereto, to the knowledge of such counsel, there are no
outstanding (A) securities or obligations of the Company or the
Subsidiary convertible into or exchangeable for any capital stock of
the Company, the Subsidiary or the Bank, (B) warrants, rights or
options to subscribe for or purchase from the Company or the Subsidiary
any such capital stock or any such convertible or exchangeable
securities or obligations or (C) obligations of the Company or the
Subsidiary to issue any shares of capital stock, any such convertible
or exchangeable securities or obligations, or any such warrants, rights
or options.
(vi) The Shares to be issued and sold by the Company
have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be validly issued and fully
paid and nonassessable and will conform to the description of the
Common Stock contained in the Prospectus; the form of certificate
evidencing the Shares complies, in all material respects, with all
applicable requirements of Florida law. None of the authorized or
outstanding shares of Common Stock is subject to any preemptive or
similar right to purchase any shares of Common Stock. The Underwriters
will receive good title to the Shares to be issued and delivered by the
Company hereunder, in good delivery form and free and clear of all
pledges, liens, hypothecations, encumbrances, claims, security
interests, restrictions, agreements, voting trusts and adverse
interests whatsoever.
23
(vii) To the knowledge of such counsel, there are no
contracts, agreements or understandings between the Company or the
Subsidiary and any person granting such person the right to require the
Company, the Subsidiary or the Bank to file a registration statement
under the Act with respect to any securities of the Company, the
Subsidiary or the Bank owned or to be owned by such person or to
require the Company, the Subsidiary or the Bank to include such
securities in the securities registered pursuant to the Registration
Statement (or any such right has been effectively waived) or in any
securities being registered pursuant to any other registration
statement filed by the Company or the Subsidiary under the Act.
(viii) All offers and sales of the Company's capital
stock set forth in Item 15 of Part II of the Registration Statement
were at all relevant times duly registered under the Act or exempt from
the registration requirements of the Act, or if not registered or
exempt in compliance with the Act, any private rights of action for
rescission or damages arising from such failure to register any such
securities are time barred by applicable statutes of limitations or
equitable principles, including laches.
(ix) To such counsel's knowledge, neither the
Company nor the Subsidiary is, or with the giving of notice or passage
of time or both, would be, in violation of its respective Articles of
Incorporation, Articles of Association or Bylaws or other governing
organizational instrument.
(x) The issue and sale of the Shares being issued
at such Time of Delivery and the performance of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with, or (with or without the giving of notice or the passage of time
or both) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which the Company or the Subsidiary is a party or to which any of
their respective properties or assets is subject which is filed as an
Exhibit to the Registration Statement, nor will such action conflict
with or violate any provision of the Articles of Incorporation,
Articles of Association, Bylaws or other governing organizational
instrument of the Company or the Subsidiary or, to such counsel's
knowledge, any statute, rule or regulation (assuming compliance with
all applicable state securities or blue sky laws, as to which such
counsel need express no opinion) or any order, judgment or decree of
any court or governmental agency or body having jurisdiction over the
Company or the Subsidiary or any of their respective properties or
assets.
(xi) No consent, approval, authorization, order or
declaration of or from, or registration, qualification or filing with,
any court or governmental agency or body is required for the issue and
sale of the Shares or the consummation of the transactions contemplated
by this Agreement, except the registration of the Shares under the Act
and such as may be required from the NASD or under state securities or
blue sky laws.
24
(xii) To such counsel's knowledge, except as
disclosed in the Prospectus, there is no litigation, arbitration,
claim, proceeding (formal or informal) or investigation pending or
threatened in which the Company or the Subsidiary is a party or of
which any of their respective properties or assets is the subject
which, if determined adversely to the Company or the Subsidiary,
individually or in the aggregate, reasonably would be expected to have
a material adverse effect on the financial condition, results of
operations or business of the Company or the Subsidiary, taken as a
whole; and, to such counsel's knowledge, neither the Company nor the
Subsidiary is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as do not
and will not individually or in the aggregate have a material adverse
effect on the financial condition, results of operations or business of
the Company and the Subsidiary, taken as a whole.
(xiii) To the knowledge of such counsel and except
where the failure to own or possess such rights could not reasonable be
expected to have a material adverse effect on the business of the
Company and the Subsidiary, taken as a whole, the Company or the
Subsidiary owns or has the right to use all patents, trademarks, trade
names, service marks, copyrights, and applications therefor;
franchises; trade secrets; proprietary or other confidential
information and intangible properties and assets (collectively,
"Intangibles"), including, but not limited to, the right to use the
marks "FLORIDA BANKS, INC." and certain related marks and logos
presently employed by it in connection with its business as presently
conducted or as the Prospectus indicates the Company or the Subsidiary
proposes to conduct; to the knowledge of such counsel, neither the
Company nor the Subsidiary have infringed and are not infringing, nor
will the conduct of Company's or the Subsidiary's business as proposed
in the Prospectus infringe, and neither the Company nor the Subsidiary
have received notice of infringement with respect to asserted
Intangibles of others; and, to the knowledge of such counsel, except
where the alleged infringement is not reasonably likely to have a
material adverse effect on the business of the Company and the
Subsidiary, taken as a whole, and to the knowledge of such counsel
there is no infringement by others of Intangibles of the Company or the
Subsidiary.
(xiv) The Company has full legal right, power and
authority to enter into this Agreement and to issue, sell and deliver
the Shares to be sold by it to the Underwriters as provided herein; and
this Agreement has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery by the
Representatives constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(xv) The Registration Statement and the Prospectus
and each amendment or supplement thereto (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion), as of their respective effective or issue dates,
complied as to form in all material respects with the requirements of
the Act and the rules and regulations thereunder. The descriptions in
the Registration Statement and the Prospectus of statutes, legal and
governmental proceedings or contracts and other documents are accurate
in all material respects and
25
fairly present the information required to be shown; and such counsel
does not know of any contracts or documents of a character required to
be described in the Registration Statement or Prospectus or to be filed
as exhibits to the Registration Statement which are not described and
filed as required.
(xvi) The Registration Statement has been declared
effective by the Commission under the 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 such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or threatened or are
contemplated by the Commission.
(xvii) The Company is not, and will not be as a
result of the consummation of the transactions contemplated by this
Agreement, an "investment company," or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act
of 1940, as amended.
Such counsel shall also state that nothing has come to the attention of
such counsel which gives them reason to believe (i) that the Registration
Statement, or any further amendment thereto made prior to such Time of Delivery,
on its effective date and as of such Time of Delivery, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) that the Prospectus, or any amendment or supplement
thereto made prior to such Time of Delivery, as of its issue date and as of such
Time of Delivery, contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (provided that such counsel need express no belief regarding the
financial statements, notes and related schedules and other financial or
statistical data contained in the Registration Statement, any amendment thereto,
or the Prospectus, or any amendment or supplement thereto). With respect to such
statement, such counsel may state that their belief is based upon the procedures
set forth therein, but is without independent check and verification.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and public officials. Such counsel may also rely on
local counsel as to matters not governed by Georgia law.
(d) You shall have received an opinion, dated such Time of
Delivery, of Xxxxx & Xxxxxxxxx, P.A., counsel for the Bank, in form and
substance reasonably satisfactory to you and your counsel, to the effect that:
(i) The Bank has been duly incorporated or duly
formed, is validly existing as a national banking association, in good
standing under the laws of its jurisdiction of incorporation or
organization and has the full power and authority (corporate and other)
to own or lease its properties and conduct its business as described
26
in the Registration Statement and the Prospectus. The Bank is duly
qualified to transact business as a foreign corporation or association
and is in good standing under the laws of each other jurisdiction in
which it owns or leases property, or conducts any business, except
where the failure to so qualify would not have a material adverse
effect on the financial condition, results of operations or business of
the Bank. The Merger of the Bank with and into the Subsidiary is
effective and has been consummated immediately prior to First Time of
Delivery as evidenced by the Certificate of Merger issued by the OCC
and the [Articles of Merger filed and accepted by the Secretary of
State of the State of Florida]. The Bank has each received all
corporate, shareholder, regulatory and other approvals and filed all
required notices necessary to consummate the Merger.
(ii) None of the issued shares of capital stock of
the Bank have been issued or are owned or held in violation of any
statutory preemptive rights of shareholders, and no person or entity
(including any holder of outstanding shares of capital stock of the
Bank) has any statutory preemptive or, to such counsel's knowledge,
other rights to subscribe for any of the Shares in the Company,
Subsidiary or the Bank.
(iii) Except as disclosed in the Prospectus, all of
the issued and outstanding shares of capital stock of the Bank and
derivative securities have been duly authorized and validly issued, are
fully paid and nonassessable, have been converted into Company common
Stock and have ceased to exist pursuant to the terms of the Merger, and
there is no outstanding or continuing security interest, mortgage,
pledge, lien, encumbrance or claim, no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or
ownership interests in the Bank capital stock. To such counsel's
knowledge, the Bank does not own, directly or indirectly, any capital
stock or other equity securities of any other corporation or any
ownership interest in any partnership, joint venture or other
association.
(iv) To the knowledge of such counsel, there are no
outstanding (A) securities or obligations of the Bank convertible into
or exchangeable for any capital stock of the Company, the Subsidiary or
the Bank, (B) warrants, rights or options to subscribe for or purchase
from the Bank any such capital stock or any such convertible or
exchangeable securities or obligations or (C) obligations of the Bank
to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or
options.
(v) None of the authorized or outstanding shares of
Bank capital stock is subject to any preemptive or similar rights.
(vi) To the knowledge of such counsel, there are no
contracts, agreements or understandings between the Bank and any person
granting such person the right to require the Company, the Subsidiary
or the Bank to file a registration statement under the Act with respect
to any securities of the Company, the Subsidiary or the Bank owned or
to be owned by such person or to require the Company, the Subsidiary or
the
27
Bank to include such securities in the securities registered pursuant
to the Registration Statement (or any such right has been effectively
waived) or in any securities being registered pursuant to any other
registration statement filed by the Company, the Subsidiary or the Bank
under the Act.
(vii) All shares of the Bank's capital stock, were
at all relevant times duly registered under the Act or exempt from the
registration requirements of the Act, or if not registered or exempt in
compliance with the Act, any private rights of action for rescission or
damages arising from such failure to register any such securities are
time barred by applicable statutes of limitations or equitable
principles, including laches.
(viii) To such counsel's knowledge, the Bank is not,
nor with the giving of notice or passage of time or both, would be, in
violation of its respective Articles of Incorporation, Articles of
Association or Bylaws or other governing organizational instrument.
(ix) The issue and sale of the Shares being issued
at such Time of Delivery and the performance of this Agreement and the
consummation of the transactions herein contemplated will not conflict
with, or (with or without the giving of notice or the passage of time
or both) result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or instrument
to which the Bank is a party or to which any of their respective
properties or assets is subject, nor will such action conflict with or
violate any provision of the Articles of Incorporation, Articles of
Association, Bylaws or other governing organizational instrument of the
Bank or, to such counsel's knowledge, any statute, rule or regulation
(assuming compliance with all applicable state securities or blue sky
laws, as to which such counsel need express no opinion) or any order,
judgment or decree of any court or governmental agency or body having
jurisdiction over the Bank or any of their respective properties or
assets.
(x) To such counsel's knowledge, there is no
litigation, arbitration, claim, proceeding (formal or informal) or
investigation pending or threatened in which the Bank is a party or of
which any of its properties or assets is the subject which, if
determined adversely to the Bank, individually or in the aggregate,
reasonably would be expected to have a material adverse effect on the
financial condition, results of operations or business of the Bank;
and, to such counsel's knowledge, the Bank is not in violation of, or
in default with respect to, any statute, rule, regulation, order,
judgment or decree, except as do not and will not individually or in
the aggregate have a material adverse effect on the financial
condition, results of operations or business of the Bank.
(xi) To the knowledge of such counsel and except
where the failure to own or possess such rights could not reasonable be
expected to have a material adverse effect on the business of the Bank,
the Bank owns or has the right to use all patents, trademarks, trade
names, service marks, copyrights, and applications therefor;
franchises; trade secrets; proprietary or other confidential
information and intangible properties and
28
assets (collectively, "Intangibles"), including, but not limited to,
the right to use the marks "FLORIDA BANK, N.A." and "FIRST NATIONAL
BANK OF TAMPA" and certain related marks and logos presently employed
by it in connection with its business as presently conducted; to the
knowledge of such counsel, the Bank has not infringed and is not
infringing, and the Bank has not received notice of infringement with
respect to asserted Intangibles of others; and, to the knowledge of
such counsel, except where the alleged infringement is not reasonably
likely to have a material adverse effect on the business of the Bank,
and to the knowledge of such counsel there is no infringement by others
of Intangibles of the Bank.
Such counsel shall also state that nothing has come to the attention of
such counsel which gives them reason to believe (i) that the Registration
Statement, or any further amendment thereto made prior to such Time of Delivery,
on its effective date and as of such Time of Delivery, contained or contains any
untrue statement of a material fact or omitted or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (ii) that the Prospectus, or any amendment or supplement
thereto made prior to such Time of Delivery, as of its issue date and as of such
Time of Delivery, contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (provided that such counsel need express no belief regarding the
financial statements, notes and related schedules and other financial or
statistical data contained in the Registration Statement, any amendment thereto,
or the Prospectus, or any amendment or supplement thereto). With respect to such
statement, such counsel may state that their belief is based upon the procedures
set forth therein, but is without independent check and verification.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Bank and public officials. Such counsel may also rely on local
counsel as to matters not governed by Florida law.
(e) You shall have received from Deloitte & Touche, LLP
letters dated, respectively, the date hereof and each Time of Delivery, in form
and substance reasonably satisfactory to you, stating that they are independent
public accountants with respect to the Company and the Bank within the meaning
of the Act and the applicable published rules and regulations thereunder, and to
the effect that:
(i) In their opinion, the financial statements and
schedules audited by them and included in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder with respect to registration statements on Form
S-1;
(ii) The unaudited summary and selected financial
information included in the Preliminary Prospectus and the Prospectus
under the captions "Prospectus Summary", "Selected Financial Data",
"Capitalization" and "Proforma Financial Data" agrees with the
corresponding amounts in the audited financial statements included in
the Prospectus or previously reported on by them;
29
(iii) On the basis of a reading of the latest
available audited interim financial statements of the Company, the
Subsidiary and the Bank, a reading of the minute books of the Company,
the Subsidiary and the Bank, inquiries of officials of the Company, the
Subsidiary and the Bank responsible for financial and accounting
matters and other specified procedures, all of which have been agreed
to by the Representatives, nothing came to their attention that caused
them to believe that:
(A) the audited financial statements
described in paragraph (i) above and included in the
Registration Statement do not comply as to form in all
material respects with the accounting requirements of the Act
and the related published rules and regulations thereunder and
any material modifications should be made to such audited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at a specified date not more than five
days prior to the date of delivery of such respective letter,
there was any change in the capital stock, decline in
shareholders' equity or increase in long-term debt of the
Company, the Subsidiary or the Bank, or other items specified
by the Underwriters by the date of this Agreement, in each
case as compared with amounts shown in the latest balance
sheets included in the Prospectus, except in each case for
changes, decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such
letters; and
(C) for the period from the closing date of
the latest statements of revenues and expenses included in the
Prospectus to a specified date not more than five days prior
to the date of delivery of such respective letter, there were
any decreases in revenues or net income of the Company, the
Subsidiary or the Bank, or other items specified by the
Underwriters, or any increases in any items specified by the
Underwriters, in each case as compared with the corresponding
period of the preceding year, except in each case for
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter.
(iv) They have carried out certain specified
procedures, not constituting an audit, with respect to certain amounts,
percentages and statistical and financial information specified by you
by the date of this Agreement which are derived from the general
accounting records of the Company, the Subsidiary and the Bank, which
appear in the Prospectus and have compared and agreed such amounts,
percentages and statistical and financial information with the
accounting records of the Company, the Subsidiary and the Bank or to
analyses and schedules prepared by the Company, the Subsidiary or the
Bank from their respective detailed accounting records.
In the event that the letters to be delivered at the Time of
Delivery referred to above set forth any such changes, decreases or
increases, it shall be a further condition to
30
the obligations of the Underwriters that the Underwriters shall have
determined, after discussions with officers of the Company responsible
for financial and accounting matters and with Deloitte & Touche, LLP,
that such changes, decreases or increases as are set forth in such
letters do not reflect a material adverse change or trend in the
shareholder's equity or long-term debt of the Company, the Subsidiary
or the Bank as compared with the amounts shown in the latest
consolidated balance sheets of the Company, the Subsidiary and the Bank
included in the Prospectus, or a material adverse change or trend in
revenues or net income of the Company, the Subsidiary and the Bank, in
each case as compared with the corresponding period of the prior year.
(f) Since the date of the latest audited financial statements
included in the Prospectus, neither the Company, the Subsidiary nor the Bank
shall have sustained (i) any loss or interference with their respective business
from fire, explosion, flood, hurricane or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as disclosed in or contemplated by the Prospectus, or
(ii) any change, or any development involving a prospective change (including
without limitation a change in management or control of the Company or the
Bank), in or affecting the condition (financial or otherwise), results of
operations, net worth or business prospects of the Company, the Subsidiary or
the Bank, taken as a whole, otherwise than as disclosed in or contemplated by
the Prospectus, the effect of which, in either such case, is in your reasonable
judgment so material and adverse as to make it impracticable or inadvisable to
proceed with the purchase, sale and delivery of the Shares being delivered at
such Time of Delivery as contemplated by the Registration Statement, as amended
as of the date hereof.
(g) The Shares shall be listed on the Nasdaq National Market,
subject to notice of issuance.
(h) Subsequent to the date hereof there shall not have
occurred any of the following: (i) any suspension or limitation in trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market, or any setting of minimum prices for trading on such exchange, or in the
Common Stock by the Commission or the NASD or the Nasdaq National Market; (ii) a
moratorium on commercial banking activities in New York declared by either
federal or state authorities; (iii) any outbreak or escalation of hostilities
involving the United States, declaration by the United States of a national
emergency or war or any other national or international calamity or emergency if
the effect of any such event specified in this clause (iii) in your reasonable
judgment makes it impracticable or inadvisable to proceed with the purchase,
sale and delivery of the Shares being delivered at such Time of Delivery as
contemplated by the Registration Statement, as amended as of the date hereof;
(iv) the enactment, publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects or may materially and adversely
affect the business or operations of the Company, the Subsidiary or the Bank; or
(v) the taking of any action by any governmental body or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a material
adverse effect on the securities markets in the United States.
31
(i) With respect to the Merger:
(i) Each condition to the obligations of the
Company set forth in the Merger Agreements shall have been satisfied,
without waiver or modification, except as may be approved by the
Representatives.
(ii) Each certificate delivered to the Company
pursuant to each Merger Agreement shall have also been delivered to the
Representatives.
(iii) Counsel for the Bank shall have furnished to
the Representatives a letter, in form and substance satisfactory to the
Representatives, to the effect that they are entitled to rely on the
opinion of such counsel delivered to the Company pursuant to the Merger
Agreement as if such opinion were addressed to them.
(iv) Pursuant to the Merger, all of the Bank capital
stock and derivative securities shall have been converted into Company
common stock and have ceased to exist, and there are no outstanding or
continuing security interest, mortgage, pledge, lien, encumbrance or
claim and options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations
into shares of capital stock or ownership interests in the Bank.
(j) The Company shall have furnished to you at such Time of
Delivery certificates of officers of the Company reasonably satisfactory to you
as to the accuracy of the representations and warranties of the Company herein,
including without limitation that the Merger is effective and has been
consummated, at and as of such Time of Delivery, as to the performance by the
Company of all of its respective obligations, covenants and agreements hereunder
to be performed at or prior to such Time of Delivery and as to such other
matters as you may reasonably request, and the Company shall have furnished or
caused to be furnished certificates as to the matters set forth in subsections
(a) and (f) of this Section 7.
(k) The Lock-up Agreements described herein shall be in full
force and effect.
8. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless each Underwriter or controlling person or
representative of such Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon: (i)
any inaccuracy in the representations and warranties set forth in Section 1 of
this Agreement; (ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, any audio or visual materials supplied by the Company or its
representatives and used in connection with the marketing of the Shares,
including without limitation, slides, videos, films and tape recordings and
computer-aided presentations, or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon written
information furnished by or on behalf of the Company filed in any jurisdiction
in
32
order to qualify the Shares under the securities or blue sky laws thereof or
filed with the Commission or any securities association or securities exchange
(each an "Application"); (iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or other material described in
Section 8(a)(ii)(A), or any Application a material fact required to be stated
therein or necessary to make the statements therein not misleading, or (iv) any
failure of the Company to perform its obligations hereunder or under law, and
will reimburse upon demand each Underwriter or controlling person or
representative of such Underwriter for any legal or other expenses reasonably
incurred by such Underwriter or controlling person or representative of such
Underwriter in connection with investigating, defending against or appearing as
a third-party witness in connection with any such loss, claim, damage, liability
or action whether or not such Underwriter or controlling person or
representative of such Underwriter is a party to any action or proceeding;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement or any amendment thereto,
any Preliminary Prospectus, the Prospectus or any amendment or supplement
thereto or any Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through you expressly
for use therein (provided that the Company and the Underwriters hereby
acknowledge that the following constitutes the only information furnished in
writing to the Company by the Underwriters specifically for use in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
such amendment or supplement: (i) the statements in the last paragraph on the
cover page of the Prospectus; (ii) the statements with respect to stabilization
in the paragraph at the bottom of the inside front cover page of the Prospectus;
and (iii) the statements under the caption "Underwriting" in the Prospectus);
provided, further, that with respect to any Preliminary Prospectus, the
foregoing indemnity agreement shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage, liability or expense
purchased Shares, or any person controlling such underwriter, if copies of the
Prospectus were timely delivered to the Underwriter and a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. The Company will
not, without the prior written consent of each Underwriter, settle or compromise
or consent to the entry of any judgment in any pending or threatened claim,
action, suit or proceeding (or related cause of action or portion thereof) in
respect of which indemnification may be sought hereunder (whether or not such
Underwriter is a party to such claim, action, suit or proceeding), unless such
settlement, compromise or consent includes an unconditional release of such
Underwriter from all liability arising out of such claim, action, suit or
proceeding (or related cause of action or portion thereof).
(b) Each Underwriter, severally but not jointly, agrees to
indemnify and hold harmless the Company against any losses, claims, damages or
liabilities, joint or several, to which such person may become subject under the
Act or otherwise, insofar as such losses,
33
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus, the Prospectus or any amendment or supplement thereto,
or any Application or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through you expressly for use therein (provided that the Company and the
Underwriters hereby acknowledge that the following constitutes the only
information furnished in writing to the Company by the Underwriters specifically
for use in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any such amendment or supplement: (i) the statements in the last
paragraph on the cover page of the Prospectus; (ii) the statements with respect
to stabilization in the paragraph at the bottom of the inside front cover page
of the Prospectus; and (iii) the statements under the caption "Underwriting" in
the Prospectus); and will reimburse such persons for any legal or other expenses
reasonably incurred by such person in connection with investigating or defending
any such loss, claim, damage, liability or action. In addition, in a situation
when an Underwriter is an indemnifying party under this subsection (b), the
Underwriter will not, without the prior written consent of the Company, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding (or related cause of action or
portion thereof) in respect of which indemnification may be sought hereunder
(whether or not the Company is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of the Company from all liability arising out of such
claim, action, suit or proceeding (or related cause of action or portion
thereof).
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party, unless and to the extent such omission results in the
forfeiture by the indemnifying party of substantial rights and defenses, shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party and such
indemnified party shall have the right to select separate counsel to defend such
action on behalf of such indemnified party. After such notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and reasonable approval by such
34
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence or (ii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party. Nothing in this Section 8(c)
shall preclude an indemnified party from participating at its own expense in the
defense of any such action so assumed by the indemnifying party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) 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 from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), 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 shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault 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 on the one hand
or the Underwriters on the other 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 contributions pursuant to this subsection (d) 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 subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares 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 Act)
35
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 8 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 8 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers or any persons
controlling the Company, (ii) acceptance of any Shares and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter, or to the Company, its directors or officers, or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 8.
9. DEFAULT OF UNDERWRITERS. (a) If any Underwriter defaults in its
obligation to purchase Shares at a Time of Delivery, you may in your discretion
arrange for you or another party or other parties to purchase such Shares on the
terms contained herein. If within thirty-six (36) hours after such default by
any Underwriter you do not arrange for the purchase of such Shares, the Company
shall be entitled to a further period of thirty-six (36) hours within which to
procure another party or other parties reasonably satisfactory to you to
purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that the Company has so
arranged for the purchase of such Shares, you or the Company shall have the
right to postpone a Time of Delivery for a period of not more than seven days in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus that may thereby be made reasonably necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in subsection (a) above, the aggregate number of such
Shares which remains unpurchased does not exceed
36
one-eleventh of the aggregate number of Shares to be purchased at such Time of
Delivery, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the number of Shares which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of Shares which such Underwriter agreed to purchase hereunder) of the Shares of
such defaulting Underwriter or Underwriters for which such arrangements have not
been made, but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. TERMINATION. (a) This Agreement may be terminated with respect to
the Firm Shares or any Optional Shares in the sole discretion of the
Representatives by notice to the Company given prior to the First Time of
Delivery or any Subsequent Time of Delivery, respectively, in the event that (i)
any condition to the obligations of the Underwriters set forth in Section 7
hereof has not been satisfied in all material respects, or (ii) the Company
shall have failed, refused or been unable to deliver the Shares or to perform in
all material respects all obligations and satisfy all conditions to be performed
or satisfied hereunder at or prior to such Time of Delivery, in either case
other than by reason of a default by any of the Underwriters. If this Agreement
is terminated pursuant to this Section 10(a), the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable counsel fees and disbursements) that shall have been incurred by them
in connection with the proposed purchase and sale of the Shares. The Company
shall not in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by you and
the Company as provided in Section 9(a), the aggregate number of such Shares
which remains unpurchased exceeds one-eleventh of the aggregate number of Shares
to be purchased at such Time of Delivery, or if the Company shall not exercise
the right described in Section 9(b) to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to a Subsequent Time of Delivery, the obligations of the
Underwriters to purchase and of the Company to sell the Optional Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriters or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. SURVIVAL. The respective indemnities, agreements, representations,
warranties and other statements of the Company, its officers, and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person referred to in
Section 8(d) or the Company or any officer or director or controlling person of
the Company referred to in Section 8(d), and shall survive delivery of and
payment for the Shares. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6 and 8 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
37
12. NOTICES. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be mailed, delivered or sent by facsimile
transmission and confirmed in writing to you in care of The Xxxxxxxx-Xxxxxxxx
Company, LLC, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000, Attention:
Corporate Finance Department (with a copy to Xxxxxx & Bird LLP, One Atlantic
Center, 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000-0000, Attention: W.
Xxxxxx Xxxxxx III, Esquire); if sent to the Company, shall be mailed, delivered
or sent by facsimile transmission and confirmed in writing to the Company at
Florida Banks, Inc., 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxx XX,
Xxxxxxxxxxxx, Xxxxxxx 00000-0000, Attention: President (with a copy to Xxxxx,
Xxxxxxxx & Xxxxxxx, LLP, Promenade II, Suite 3100, 0000 Xxxxxxxxx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx 00000, Attention: Xxxxx Xxxxxxx Xxxxxxxx).
13. REPRESENTATIVES. You will act for the several Underwriters in
connection with the transactions contemplated by this Agreement, and any action
under this Agreement taken by you jointly or by The Xxxxxxxx-Xxxxxxxx Company,
LLC will be binding upon all the Underwriters. The Representatives hereby
represent and warrant that they are so authorized to act on behalf of the
several Underwriters.
14. BINDING EFFECT. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters and the Company and to the extent
expressly provided herein, officers and directors and controlling persons
referred to therein and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia without giving effect to any
provisions regarding conflicts of laws.
16. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
17. GENERAL PROVISIONS. This Agreement constitutes the entire agreement
of the parties to this Agreement and supersedes all prior written or oral and
all contemporaneous oral agreements, understanding and negotiations with respect
to the subject matter hereof. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express
or implied) may be waived unless waived in writing by each party whom the
condition is meant to benefit.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us one of the counterparts hereof, and upon
the acceptance hereof by The Xxxxxxxx-Xxxxxxxx Company, LLC, on behalf of each
of the Underwriters, this letter will constitute a binding agreement among the
Underwriters and the Company. It is understood that
38
your acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in the Master Agreement among Underwriters, a copy of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
FLORIDA BANKS, INC.
By:
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President and Chief Executive Officer
The foregoing Agreement is hereby confirmed
and accepted, on behalf of each of the
Underwriters, as of the date first written
above at Atlanta, Georgia.
THE XXXXXXXX-XXXXXXXX COMPANY, LLC
INTERSTATE/XXXXXXX XXXX CORPORATION
By: The Xxxxxxxx-Xxxxxxxx Company, LLC
By:
Name:
Title:
(Authorized Representative)
39
SCHEDULE I
Number of
Optional Shares to
Total Number of Firm be Purchased if
Shares to be Maximum Option
Underwriter Purchased Exercised
----------- --------- ---------
The Xxxxxxxx-Xxxxxxxx Company, LLC
Interstate/Xxxxxxx Lane Corporation
Xxxxxx International
_________ _________
TOTAL UNDERWRITERS (__)
40
Schedule 1(viii)
OUTSTANDING SECURITIES
[INSERT TABLE]
1.
